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[2017] ZALCJHB 208
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Maluleke v University of Venda and Others (JR2125/13) [2017] ZALCJHB 208 (16 May 2017)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not Reportable
Case
no: JR 2125 / 13
In
the matter between:
LIFE REUBEN MALULEKE
Applicant
and
UNIVERSITY OF
VENDA
First Respondent
C A MANNDE N.O (AS ARBITRATOR)
Second Respondent
COMMISSION FOR CONCILIATION,
MEDIATION
AND
ARBITRATION
Third Respondent
Heard:
Considered in Chambers
Delivered:
16 May 2017
Summary:
Application for leave to appeal – no proper case for leave to
appeal made out – application
dismissed with costs
JUDGMENT
SNYMAN,
AJ
Introduction
[1]
The
current applicant for leave to appeal was the first respondent in a
review application brought by the current first respondent
in this
application (University of Venda), in this Court, seeking to review
and set aside an arbitration award made by the second
respondent in
his capacity as an arbitrator of the Commission for Conciliation,
Mediation and Arbitration (‘the third respondent’).
The
current applicant had instituted a cross review application.
[2]
Both
the main review application and cross review was argued before me on
16 September 2016 by both the applicant and first respondent,
and in
a written judgment handed down on 28 February 2017, I upheld the
first respondent’s review application, reviewed and
set aside
the arbitration award of the second respondent, and substituted such
award with a determination that the applicant’s
dismissal was
substantively fair. Consequently, I then also dismissed the
applicant’s cross review application.
[3]
On 15
March 2017, the applicant then filed an application for leave to
appeal. In a written direction to the parties on 30
March 2017,
both parties’ attention was drawn to the provisions of clause
15.2 of the Practice Manual, and the parties were
directed to file
written submissions in terms thereof. Despite this directive, none of
the parties have filed written submissions.
[4]
Clause
15.2 of the Practice Manual provides that an application for leave to
appeal will be determined by a Judge in chambers, unless
the Judge
directs otherwise. I see no reason why the application for leave to
appeal needs to be dealt with in open Court, and
I shall therefore
determine the applicant’s leave to appeal application in
chambers.
[5]
To
further compound the difficulties, and on 10 November 2015, my
associate gave written notice to the first respondent, referring
it
to clause 15.2 of the Practice Manual. In terms of clause 15.2, the
first respondent, as applicant in the leave to appeal application,
had to file written submissions within 10 days. No such
submissions were ever forthcoming. The first respondent has thus
not
complied with the Practice Manual as well.
Non compliance with the Practice
Manual
[6]
As
touched on above, and in terms of clause 15.2 of the Practice Manual,
the applicant in a leave to appeal application is required
to file
written submissions in support of the application for leave to appeal
within 10(ten) days of filing the application for
leave to appeal. No
such submissions were ever forthcoming from the applicant, despite
also being directed to do so.
[7]
In
Ralo
v Transnet Port Terminals and Others
[1]
the Court said
‘…
.
The Practice Manual contains a series of directives, which the Judge
President is entitled to issue. In essence, the manual sets Gout
what is expected of practitioners so as to meet the imperatives of
respect for the court as an institution, and the expeditious
resolution of labour disputes (see clause 1.3). While the manual
acknowledges the need for flexibility in its application (see
clause
1.2), its provisions are not cast in the form of a guideline, to be
adhered to or ignored by parties at their convenience.
’
[8]
Considering
that a Judge is entitled, in terms of the Practice Manual, to decide
a leave to appeal application in chambers based
on written
submissions, the failure to file written submissions in these
instances may be viewed to be similar to a party failing
to appear in
Court to argue the case, and all the consequences associated with it,
which may include dismissing the application
on this basis alone. But
at the very least, this failure by the applicant leaves the leave to
appeal application unmotivated.
[9]
In my
view, the applicant’s failure to file written submissions
despite the clear provisions of the Practice Manual and despite
being
called on to do so, should lead to the dismissal of the application
for leave to appeal for this reason alone. However, and
for the sake
of being complete, I will nonetheless consider the merits of the
application for leave to appeal, on the basis of
the grounds advanced
by the applicant in the application for leave to appeal.
Leave
to appeal
[10]
In deciding whether to
grant leave to appeal to the Labour Appeal Court, the Labour Court
must determine whether there is a reasonable
prospect that another
Court may come to a different conclusion to that of the Court
a
quo
.
[2]
[11]
Recently,
and in
Seathlolo
and Others v Chemical Energy Paper Printing Wood and Allied Workers
Union and Others
[3]
the Court again considered the above test for leave to appeal and
held:
‘
The
traditional formulation of the test that is applicable in an
application such as the present requires the court to determine
whether there is a reasonable prospect that another court may come to
a different conclusion to that reached in the judgment that
is sought
to be taken on appeal. … Further, this is not a test to be
applied lightly — the Labour Appeal Court has
recently had
occasion to observe that this court ought to be cautious when leave
to appeal is granted, as should the Labour Appeal
Court when
petitions are granted. The statutory imperative of the expeditious
resolution of labour disputes necessarily requires
that appeals be
limited to those matters in which there is a reasonable prospect that
the factual matrix could receive a different
treatment or where there
is some legitimate dispute on the law …
’
[12]
As a
general proposition, the applicant’s grounds for seeking leave
to appeal are in essence nothing more but the applicant
disagreeing
with the conclusions I came to, especially where it came to the
evidence and the relevant provisions of law. To merely
disagree with
my conclusions does not establish a reasonable prospect of another
Court coming to a different conclusion as envisaged
by the test in
considering an application for leave to appeal. The applicant
has simply made out no proper case in this regard,
and considering
that this matter dates back to 2013, the following
dictum
from the judgment in
Martin
& East (Pty) Ltd v National Union of Mineworkers and Others
[4]
is apposite:
‘…
I
indicated that the events in this case took place in 2010. The Labour
Relations Act was designed to ensure an expeditious resolution
of
industrial disputes. This means that courts, particularly courts in
the position of the court a quo, need to be cautious when
leave to
appeal is granted.'
[13]
The
applicant has also just once again repeated virtually the same
arguments in the application for leave to appeal, that he advanced
when arguing the matter before me on the merits. I still remain
unconvinced that these arguments have substance. I remain equally
unconvinced that there exists any reasonable prospect that another
Court could come to a different conclusion, on these arguments.
[14]
The
applicant has failed to address several of the pertinent legal
principles I dealt with in my judgment, especially those relating
to
the credibility of witnesses and how evidence must be assessed in
cases of sexual harassment. In my view, there is no reasonable
prospect of another Court, in the light of these clear legal
principles, could come to a conclusion different to the one I came
to.
[15]
I thus conclude that the
applicant, overall,
has
shown no reasonable prospect that another Court could come to a
different conclusion, and the leave to appeal application must
fail.
[16]
As to
costs, the first respondent did not engage in the application for
leave to appeal, and also did not file written submissions.
For
these reasons, I will make no costs order in respect of the
application for leave to appeal
Order
[17]
In
the premises, I make the following order:
1.
The applicant’s application for leave to appeal is dismissed.
_____________________
S Snyman
Acting
Judge of the Labour Court
Appearances:
For the
Applicant:
In person
For the First Respondent:
Bowman Gilfillan Attorneys
[1]
(2015) 36 ILJ 2653
(LC) at para 9. See also
MJRM
Transport Services CC v Commission for Conciliation, Mediation and
Arbitration and Others
(2017)
38 ILJ 414 (LC) at paras 12 – 13;
Tadyn
Trading CC t/a Tadyn Consulting Services v Steiner and Others
(2014)
35 ILJ 1672 (LC)
at
para 11.
[2]
See
National
Education Health and Allied Workers Union v University of Cape Town
and Others
(2003)
24 ILJ 95 (CC)
;
Karbochem
Sasolburg (A Division of Sentrachem Ltd) v Kriel and Others
(1999)
20 ILJ 2889 (LC)
;
Ngcobo v
Tente Casters (Pty) Ltd
(2002)
23 ILJ 1442 (LC);
Volkswagen
SA (Pty) Ltd v Brand NO and Others
(2001) 22 ILJ 993 (LC);
Singh
and Others v Mondi Paper
(2000) 21 ILJ 966 (LC);
Glaxo
Welcome SA (Pty) Ltd v Mashaba and Others
(2000) 21 ILJ 1114 (LC).
[3]
(2016) 37 ILJ 1485
(LC)
at
para 3.
[4]
(2014)
35
ILJ
2399 (LAC)
at
2405J-2406A