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[2017] ZALCJHB 251
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Ndebele v South African Police Service and Another (JR2395/14) [2017] ZALCJHB 251 (4 July 2017)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not Reportable
Case
No: JR 2395 / 14
In
the matter between:
VUYOKAZI
NDEBELE
Applicant
and
THE SOUTH AFRICAN POLICE
SERVICE
First
Respondent
THE NATIONAL COMMISSIONER OF
POLICE
Second
Respondent
Heard: Considered in Chambers
Delivered: 4 July 2017
Summary:
Application for leave to appeal – non compliance with Practice
Manual – no proper case for leave to appeal
made out –
application dismissed
JUDGMENT
SNYMAN, AJ
Introduction
[1]
The
current applicant for leave to appeal was the second respondent in a
review application brought by the current first and second
respondent
in this application (SAPS), seeking to review and set aside
disciplinary proceedings by the State in its capacity as
employer in
terms of Section 158(1)(h) of the LRA.
[2]
The
review application was argued before me on 15 September 2016 by both
the applicant and first and second respondents, and in
a written
judgment handed down on 6 April 2017, I upheld the respondents’
review application, reviewed and set aside the
determination of the
disciplinary hearing chairperson, substituted the determination with
a finding that the applicant was guilty
of the charges, and
determined that the disciplinary proceedings be reconvened in order
to determine an appropriate sanction.
[3]
On 2
May 2017, the applicant then filed an application for leave to
appeal. In a written directive to the parties on 30 May
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.
Leave
to appeal
[5]
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
on 30 May 2017 by my associate.
[6]
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.
’
[7]
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.
[8]
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.
[9]
The
above being said, I will nonetheless consider the application for
leave to appeal, on the merits thereof, as emanating from
the
application for leave to appeal as it stands.
[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 on the facts, especially where it came
to deciding what was the proper evidence before
the disciplinary
hearing chairperson. To merely disagree with my conclusions on the
facts, and then propose that alternative factual
findings should have
been made, does not establish a reasonable prospect of another Court
coming to a different conclusion as envisaged
by the applicable 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]
Further,
and in setting out the factual conclusion the applicant contends I
should have made, the applicant has in effect just once
again
repeated virtually the same arguments that the applicant advanced
when arguing the matter before me on the merits in the
first place. 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]
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.
[15]
As to
costs, the respondents 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
[16]
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: M L Mateme Inc
Attorneys
For the Respondents: The State
Attorney
[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