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[2017] ZALCJHB 360
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Serobe v Eskom Holdings Soc Ltd and Others (JR2529/13) [2017] ZALCJHB 360 (20 September 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Of
interest to other judges
Case
No. JR2529/13
In
the matter between:
SIMON
SEROBE
Applicant
and
ESKOM HOLDINGS SOC LTD
JOSEPH WILSON THEE N.O.
COMMISSION
FOR CONCILIATION, MEDIATION & ARBITRATION
First Respondent
Second Respondent
Third
Respondent
Decided:
In Chambers
Delivered:
20 September 2017
JUDGMENT
- LEAVE TO APPEAL
SALOOJEE
AJ
Introduction
[1]
This is an
application for leave to appeal against the
ex
temporae
judgment handed down on 4 May 2017.
Test
for leave to appeal
[2]
An
applicant for leave to appeal must satisfy the court that it has
reasonable prospects of success in the appeal. In
Smith
v S
[1]
,
the Supreme Court of Appeal held that:
“
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.”
[3]
In
Martin
and East (Pty) Ltd v National Union of Mineworkers and Others
[2]
,
the Court held that there is a stricter test that is applicable for
appeals to the LAC. The Court held, in particular, that the
Labour
Relations Act
[3]
(LRA) was
designed to ensure the expeditious resolution of industrial
disputes and this means that the Labour Court needs
to be cautious
when leave to appeal is granted. There are two sets of interests to
be considered – first, the interest of
the appellant, which is
entitled to have his rights vindicated if there is a reasonable
prospect that another court might come
to a different conclusion and
the interests of the respondent, which may have to wait years for an
appeal to be prosecuted. Second,
where the matter is resolved on own
facts, no novel point of law, no misinterpretation of existing law,
the matter must end at
Labour Court.
[4]
In
Seatlholo
and others v Chemical Energy Paper Printing Wood and Allied Workers
Union and others
[4]
,
Van Niekerk, J stated:
“
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
& 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).”
Grounds for leave to
appeal
[5]
The
application for leave to appeal contains broadly grounds of appeal
related to:
5.1
The Court
failed to act in accordance with a previous order; and
5.2
The
Court failed to find in favour of the applicant on the merits of the
review application.
[6]
The
applicant’s grounds of appeal, on a broad basis, are
inconsistent. While the applicant relies on a failure of the Court
to
act in accordance with a previous order relating to procedural
matters, the applicant nonetheless proceeded with the review
application on the merits and in spite of the order.
[7]
The
basis of the
ex
temporae
judgment is that there is no nexus between the facts presented at
arbitration and the grounds of review. In the absence of a nexus
between the facts and the grounds of review, the review cannot
succeed.
[8]
I
am not convinced that there are reasonable prospects that another
court might come to a different conclusion and that there are
prospects of success on appeal.
Order
[9]
In
the premises, the following order is made:
1.
The
application is dismissed.
2.
The
applicant is ordered to pay the first respondent’s costs.
__________________
Y
Saloojee
Acting
Judge of the Labour Court of South Africa
[1]
2012
(1) SACR 567
(SCA) at par. 7
[2]
(2014)
35 ILJ 2399 (LAC)
[3]
Act
66 of 1995 as amended
[4]
(2016)
37 ILJ 1485 (LC) at par. 3