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[2017] ZALCJHB 307
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Qubekela Projects CC v Mokoena and Others (JR2743/14, J2084/16) [2017] ZALCJHB 307 (25 August 2017)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case no: JR 2743/14
J 2084/16
In the matter between:
QUBEKELA PROJECTS
CC
Applicant
and
MPHAMO
MOKOENA
First Respondent
NTHABISENG
NGWANE
Second
Respondent
COMMISSION FOR CONCILIATION,
MEDIATION AND
ARBITRATION
Third Respondent
Decided: In Chambers
Delivered: 25 August
2017
JUDGMENT-APPLICATION FOR LEAVE TO
APPEAL
PRINSLOO J.
Introduction
[1]
This
Court made an order on 1 June 2017
inter
alia
reviewing
and setting aside an arbitration award and rescinding a Court order
issued on 2 December 2016 under case number J2084/16.
[2]
The
First Respondent (Mokoena) subsequently requested reasons for the
order, which were delivered on 30 June 2017. Having received
the
reasons, Mokoena launched this application for leave to appeal.
[3]
The application is opposed by the Applicant.
Both
parties have filed comprehensive submissions in respect of the leave
to appeal. I have considered the grounds for appeal as
raised by
Mokoena as well as the submissions made in support and in opposition
thereof and I do not intend to repeat those herein.
The
test for leave to appeal.
[4] It is trite that an applicant in
an application for leave to appeal must convince the 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 or where there is some legitimate
dispute on the law.
[6] In
Seatlholo
and Others v Chemical Energy Paper Printing Wood and Allied Workers
Union and Others
[1]
this Court confirmed that the test applicable in applications for
leave to appeal is 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)”.
[7]
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
[2]
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
[8] I have read
Mokoena’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 Mokoena, but I
have considered all of the grounds and
in my view they are all
without merit. To illustrate that the application for leave to appeal
is without merit, I will deal with
only one ground for leave to
appeal. Mokoena submitted that this Court erred in finding that the
arbitrator had to decide the issue
of whether Mokoena was indeed an
employee first and once that issue was decided, the arbitrator should
have heard evidence on the
fairness of the dismissal. Mokoena’s
case is that there is no legal basis for this finding. The reality is
that the arbitrator
made a finding on the fairness of a dismissal,
where there was an unresolved dispute as to whether Mokoena was an
employee that
could be dismissed in the first place and where no
evidence was presented on the fairness of the alleged dismissal.
[9] I have dealt in detail with the
relevant issues in my judgment and there is no need to repeat what is
stated therein for purposes
of this judgment. Grounds for leave to
appeal and submissions are meant to persuade me that there are
reasonable prospects that
another court would arrive at a different
decision.
In casu
I am not persuaded that there is a case made
out for leave to appeal to be granted.
[10] There are no
reasonable prospects that the Labour Appeal Court would arrive at a
different conclusion than that arrived at
by this Court
and scarce judicial
resources should not be spent on an appeal that lacks merit.
[11] In the result I make the
following order:
Order
1.
The
application for leave to appeal is dismissed.
2.
There
is no order as to costs.
_____________________
Connie Prinsloo
Judge
of the Labour Court
[1]
(2016)
37 ILJ 1485 (LC)
[2]
Unreported
judgment of the Supreme Court of Appeal (687/12)
[2013] ZASCA 120
(20 September 2013)