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[2017] ZALCJHB 383
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21st Century Life (Pty) v Nombewu (JS545/16) [2017] ZALCJHB 383 (19 October 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case no: JS 545/16
In
the matter between:
21
ST
CENTURY LIFE (PTY) LTD
Applicant
And
GLADYS
NOMBEWU
Respondent
Decided:
In Chambers
Delivered:
19 October 2017
JUDGMENT: APPLICATION FOR LEAVE TO
APPEAL
MAMOSEBO
AJ
Introduction
[1]
The
applicant, 21
st
Century Life (Pty) Ltd, seeks leave to appeal against the whole of my
judgment delivered on 14 September 2017.
The
grounds
[2]
The
grounds on which the applicant relies spans over five pages and
repeating them will burden this judgment unduly. I am nevertheless
satisfied that the main judgment deals adequately with each one of
the aspects or grounds raised. The applicant is reminded that
it is
not only preferable but also helpful to keep its grounds of appeal
concise and to the point. It is therefore prudent to refer
to the
remarks of Leach J (as he then was) in
Songono
v Minister of Law and Order
[1]
.
My
brother Goosen J, having referred to the
Songono
judgment, had this to say in the unreported judgment of
Iain
Cameron McLaggan v The State
[2]
,
the sentiment of which I share:
“
[8]
The notice of application in this instance sets out an elaborate
discussion of and analysis
of the minutiae of the judgment and the
evidence which apparently exists to contradict it. At times the
“grounds” are
couched in exaggerated terms reflecting the
apparent failings of the judgment. Reference is made to authorities
and in many respects
the so-called grounds of appeal are formulated
as submissions ordinarily advanced in argument. The tone indicates a
lack of respect.”
The test for granting
leave to appeal
[3]
The
test for granting leave to appeal is stipulated as follows in the
Superior Courts Act
[3]
:
“
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
judgements 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.”
[4]
The use of
the word “would” in section 17(1)(a)(i) denotes raising
the threshold of the reasonableness of the prospects
of success.
Previously all that was required for the applicant was to demonstrate
that there was a reasonable prospect that another
court might come to
a different conclusion.
[5]
I found
that the respondent, Ms Nombewu, was dismissed based on operational
requirements, that the dismissal was both procedurally
and
substantively unfair
and
that the respondent had not resigned as maintained by the
applicant/employer. The Labour Court being a court of fairness and
equity and having considered all the evidence before me during the
trial I found that it was just and equitable to grant the orders
as
prayed for by the respondent/employee. The quantification of such
figures was never disputed during the trial.
[6]
Having
dispassionately considered the grounds of appeal and written
submissions by the applicant and the respondent, I am of the
view
that the applicant has not succeeded in meeting the test for leave to
appeal to be granted to as it has no prospects of success
on the
merits. The application must therefore fail.
Costs
[7]
The general
rule is that costs should follow suit. There is no reason why the
general principle should be deviated from.
[8]
In the
premises, the following order is made:
1.
The
application for leave to appeal is dismissed.
2.
The
applicant is ordered to pay the respondent’s costs.
____________________________
M.C. Mamosebo
Acting
Judge of the Labour Court of South Africa
Appearances
For
the applicant:
Mr S.M Mokono
S.M Mokono Attorneys
For
the respondent:
Mr M.R Sehunane
Sehunane Attorneys
[1]
1996 (4) SA
384 (E)
[2]
Case No
CC 70/2011 delivered 04 Oct 2012
[3]
Section 17
of the
Superior Courts Act, 10 of 2013