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[2017] ZALCJHB 314
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NUM obo Magula v Commission for Conciliation, Meditation and Arbitration and Others (JR555/14) [2017] ZALCJHB 314 (31 August 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
no: JR 555/14
In
the matter between
NUM
OBO M. MAGULA
Applicant
and
COMMISSION
FOR CONCILIATION MEDIATION AND
ARBITRATION
First
Respondent
COMMISSIONER
MONDE BOYCE
Second
Respondent
HARMONY
GOLD MINING COMPANY LTD
Third
Respondent
Decided:
In chambers
Delivered:
31 August 2017
JUDGMENT:
APPLICATION FOR LEAVE TO APPEAL
DEALE,
AJ:
[1]
This is an application by the Applicant (the Union) on behalf of M
Magula (Magula) for leave to appeal to the Labour Appeal
Court (LAC)
against my judgment and order handed down on 13 July 2017.
[2]
The Third Respondent (“
Harmony”)
has opposed the
application and filed written submissions.
[3]
In terms of Clause 15.2 of the Practice Manual of the Labour Court an
application for leave to appeal will be decided by a Judge
in
chambers on the basis of the submissions filed in terms of Rule 30
(3A), unless the Judge directs that the application be heard
in open
Court. It is in the interest of justice that this application be
disposed of without delay. Therefore, it would not be
necessary for
it to be heard in open Court.
[4]
For convenience, I will consider each of Magula’s reasons read
with Harmony’s submissions in summary format before
making
conclusions on each.
Preliminary
point in terms of Rule 11 to dismiss the review
[5]
Magula submits that Harmony was incorrect to raise this preliminary
point in its heads of argument. It should instead have done
so in
terms of a substantive Rule 11 application. This would have enabled
Magula to respond by way of affidavit in the usual manner.
[6]
Harmony submits that the Court did not raise the point
meru moto
–
Harmony did so in its heads of argument. The sole issue in Harmony’s
Rule 11 Application was Magula’s unexplained
and unreasonable
delay.
[7]
It is evident from the pleadings and heads of argument before the
Court that Magula would certainly not have been “taken
by
surprise” and thus been prejudiced by Harmony’s
preliminary point to dismiss the review for unreasonable delay.
[8]
The timelines and contents of the submissions in the papers suggest
otherwise. The review hearing was on 13 July 2017. Harmony
had filed
its answering affidavit nearly 4 weeks earlier on 15 June 2017. It
had also filed its heads of argument about 2 weeks
earlier. Both
these documents raised the point of unreasonable delay and were
served on Magula’s legal representatives. There
is no doubt
that Magula would thus have been aware of the point long before the
hearing on 13 July 2017.
[9]
The timelines also show that there was more than enough time for
Magula to have dealt with the point before the hearing of the
review.
He could have done so in a replying affidavit and again in heads of
argument. His legal counsel could also have done so
at the hearing of
the review. However, he failed to use any of these readily available
opportunities – with no explanation.
[10]
I conclude that there is no merit in Magula’s request for leave
to appeal on the ground that the Court raised the point
meru motu
and that it was wrong to deal with Harmony’s Rule 11
application to dismiss the review application for unreasonable delay.
Preliminary point to archive review application
[10]
Magula submits that the Court should have archived the review
application and that it went too far by
meru moto
dismissing
the review for unreasonable delay.
[11]
Magula had not raised this issue until this application for leave to
appeal. There were plenty of opportunities for him to
have raised the
point at this stage. In any event, even if he had raised the point
earlier, it is highly unlikely that the Court
would have accepted it
as the basis to dismiss the review application. It will be evident
from this judgment that there were more
than enough reasons for the
Court to entertain the Rule 11 application and to dismiss the review.
[12]
In addition, and as Harmony has properly indicated in its papers,
Magula would have needed to show good cause in an application
why the
matter should not have been archived. This in turn would have
required him to provide a reasonable explanation for the
delay in
doing so.
[13]
Magula gave no plausible reason for the delay in prosecuting the
review application. It is therefore improbable that he would
have
been able to do so in an application to archive the review.
[14]
I conclude that there is no merit in Magula’s submissions on
this point.
No
hearing on the merits of the review
[15]
Magula submits that the Court was wrong to dismiss the review without
hearing the merits of the application.
[16]
Despite the imperfections in the record and Magula’s failure to
perform the preparatory tasks required of a
dominus litus
party,
both parties were present and represented by lawyers at the hearing
on 13 July. Mr Olivier, for Harmony indicated he was
ready and able
to proceed with the hearing on the merits of the review.
[17]
The Court was prepared to proceed with the hearing of the review on
the merits to dispose of the matter after many years of
protracted
delays. The Court invited Magula’s representative to proceed
and to present Magula’s submissions on the
merits. It went
further to warn the representative that the Court would consider
dismissing the review for unreasonable delay if
Magula chose not to
proceed.
[18]
The Court stood the matter down for a short while to enable Magula’s
legal counsel to take instructions from his instructing
attorney. The
latter was regrettably not in attendance at court to hear the
proceedings and to give instructions.
[19]
When the court reconvened, Magula’s counsel indicated that his
instructions were not to proceed with the hearing.
[20]
I conclude that Magula had a fair opportunity to present his case on
the merits of the review, but he failed to do so for no
good reason.
There is therefore no merit in this point as a reason to grant leave
to appeal.
The
test applicable in applications for leave to appeal.
[21]
It
is trite that there exists no automatic right for leave to appeal in
our law. An applicant must satisfy this Court that another
the Labour
Appeal Court could come to a different conclusion than that of this
Court. In the matter of
Smith
v S
[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 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
succees on appeal and that those prospects are not remote but
have a
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”.
[22]
In
Dince
and others v Department of Education North West Province and
others
[2]
the court stated that the test is whether another court, acting
reasonably, might come to a different conclusion having regard
to the
facts and law.
[23]
In
Seatlholo
and Others v Chemical Energy Paper Printing Wood and Allied Workers
Union and Others
[3]
this Court confirmed the fact 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”
[24]
I have dealt with Magula’s submissions in support of his
application for leave to appeal. I am not persuaded that they
are
enough to grant the Magula a passage to the LAC. I am furthermore not
satisfied that his submissions have an impact on his
prospects of
success on appeal.
[25]
After fully considering the contents of the arbitration award and
Harmony’s submissions, I conclude that there are no
reasonable
prospects of success in Magula’s application for review. This,
in addition to Magula’s failure to provide
a plausible
explanation for the delay in prosecuting the review, is a further and
compelling reason to decline this application
for leave to appeal.
[26]
Magula’s case must therefore fail and scarce resources should
not be wasted on matters which are destined to fail. On
this point I
am guided by the authority in Toyota SA where the Constitutional
Court (per Nkabinde J) had this to say in respect
of speedy
resolution to labour disputes:
“
Time
periods in the context of labour disputes are generally essential to
bring about timely resolution of the disputes. The
dispute
resolution dispensation of the old Labour Relations Act
[4]
was uncertain, costly, inefficient and ineffective. The new
Labour Relations Act
[5]
(LRA)
introduced a new approach to the adjudication of labour disputes.
This alternative process was intended to bring about
the expeditious
resolution of labour disputes which, by their nature, require speedy
resolution. Any delay in the resolution
of labour disputes
undermines the primary object of the LRA. It is detrimental not
only to the workers who may be without
a source of income pending the
resolution of the dispute but, ultimately, also to an employer who
may have to reinstate workers
after many years”.
[27]
This Court cannot lose sight of this purpose. I do not believe that
the LAC, presented with the same facts, would arrive at
a different
conclusion.
[28]
In the premises, I make the following order:
Order
1.
The application for leave to appeal is dismissed;
2.
There is no order as to costs.
____________________
PE
Deale
Acting
Judge of the Labour Court of South Africa
[1]
[(475/10)
[2011] ZASCA 15
(15 March 2011) at para 7
[2]
[2010] 6 BLLR 631
(LC) at para 3
[3]
(2016) 37 ILJ 1485 (LC) at para 3
[4]
Act 28 of 1956.
[5]
Act 66 of 1995.