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[2017] ZALCJHB 290
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Kekana v Amalgamated Beverages Industries (ABI), A division of the South African Beverages Ltd and Others (J1009/13) [2017] ZALCJHB 290 (11 August 2017)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case no: J1009/13
In the matter between:
SEOKA DAVID
KEKANA
Applicant
and
AMALGAMATED BEVERAGES INDUSTRIES
(ABI), A DIVISION OF THE SOUTH
AFRICAN
BEVERAGES
LTD
First Respondent
CINDY MULLER
Second and further
(named in
annexure “A”
hereto)
Respondents
Decided: In Chambers
Delivered: 11 August
2017
JUDGMENT-APPLICATION FOR LEAVE TO
APPEAL
PRINSLOO J.
Introduction
[1]
This
Court made an order on 02 December 2016
inter
alia
dismissing
the Applicant’s claim and further ordering that Mr Sebola,
counsel for the Applicant, is not entitled to charge
a fee for the
heads of argument he drafted and that any fee he received for such
heads of argument, should be refunded to the Applicant.
[2]
The
Applicant subsequently requested reasons for the order, which were
delivered on 05 June 2017. Having received the reasons, the
Applicant
launched this application for leave to appeal.
[3]
The
application is opposed by the Respondent and it has filed submissions
in support of its opposition. The Applicant has not filed
submissions
in support of his application for leave to appeal as provided for in
Rule 30(3A). Be that as it may, I have considered
what is stated in
the Applicant’s application for leave to appeal.
The
test for leave to appeal.
[4]
It is
trite that an applicant in an application for leave to appeal must
convince he court
a
quo
that it has reasonable prospects of success on appeal. What the test
requires is the reasonable likelihood that another court,
presented
with the same facts and evidence as this Court, could come to a
different conclusion than the one arrived at by this
Court.
[5]
Appeals
should be limited to matters where there is a reasonable prospect
that the factual matrix could receive a different treatment
of where
there is some legitimate dispute on the law.
[6]
In
the matter of
S
v Smith
[1]
the Supreme Court
of Appeal held 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 reasonable 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 success 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’
[7]
In
Seatlholo
and Others v Chemical Energy Paper Printing Wood and Allied Workers
Union and Others
[2]
this Court confirmed that the test applicable in applications for
leave to appeal is more stringent and held as follows:
“
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. As the respondents observe, the use of the
word “would” in s17(1)(a)(i) are 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 and
another
(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, 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 (See the judgment by Davis JA
in
Martin
and East (Pty) Ltd v NUM
(2014) 35
ILJ
2399 (LAC), and also
Kruger
v S
2014 (1) SACR 369
(SCA) and the ruling by Steenkamp J in
Oasys
Innovations (Pty) Ltd v Henning and another
(C 536/15, 6 November 2015)”.
[8]
In deciding
this application for leave to appeal I am also guided by the
dicta
of
the Supreme Court of Appeal where it held in
Dexgroup
(Pty) Ltd v Trustco Group
[3]
that
:
”
The
need to obtain leave to appeal is a valuable tool in ensuring that
scarce judicial resources are not spent on appeals that lack
merit.
It should in this case have been deployed by refusing leave to
appeal.”
Grounds for leave to appeal
[9]
I
have read the Applicant’s grounds for leave to appeal and
having
considered those and applying the aforesaid principles applicable to
applications such as this one, I am not persuaded that
there are
reasonable prospects that the Labour Appeal Court would arrive at a
different conclusion than that arrived at by this
Court.
I do not intend to
repeat or address all the grounds for appeal raised by the Applicant,
but I have considered all of the grounds
and in my view they are
without merit. To illustrate that the application for leave to appeal
is without merit, I will deal with
what appears to be the main ground
for leave to appeal. The Applicant submits that this Court erred in
refusing to rescind the
order of Rabkin-Naicker J, by stating
inter
alia
that;
9.1. that Rabkin-Naicker J was not
competent to review the arbitration award because a ‘new party’
FAWU was introduced
in the proceedings despite it not being a
judgment creditor. FAWU was only a representative of the
Applicants at arbitration;
9.2. Rabkin-Naicker J failed to
consider that the Respondent only cited FAWU and not the Applicant
personally;
9.3. The review application was
dismissed in the absence of FAWU and in the absence of proof that the
Applicant was aware of the
review;
9.4. This Court erred in failing to
accept Mr Sebola’s argument that upon certification of the
arbitration award, the award
is deemed to be an order of the Labour
Court and that it follows that the Labour Court was not competent to
review and set aside
its own orders.
[10] There is no merit in these
submissions, I have already dealt in detail with these issues in my
judgment and there is no need
to repeat what is stated therein for
purposes of this judgment. It is unfortunate that the Applicant
persists with these submissions
as grounds for leave to appeal.
Grounds for leave to appeal and submissions are meant to persuade me
that there are reasonable
prospects that another court could arrive
at a different decision and are not meant to be a repetition of
submissions made in the
main hearing. I am not persuaded that there
is a case made out for leave to appeal to be granted.
[11] I am not
persuaded that there are reasonable prospects that the Labour Appeal
Court would arrive at a different conclusion
than that arrived at by
this Court
[12]
This
application for leave to appeal is misconceived and it is unfortunate
that the Applicant failed to take note of the issues
raised in the
reasons I provided for the order I have issued.
[13] In the result I make the
following order:
Order
1.
The
application for leave to appeal is dismissed with costs.
_____________________
Connie Prinsloo
Judge
of the Labour Court
[1]
2010 (1) SACR at
576 (SCA)
[2]
(2016) 37 ILJ 1485
(LC)
[3]
Unreported
judgment of the Supreme Court of Appeal (687/12)
[2013] ZASCA 120
(20 September 2013)