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[2017] ZALCJHB 249
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AMCU obo Sibiya and Others v Shanduka Coal (Pty) Ltd, Graspan Colliery (JS649/13) [2017] ZALCJHB 249 (4 July 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
no: JS 649/13
In
the matter between:
AMCU
obo JOHN SIBIYA AND 151 OTHERS
Applicant
and
SHANDUKA
COAL (PTY) LTD, GRASPAN COLLIERY
Respondent
Considered
in chambers.
Delivered:
4 July 2017
RULING:
APPLICATION FOR LEAVE TO APPEAL
TLHOTLHALEMAJE,
J:
[1]
Following upon trial proceedings, judgment in this matter was
delivered on 25 April 2017. The order granted was as follows;
i. ‘The dismissal of the 60
individual applicants as identified in Annexure ‘A’ to
the applicants’ amended
statement of claim was substantively
fair, but procedurally unfair.
ii. The respondent is ordered to pay
to each of the individual applicants as identified in (i) above,
compensation in the amount
equivalent to two (2) months’ salary
calculated at the rate of their remuneration as at the date of their
dismissal.
iii. There is no order as to costs.’
[2]
The applicant has since filed an application for leave to appeal
against that judgment and order. The respondent opposed the
application.
[3]
The material facts of this case that gave rise to the current
application are recorded in the judgment, and no purpose will
be
served in burdening this ruling with a repetition thereof.
[4]
Central to the applicants’ application as correctly pointed out
on behalf of the respondent is the contention that the
Court did not
properly deal with the evidence presented at trial or that it had
erred in its factual evidential findings. The applicant
further take
issue with the relief granted and the fact that costs were not
awarded in its favour.
[5]
It is trite that for an
application for leave to appeal to be successful, it is required of
the party seeking such leave to demonstrate
that there are reasonable
prospects that another court, in this instance, the Labour Appeal
Court, would come to a different conclusion
to that reached in the
judgment that is sought to be taken on appeal
[1]
.
As to what this test entails was addressed by the Supreme Court of
Appeal in
S v Smith
[2]
as follows;
‘
What
the test of reasonable prospects of success postulates is a
dispassionate decision, based on the facts and the law that a court
of appeal could reasonably arrive at a conclusion different to that
of the trial court. In order to succeed, therefore, the appellant
must convince this court on proper grounds that he has prospects of
succeed on appeal and that those prospects are not remote but
have
realistic chance of succeeding. More is required to be established
than that there is a mere possibility of success, that
the case is
arguable on appeal or that the case cannot be categorised as
hopeless. There must, in other words, be a sound, rational
basis for
the conclusion that there are prospects of success an appeal’
[6]
In considering the current
application, it is taken into account that that the Labour Appeal
Court has directed that caution must
be exercised by judges of this
Court when seized with applications for leave to appeal. There is a
further requirement that judges
of this court must ensure that the
matters that are sent to the Labour Appeal Court are limited to those
in which there is a reasonable
prospect that the facts could be
treated differently and/or where there is some legitimate dispute on
the law
[3]
.
[7]
I have carefully considered the grounds upon which leave to appeal is
sought, and the submissions made by both parties in support
of and in
opposition to the application. I have further reflected upon my
judgement and hold the firm view that the issues raised
by the
respondent in this application and grounds upon which leave to appeal
is sought were adequately dealt with in that judgment.
Furthermore,
the respondent had also correctly pointed out that the applicant has
not raised disputes in regard to the Court’s
application of the
law or the application of any legal principle.
[8]
In regards to the issue of
costs, it is trite that the provisions of section 162 of the LRA
empowers this Court to make an award
of costs upon a consideration of
the requirements of law and fairness, and that the
normal
rule that costs follow the result is not automatically applicable in
Labour Court proceedings.
[4]
This is even more apposite in this case where the applicant was
partially successful.
[9]
In the light of the above, I am of the view that there exist no sound
or rational basis for the conclusion that there are reasonable
prospects that the Labour Appeal Court would on the facts or the law,
come to a different conclusion.
[10]
I have again had regard to the requirements of law and fairness, and
notwithstanding the ill-considered nature of this application,
I will
refrain from awarding any cost order.
[11]
In the premises, I make the following order:
1. The application for leave to appeal
is dismissed.
2. There is no order as to costs
__________________
E Tlhotlhalemaje
Judge
of the Labour Court of South Africa
[1]
See
Superior Courts Act 10 of 2013
:
Section 17
(1):
(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.”
[2]
2012 (1)
SACR 567
(SCA) (15 March 2011)
at
para 7
[3]
See also
Khena
v Passenger Rail Agency of South Africa (J2767/16) [2017] ZALCJHB 32
(1 February 2017)
at para 4;
Martin
and East (Pty) Ltd v NUM (2014) 35 ILJ 2399 (LAC
)
[4]
Trevlyn
Ball v Bambalela Bolts (Pty) Ltd
[
2013]
(9) BLLR 843
(LAC)
at
para [29]