About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2017
>>
[2017] ZALCJHB 322
|
|
Autozone Holdings (Pty) Ltd t/a Autozone v Moolman and Others (JR649/15) [2017] ZALCJHB 322 (7 September 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Case
No: JR 649/15
In
the matter between:
AUTOZONE
HOLDINGS (PTY) LTD T/A
Applicant
AUTOZONE
and
JOHAN
MOOLMAN
First Respondent
DISPUTE
RESOLUTION CENTRE FOR
Second Respondent
THE
MOTOR INDUSTRY BARGAINING COUNSEL
JANINE
JOHNSON
Third Respondent
Considered:
In Chambers
Delivered:
7 September 2017
JUDGMENT:
LEAVE TO APPEAL
KINTA
AJ
[1]
This
is an application for leave to appeal by the applicant, Autozone
Holdings (Pty) Ltd (Autozone), which is an employer of Johnson,
against the whole of this Court’s judgment and order dated
26 May 2017, in which the Court found that, the arbitration
award of the first respondent, Johan Moolman (Arbitrator), is
reasonable, and dismissed the applicant’s application to review
it.
[2]
At
the outset, it has to be noted that, the judgment has a typing error
in paragraph twenty (20), the second last word, which should
be
“latter”
and not “
letter”.
[3]
In
determining whether an application for leave to appeal should be
granted, the court must take various factors into consideration.
Chief of which is whether the applicant has to the satisfaction of
the Court demonstrated that there are reasonable prospects of
success
on appeal.
[1]
This principle was
postulated in
Smith
v S
[2]
where
it was held:
“
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
success 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 on appeal
.
[Footnotes omitted]
[4]
A
further factor that this Court must considered, as cautioned by the
Labour Appeal Court
[3]
, is that
judges of this Court must exercise caution when seized with an
application for leave to appeal, and must ensure that matters
that
are elevated to the appeal court must be limited to disputes in which
there are reasonable prospects that the facts could
be treated
differently and or where there is some legitimate dispute on the
issue of law.
[5]
In
the application for leave to appeal, the applicant states that the
six weeks’ time period is not applicable to this matter
as it
is a review against a Compliance Order Ruling of the second
respondent.
[6]
In
paragraph 4.1 of the review application, the applicant indicates that
the review application is in terms of section 145
[4]
of the Labour Relations Act.
[5]
(LRA) Therefore, the submission that it was in terms of section 158
(1) (g)
[6]
of the LRA is
disingenuous.
[7]
The
applicant further submits that, even if the review application was in
terms of section145 (1), the Court was bound to consider
a
condonation application from the bar, and that no explanation for the
delay is required.
[8]
The
applicant further submits that the Court erred in finding that the
arbitrator’s ruling is reasonable, and that the ruling
is in
fact irrational and untenable, but does not state the facts upon
which this submission is based.
[9]
In
its submission, the applicant suggests that its counsel was, during
the hearing, considering postponing the application to apply
for
condonation but the Court indicated that counsel should proceed to
address the merits.
[10]
During
the hearing, the Court heard argument on both the issue of the
lateness of the review, the failure to apply for condonation,
and the
merits of the review, all of which the Court was entitled to do.
[11]
Counsel
for the applicant never applied for postponement of the hearing in
order to apply for condonation. It was not for the Court
to prompt
counsel to apply for condonation, but the Court actually drew
counsel’s attention to the lateness.
[12]
In
the judgment, at paragraph 18, the Court dealt with the award and
indicated why it found it to be reasonable. The applicant does
not
deal with this part of the judgment in its application for, and
submissions on leave to appeal.
[13]
In
particular, it does not indicate the basis on which the appeal court
would find the award to be unreasonable
[14]
I
have carefully considered the grounds upon which leave to appeal is
sought, and the submissions in support of the application.
I have
further reflected upon my judgment and order and having considered
the requirements of the law and fairness, I am not persuaded
that the
applicant has made out a case that another court would reasonably
arrive at a decision different from the one reached
by this Court.
Therefore, the application for leave to appeal stands to be dismissed
[15]
In
the premise, the following order is made:
Order:
1.
The
application for leave to appeal is dismissed:
2.
There
is no order as to costs.
___________________
E.S
Makinta
Acting
Judge of the Labour Court of South Africa
[1]
Section 17
of the
Superior Courts Act 10 of 2013
:
(1)
Leave to Appeal may only be
given where the judge or judges concerned are of the opinion that-
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
[2]
2012 (1) SACR 567
(SCA) at para 7
[3]
Martin
and East (Pty) Ltd v NUM (2014) 35 ILJ 2399 (LAC):
This
was a case which should have ended in the labour court. This
matter should not have come to this court. It stood
to be
resolved on its own facts. There is no novel point of law to
be determined nor did the Court
a
quo
misinterpret
existing law.
There
was no incorrect application of the facts; in particular, the
assessment of the factual justification for the
dismissals/alternative
sanctions.
I
would urge labour courts in future to take great care in ensuring a
balance between expeditious resolution of a dispute and
the rights
of the party which has lost. If there is a reasonable prospect that
the factual matrix could receive a different treatment
or there is a
legitimate dispute on the law, that is different. But this
kind of case should not reappear continuously
in courts on appeal
after appeal, subverting a key purpose of the Act, namely the
expeditious resolution of labour disputes
[4]
Section
145:
Review
of arbitration awards
(1)
Any party to a
dispute
who alleges a defect in any
arbitration proceedings under the auspices of the Commission may
apply to the Labour Court for an
order setting aside the arbitration
award -
(
a)
within six weeks of the date that the award was
served
on
the applicant, unless the alleged defect involves the commission of
an offence referred to in
Part 1
to
4
, or
section 17
,
20
or
21
(in
so far as it relates to the aforementioned offences) of Chapter 2 of
the
Prevention and Combating of Corrupt Activities Act, 2004
; or
(
b)
if the alleged defect involves an offence referred to in
paragraph
(a)
, within six weeks of the date that the
applicant discovers such offence.
(1A)
The Labour Court may on good cause shown condone the late filing of
an application in terms of subsection (1).
(2)
A defect referred to in subsection (1), means -
(
a)
that the commissioner -
(i)
committed misconduct in relation to the duties of the commissioner
as an arbitrator;
(ii)
committed a gross irregularity in the conduct of the arbitration
proceedings; or
(iii)
exceeded the commissioner‘s powers; or
[5]
Act 66 of 1995 as
amended.
[6]
Section 158:
Powers
of Labour Court
(1)
The Labour Court may –
…
(
g)
subject to section 145, review the performance or purported
performance of any function provided for in
this Act
on any
grounds that are permissible in law;