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[2017] ZALCJHB 228
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Genet Mineral Processing (Pty) Ltd v CCMA and Others (JR1701/15) [2017] ZALCJHB 228 (13 June 2017)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
reportable
Of
interest to other judges
case
no: JR 1701/15
In
the matter between:
GENET
MINERAL PROCESSING (PTY)
LTD
First
applicant
and
CCMA
First
respondent
MOKABANE
N.O.
Second
respondent
ESWUSA
obo
MAGAGULA
Third
respondent
Delivered:
13 June 2017
JUDGMENT
STEENKAMP
J
Introduction
[1]
The applicant, Genet, applies for leave to appeal against my
ex
tempore
judgment of 22 March 2017.
[2]
That
judgment was handed down following an application to review an
arbitration award following the dismissal of the employee, Mr
Magagule. The arbitrator found that the dismissal was unfair. I
dismissed the application for review with no order as to costs.
The
award was not so unreasonable that no other arbitrator could have
come to the same conclusion.
[1]
[3]
The applicant delivered its application for leave to appeal on 28
April 2017, without having obtained a transcript of the
ex tempore
judgment as provided for in clause 14.5 of this Court’s
Practice Manual. My secretary brought that to the parties’
attention
on 18 May 2017. Yet I only received the transcript for my
editing and signature on 1 June 2017. I have considered both parties’
submissions in that context.
Grounds of appeal
[4]
The applicant argues that:
4.1 The arbitrator –
and this Court – should have decided the fairness of the
employee’s dismissal with reference
to his alleged misconduct
on 11 and 26 April, and not – as reflected on the charge sheet
– on 18 and 27 April 2015.
4.2 Smuts gave sufficient
evidence of misconduct on 11 and 26 April.
4.3 The award was so
unreasonable that no other arbitrator could have come to the same
conclusion.
The test
[5]
The test to be applied is that referred to in
s 17
of the
Superior
Courts Act, 10 of 2013
.
Section 17(1)
provides:
Leave
to appeal may only be given where the judge or judges concerned are
of the opinion that –
(a) (i) the appeal would
have a reasonable prospect of success; or
(ii) there is some other
compelling reason why the appeal should be heard, including
conflicting judgments on the matter under consideration;
(b) the decision sought
on appeal does not fall within the ambit of
section 16
(2) (a); and
(c) where the decision
sought to be appealed does not dispose of all the issues in the case,
the appeal would lead to a just and
prompt resolution of the real
issues between the parties.
[6]
As Van
Niekerk J recently pointed out
[2]
, 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. The use of the word “would” in
s17
(1) (a) (i) is indicative of a raising of the threshold, since
previously all that was required for the applicant to demonstrate
was
that there was a reasonable prospect that another court might come to
a different conclusion (see
Daantjie
Community and others v Crocodile Valley Citrus Company (Pty) Ltd
(75/2008)
[2015] ZALCC 7
(28 July 2015). 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. 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 (See the
judgment by Davis
JA in
Martin
& East (Pty) Ltd v NUM
(2014) 35 ILJ 2399 (LAC), and also
Kruger
v S
2014
(1) SACR 369
(SCA) and the ruling in
Oasys
Innovations (Pty) Ltd v Henning
(C 536/15, 6 November 2015). See also
Beaurain
v Martin NO
(2014) 35
ILJ
2454 (LC).
Evaluation
[7]
As in
Martin & East
, this case mainly turns on the factual
matrix that served before the arbitrator. It doesn’t raise any
novel point of law.
And on the reasonableness test for reviews as it
stands, there is no prospect that another court would come to a
different conclusion.
Conclusion
[8]
There are no reasonable prospects that another court will come to a
different conclusion, given the hurdle to succeed on review.
[9]
I did not award costs
a quo
. The matter should have ended
there. The union should not have had to incur further costs in
opposing this application.
Order
The
application for leave to appeal is dismissed with costs.
_______________________
Anton
Steenkamp
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANT:
R Grundlingh
Instructed
by Joubert attorneys.
THIRD
RESPONDENT: Goldberg attorneys.
[1]
Sidumo
v Rustenburg Platinum Mines Ltd
[2007]
12 BLLR 1097 (CC).
[2]
Napo v
SAPS
(Unreported, case no JR 2704/08).