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[2017] ZALCJHB 330
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Zondo and Others v St Martins School (J3020/12, JS68/2014, J1026/12) [2017] ZALCJHB 330 (13 September 2017)
REPUBLIC
OF SOUTH AFRICA
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Not
of interest to other judges
Case
no: J 3020/12
JS
68/2014
J
1026/12
In
the matter between
ZONDO
N & 7 OTHERS
And
ST MARTINS SCHOOL
Applicants
Respondent
Date
heard: In
chambers:
Date
delivered: 13 September 2017
Summary:
Application for leave to appeal
JUDGMENT
- LEAVE TO APPEAL
COETZEE
AJ
[1]
I made an order on 15 May 2017.
I ordered that the applicants in their claim for automatic unfair
dismissal, the applicants are
not at liberty to proceed with the
procedural unfairness allegation on trial since they haven't followed
the stipulations of section
189A (18) of the Labour Relations Act
[1]
.
I made a further order on 15 May 2017 (the second order) that the
applicants are to begin presenting their case with regard to
the
automatic unfair dismissal in the absence of an agreement to the
contrary.
[2]
In the
ex tempore
judgment with reasons of 18 May 2017 I
granted absolution from the instance with costs in respect of the
claim for payment of money.
[3]
The applicants on 5 June 2017 filed an application for leave to
appeal against those parts of the order of 15 May 2017 referred
to
above and the whole of the order of 18 May 2017.
[4]
The application for leave to appeal sets out the various grounds of
appeal. It raises one new ground and that is that the Court
has
altered its judgement by "replacing" it with a "new
one". This grant refers to the ex tempore judgement
followed by
the edited written judgement.
[5]
The applicant and the respondent filed written submissions in support
and in opposition to the application for leave to appeal.
[6]
The application for leave to appeal is opposed.
[7]
I have considered the application and the written representations in
chambers.
[8]
In terms of Rule 30 (2)
‘
If
leave to appeal has not been made at the time of judgment or order,
an application for leave must be made and the grounds for
appeal
furnished within 15 days of the date of the judgment or order against
which leave to appeal is sought, except that the court
may, on good
cause shown, extend that period'
[9]
The application was made timeously.
[10]
Section 17
of the
Superior Courts Act, No 10 of 2013
regulates an
application for leave to appeal from a decision of a High Court. It
reads as follows:
'17. Leave
to appeal.
—
(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;
(
b
) the decision sought on
appeal does not fall within the ambit of
section 16
(2) (
a
);
and
(
c
) where the decision sought
to be appealed does not dispose of all the issues in the case, the
appeal would lead to a just and prompt
resolution of the real issues
between the parties'.
[11]
This section also applies to
applications for leave to appeal in the Labour Court.
[2]
[12]
The Court in
Mgezeni
Gasbat Nxumalo v the National Bargaining Council for the Chemical
Industry (NBCCI) and Others
[3]
conveniently summarised the approach to an application for leave to
appeal:
'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) and also
Seatlholo
and Others v Chemical, Energy, Paper, Printing, Wood and Allied
Workers' Union and Others
[4]
.'
[13]
I do not intend to deal with each of the grounds of appeal
separately.
[14]
The Court didn't "replace"
the
ex tempore
-judgement.
It was merely followed up in writing. This is permissible
[5]
.
[15]
The applicants submit that the Court erred in making an order that
the applicants are limited to dispute the substantive fairness
of
their alleged automatically unfair retrenchment.
[16]
It is common cause that the retrenchment occurred in accordance with
section 189A.
It is further common cause that the applicants did not
approach the Labour Court in terms of
section 189A
(13).
[17]
There is no substance in this ground of appeal.
[18]
The applicants submit that the court erred in various respects in
granting absolution from the instance.
[19]
The applicants have not raised any material grounds other than those
issues raised in the hearing of the matter which matters
were
addressed in the reasons for the judgment.
[20]
In my view after careful consideration of the applicant's stated
grounds for leave to appeal and the submissions, there
is
nothing that persuades me that any appeal would have a reasonable
prospect of success.
[21]
There are no other compelling reasons why leave to appeal should be
granted.
[22]
I ordered the applicants in the trial to pay the costs. There is,
however, no reason why a cost order should be made in this
application for leave to appeal.
[23]
I make the following order:
1.
The application for leave to appeal is dismissed.
2.
There is no order as to costs.
________________
Coetzee
AJ
Acting
judge of the Labour Court
Representation:
For
the applicants:
Advocate M S Sebola
Instructed
by:
Ramaite-Nesengani Attorneys
For
the Respondent:
Nothnagel Attorneys
[1]
Act 66 of 1995
[2]
Section 151 of the Labour Relations Act, Act 66 of 1995
[3]
JR1170 /2013 unreported
[4]
(2016) 37 ILJ 1485 (LC)
[5]
S v Wells
1990 (1) SA 816
Eight at 819 G – 82 G