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2017
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[2017] ZALCJHB 361
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Alpine Swiss Foods CC v Food and Allied Workers Union obo Munyani and Others (JR2680/13) [2017] ZALCJHB 361 (22 September 2017)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not
Reportable
C
ase
no: jR2680/13
In
the matter between:
ALPINE
SWISS FOODS CC
Applicant
and
FOOD
AND ALLIED WORKERS UNION
OBO
MUNYANI,ELLA &11 OTHERS
First
Respondent
COMMISSION
FOR CONCILIATION
MEDIATION
AND ARBITRATION
Second Respondent
TELADIA,SHAHID
N.O
Third respondent
Delivered
:
22 September 2017
RULING:
APPLICATION FOR LEAVE TO APPEAL
VAN
NIEKERK J
[1]
This is an application for leave to appeal against the whole of the
judgement delivered by this court on 4 August 2017 when
the court
dismissed, with costs, an application to review and set aside a
rescission ruling made by the third respondent on 5 December
2013.
[2]
The test to be applied is that set out in section 17 of the Superior
Courts act, 10 of 2013. Leave to appeal may only be granted
in
circumstances where the appeal would have a reasonable prospect of
success. This court has held that this is not a test to be
applied
lightly and that the statutory imperative of expeditious dispute
resolution requires appeals to be limited to those matters
where
there is a reasonable prospect that the factual matrix could receive
a different treatment or where there is a legitimate
dispute on the
law.
[3]
Nothing raised in the applicant’s grounds for appeal meets
these criteria or adds anything to what was argued in the review
application. I accordingly deal with only some of the grounds for
appeal raised in the present application. In particular, and
in
regard to the second ground of appeal concerning the telephone call
made to Lewis by the CCMA prior to the hearing in question,
the
applicant did not deny that it has an employee by that name, nor did
it dispute that Lewis was in contact with the CCMA on
16 September
2013. The fact of the telephone conversation is also not in dispute.
Further, the fact that the applicant was aware
of the hearing date is
not in dispute – the applicant submitted only that it did not
receive notification of the hearing
in the form in which it contends
it was entitled. Again, the issue was whether the applicant had been
notified of the hearing,
not whether it received a notice of set down
by means of one of the methods of service for which it contends. As
the court held,
proof of registered mail from the post office and the
undisputed telephone conversation between the CCMA and Lewis,
constituted
sufficient proof that the applicant was indeed aware of
the hearing.
[4]
In my view, an appeal would not have a reasonable prospect of success
and the application stands to be dismissed. There is no
reason why
costs would not follow the result.
I
make the following order:
1. The application
for leave to appeal is dismissed, with costs.
André
van Niekerk
Judge