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[2017] ZALCJHB 349
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Breed v Laser Cleaning Africa (JR1693/16) [2017] ZALCJHB 349 (3 October 2017)
Not
reportable
THE
LABOUR COURT OF SOUTH AFRICA,
HELD
AT JOHANNESBURG
Case
No: JR1693/16
In
the matter between:
PIETER
BREED
Applicant
and
LASER
CLEANING AFRICA
First
Respondent
Handed
down on 3 October 2017
JUDGEMENT
ON APPLICATION FOR LEAVE TO APPEAL
LAGRANGE
J
Introduction
[1]
In April this year the applicant has filed an “urgent notice of
application for appeal” against my judgment
in the above
matter handed down on 24 March 2017 in which I dismissed his
application to review and set aside an arbitration award
in which the
arbitrator found that the applicant’s dismissal was
procedurally and substantively fair. In his notice he wished
to
appeal to “... a full bench of the Labour Court ...,
alternatively to the Supreme Court of appeal or a Higher Court...”
against the judgement. That application was opposed by the respondent
on the basis that the applicant appeared to mistakenly believe
that
he has a direct right of appeal in terms of Rule 9 of the Labour
Court Rules, which applies only to direct appeals provided
for in the
Labour Relations Act, 66 of 1995
. He should have followed the
application for leave to appeal procedure in Rule 30 of the Labour
Court Rules. The respondent immediately
advised him that his
application was defective because he was trying to appeal against my
judgement without obtaining my leave
to do so and called on him to
withdraw the application, which he did not. Later, the applicant
corresponded with my secretary and
advised that his application
should be held in abeyance as he had already launched an ‘urgent
Appeal and petition’
in the Labour Appeal Court which was not
subject to the ‘leave for appeal process in the Labour Court’.
[2]
For the sake of clarity, because the applicant had not applied for
leave to appeal from the Labour Court, but had then purportedly
withdrawn in pending the outcome of the application he had initiated
in the Labour Appeal Court, I made a declaratory order on
4 May 2017
that there was no application for leave to appeal pending in terms of
Rule 30 of the Labour Court Rules. I did not make
an adverse cost
order at that stage because I felt it would be appropriate for the
LAC to address that issue in relation to the
application which the
applicant was persisting with before it.
[3]
On 23 August 2017, the applicant brought a new application in this
court, this time for leave to appeal rather than a direct
appeal. It
is opposed by the first respondent. In this notice of application he
incorporated the grounds of appeal that were contained
in his
previous urgent direct appeal and adds one additional ground.
[4]
Applications for leave to appeal are governed by the provisions of
Rule 30 of the Labour Court Rules. Rule 30 (1) and (2) state:
“
(1) An application
or to appeal to the Labour Appeal Court may be made by way of a
statement of the grounds leave, at the time of
the judgement or
order.
(2) If leave to appeal
has not been made at the time of judgement or order, an application
for the must be made and the grounds
furnished within 15 days of the
date of the judgement or order against which leave to sort, except
that the court may, on good
cause shown, extend that period.”
The
applicant makes no apology, nor offers any explanation why he has
only filed this application nearly 5 months late. Consequently,
he
has not shown good cause why the court should entertain the late
application, and I am strongly inclined simply to dismiss it
for want
of compliance with the requirement of obtaining condonation for such
a late application. However, the respondent did not
raise any
objection to the late filing of the application and accordingly, I
will consider his application for leave to appeal
notwithstanding the
egregious delay which appears to have been caused by the applicant’s
initial unwillingness to follow
the Court rules and procedures.
Principles
[5]
In terms of
section 17
(1) (h) (i) of the
Superior Courts Act, 10 of
2013
, aside from other circumstances which are not applicable in this
case, leave to appeal may only be granted if a judge is of the
opinion that the appeal would have “a reasonable prospect of
success”. That does not mean that merely because another
court
might come to a different conclusion leave to appeal should be
granted. The court must also consider if such a result is
not merely
a theoretical possibility but there is some likelihood that this
would be the case.
[6]
In
Seathlolo
& others v Chemical Energy Paper Printing Wood & Allied
Workers Union & others
[1]
this court summarised the
approach to be adopted to applications for leave to appeal under
s
17:
“
As the respondents
observe, the use of the word 'would' in
s 17(1)(a)(i)
is 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 & others v Crocodile
Valley Citrus Co (Pty)
Ltd & 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 H 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 National Union of Mineworkers
& others (2014) 35 ILJ
2399 (LAC), and also Kruger v
S 2014
(1) SACR I 369 (SCA) and the
ruling by Steenkamp J in Oasys Innovations (Pty) Ltd v Henning &
another (C536/15 6 November 2015).”
[2]
Grounds of appeal
[7]
In my judgment, I concluded with the following summation of the
applicant’s review application:
“
[28] Even on a
very indulgent assessment of the applicant’s grounds of review,
he has not met the threshold set by the LAC
in showing any failures
in the arbitrator’s reasoning he complains of which would have
necessarily altered the outcome if
they had not been made. As
mentioned, if the ‘grounds of review’ as set out by the
applicant had been prepared by a
legal professional, they would
probably have been rejected out of hand as not settling out
recognised grounds of review.”
[8]
In his application for leave to appeal, in which he incorporated the
grounds of appeal set out in his initial direct appeal,
he mainly
reiterates or expands on the grounds of review which were considered
in the original judgement, or raises new issues
which should have
been part of the Grounds of review in his initial review application.
In so far as he reiterates arguments already
addressed in my
judgement, I do not intend to revisit those issues and I am satisfied
that another court would not decide those
differently. The grounds of
appeal which relates to issues arising from the judgement itself and
the proceedings are addressed
below.
Reference to the
applicant as a ‘layperson’
[9]
In my judgement, I made the following introductory remark at
paragraph [9]
“
[9] I appreciate
that the applicant is a layperson. His grounds of review are
formulated more like grounds of appeal and are somewhat
inchoate even
as grounds of appeal. As such, his application stands to be dismissed
on this basis alone. However, I have considered
the applicant’s
complaints about the arbitrator as if they were grounds of review
relating to the reasonableness of the award,
making generous
allowance for this severe defect in the pleadings.”
The
applicant, places his own religious interpretation on the use of the
term ‘layperson’ and construed this as a term
indicating
bias on my part. He goes on to suggest that his lack of proficiency
in the procedure to be followed was used against
him in my judgement.
Nothing could be further from the truth. Any reasonable person
reading the passage above would realise that
the court was making an
allowance in the applicant’s favour by treating his grounds of
appeal as if they were raised as grounds
of review. There is no merit
in this ground.
Permitting the respondent
to make submissions without being granted leave to file an opposing
affidavit.
[10]
The review application had been enrolled on the unopposed role and
the respondent was refused leave to file an opposing affidavit,
having belatedly filed a notice of opposition. The applicant had
objected to the late filing of the first respondent’s answering
affidavit and the first respondent claimed that it was preparing a
condonation application and requested a postponement of the
review
hearing so that it could file it. Understandably, the applicant
strongly objected to any postponement been granted and after
considering submissions from both parties as well as a submission
from Ms Lancaster, an attorney, who volunteered to assist the
applicant
pro bono
on the postponement issue, I dismissed the
postponement application and accordingly in the absence of the
answering affidavit’s
late filing being condoned, the contents
of the affidavit did not form part of the pleadings in the review
application. The first
respondent was compelled to make its
submissions based on the record and the applicant’s affidavits.
[11]
The applicant now objects to the court having entertained those oral
representations by the respondent and contends that the
court relied
on those representations. Firstly, it is normal practice in this
court and the high court that provided a respondent
party has given
notice of its opposition to an application, even if it not permitted
to file an opposing affidavit, the respondent
may still make
submissions in argument on the applicant’s own papers, if it
elects not to apply for a postponement of the
application or, as in
this case, the application for postponement was dismissed. Secondly,
the applicant made no objection, as
he now does, to the respondent’s
representative appearing in the hearing. The matter was
comprehensively argued by the applicant
and he replied in detail to
the respondent’s submissions. Consequently, I am satisfied that
there is no merit in this ground
of appeal.
[12]
A large number of the applicant’s grounds of appeal consist of
claims that the court decided that the Commissioner findings
were
‘correct’. The judgement concerned the reasonableness of
the Commissioner’s findings and not their correctness.
That is
why it is possible that two commissioners hearing the same evidence
might reasonably differ in the findings they make.
The submissions of
the applicant in this regard unfortunately reflect that he has still
failed to appreciate that the review proceedings
were not appeal
proceedings and that the court does not consider.
[13]
The remaining grounds of appeal essentially really revisit the
applicant’s contention that he was entitled to an investigation
complying with the rules of natural justice prior to the convening of
the disciplinary enquiry and that the disciplinary enquiry
convened
by the employer did not meet the requisite standards of natural
justice or procedural fairness. I can add no more than
was said in
the judgement about the applicant’s misconceptions of law on
these issues and I am satisfied that it is extremely
unlikely that
another court would come to a different view on those issues.
[14]
One other issue raised the applicant’s original “urgent
notice of application for appeal” was at paragraph
8 of that
notice. The applicant suggests that the court erred in finding that
the employer successfully imposed a vehicle policy
on him. In fact
paragraph [24] of the judgement makes it clear that in deciding the
matter I did not assume that the applicant
had agreed to the new
policy adopted by the employer. Similarly, the judgment made no
finding that the commissioner was reasonable
in not finding that the
applicant had reserved all his rights before the disciplinary enquiry
as alleged in paragraph 35. Similarly,
at paragraph 33, the applicant
claims the court erroneously found that he had ‘simply
reimbursed’ the employer. The
reference can only be to
paragraph [26] of the judgment where I commented on the applicant’s
own perception that reimbursement
of the employer for damaged
property was an adequate remedy, even if the damage had been caused
recklessly. Other examples of the
applicant misconstruing the plain
meaning of the judgement may be cited but these serve to illustrate
that much of the applicant’s
criticism is not based on an
accurate reading of the judgment.
[15]
I am satisfied that the applicant has not advanced grounds that would
lead me to believe that there is a probability that another
court
might reach a different conclusion.
[16]
On the question of costs, the court cannot ignore that the applicant
only belatedly followed the correct procedure in lodging
this
application for leave to appeal despite being alerted to the correct
approach in April this year by the respondent and by
my ruling. He
chose to ignore these and pursue a direct application for leave to
appeal to the LAC, or alternatively to petition
the LAC. His legal
meanderings have put the respondent to considerable inconvenience,
and it is appropriate that the respondent
should not have to bear the
costs of opposing this appeal which was out of time in any event.
Order
In
light of the above,
[1] The application for
leave to appeal is dismissed with costs.
_______________________
Lagrange
J
Judge
of the Labour Court of South Africa
[1]
(2016) 37 ILJ 1485 (LC)
[2]
At
1485, para [3]