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[2017] ZALCJHB 488
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KPMM Road and Earthworks (Pty) Ltd v Association of Mineworkers and Construction and Others (J1520/16) [2017] ZALCJHB 488; (2018) 39 ILJ 609 (LC) (1 November 2017)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not
Reportable
Case
no: J 1520 / 16
In
the matter between:
KPMM
ROAD AND EARTHWORKS (PTY) LTD
Applicant
and
ASSOCIATION
OF MINEWORKERS AND
CONSTRUCTION
UNION
First Respondent
INDIVIDUALS
SET OUT IN ANNEXURE “FA1”
Second
to Further Respondents
Heard:
Considered in Chambers
Delivered:
1 November 2017
Summary:
Application for leave to appeal – case for leave to appeal made
out – leave to appeal
granted
JUDGMENT
SNYMAN,
AJ
Introduction
[1]
The current applicants for leave to appeal
were the respondents in a contempt application brought by the
applicant in the main matter
(the current respondent). In this
judgment, I will continue to refer to the parties as cited in the
main application and
in my judgment in respect of which leave to
appeal is sought.
[2]
The application was argued before me on 11
November 2016 by the applicant and respondents, and in a written
judgment handed down
on 12 September 2017, I upheld the applicant’s
contempt application, and concluded that the respondents were indeed
in contempt
of Court.
[3]
On 4 October 2017, the respondents then
filed an application for leave to appeal again my whole judgment.
This application
for leave to appeal was also followed by written
submissions as contemplated by clause 15.2 of the Practice Manual and
Rule 30(3A)
of the Labour Court Rules, by both parties, as the
applicant opposed the application for leave to appeal.
[4]
Further in terms of clause 15.2 of the
Practice Manual, it is provided that an application for leave to
appeal will be determined
by a Judge in chambers, unless the Judge
directs otherwise. I see no reason why the application for leave to
appeal needs to be
dealt with in open Court, and I shall therefore
determine the respondents’ leave to appeal application in
chambers.
Leave
to appeal
[5]
In deciding whether to
grant leave to appeal to the Labour Appeal Court, the Labour Court
must determine whether there is a reasonable
prospect that another
Court would come to a different conclusion to that of the Court
a
quo
, or in other words the
appeal would have a reasonable prospect of success.
[1]
As said in
South African
Clothing and Textile Workers Union and Others v Stephead Military
Headwear CC
[2]
:
‘
It
is trite that for an application for leave to appeal to be
successful, it is required of the party seeking such leave to
demonstrate
that there are reasonable prospects that another court,
in this instance, the Labour Appeal Court, would come to a different
conclusion
to that reached in the judgment that is sought to be taken
on appeal. …
’
[6]
In
Seathlolo
and Others v Chemical Energy Paper Printing Wood and Allied Workers
Union and Others
[3]
the Court considered the above test for leave to appeal and held:
‘
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. … 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 …
’
[7]
And
in
Member
of the Executive Council for Health, Eastern Cape v Mkhitha and
Another
[4]
the Court described ‘reasonable prospects of success’ as
follows:
‘
Once
again it is necessary to say that leave to appeal, especially to this
Court, must not be granted unless there truly is a reasonable
prospect of success. Section
17(1)(a)
of the Superior Cou
rts
Act 10 of 2013 makes it clear that leave to appeal may only be given
where the judge concerned is of the opinion that the appeal
would
have
a reasonable prospect of success; or there is some other compelling
reason why it should be heard.
An
applicant for leave to appeal must convince the court on proper
grounds that there is a reasonable prospect or realistic chance
of
success on appeal. A mere possibility of success, an arguable case or
one that is not hopeless, is not enough. There must be
a sound,
rational basis to conclude that there is a reasonable prospect of
success on appeal.
’
[8]
I am indebted to the parties for filing
detailed and informative written submissions on the issue of leave to
appeal. What
is pleasing is that these submissions focus on the
pertinent issues on which leave to appeal sought, coupled with proper
argument
relating specifically to those grounds. It is not, as
I have often found to be the case, just simply a rehashing of the
original
argument when the matter was first argued.
[9]
From the outset, I am satisfied that the
respondents’ application for leave to appeal raises important
policy considerations
which in my view deserves the attention of the
Labour Appeal Court. There are, as said in
Seathlolo
,
legitimate disputes on the law, and how the law should be applied in
contempt proceedings relating to collective conduct in the
course of
strike action under the LRA. I believe that it is important for
the Labour Appeal Court to consider exactly what
obligations there
are on trade unions and trade union officials where it comes to
compliance with Court Orders. On this basis,
the respondents have in
my view made out a case for leave to appeal to be granted.
[10]
Further, I appreciate that this matter has
factual complexity. I am satisfied that there is a reasonable
prospect that another Court
would conclude differently on the facts,
and especially where it comes to the resolution of possible disputes
of fact, and what
is necessary to establish a legitimate dispute of
fact, in contempt proceedings. Thus, there is a reasonable prospect
that another
Court may decide the factual matrix otherwise. For
this reason as well, the respondents should be granted leave to
appeal.
[11]
Because
of the judgment of the Constitutional Court in
Matjhabeng
Local Municipality v Eskom Holdings Ltd and Others; Mkhonto and
Others v Compensation Solutions (Pty) Ltd
[5]
,
which was handed down after my judgment
in
casu
and thus did not feature in my reasoning, it may well be appropriate
for the Labour Appeal Court to reconsider the matter, having
due
regard to this judgment. This is especially the case where it comes
to the issue of penalization in the context of civil contempt
proceedings.
[12]
I thus conclude that the respondents, overall,
have
made out a proper case for leave to appeal to be granted, and there
is indeed a reasonable prospect that another Court would
come to a
different conclusion.
Order
[13]
In the premises, I make the following
order:
1.
The respondents’ application for
leave to appeal is granted.
2.
The respondents are given leave to appeal
to the Labour Appeal Court against the whole of my judgment handed
down on 12 September
2017.
3.
Costs are to be costs in the appeal.
_____________________
S
Snyman
Acting
Judge of the Labour Court
Appearances:
For
the Applicant:
Knowles Husain Lindsay Inc Attorneys
For
the Respondents:
Larry Dave Attorneys
[1]
See
Section
17(1)(a)
of the
Superior Courts Act 10 of 2013
;
Molefe
v MMARAWU and Others
[2017] ZALCJHB 337 (13 September 2017);
Mbawuli
v Commission for Conciliation, Meditation and Arbitration and Others
[2017] ZALCJHB 275 (1 August 2017);
Glencore
Operations South Africa (Pty) Ltd v NUM obo Maripane and Others
[2017] ZALCJHB 147 (11 May 2017).
[2]
[2017] JOL 37932B
(LC) at para 7.
[3]
(2016) 37
ILJ 1485 (LC)
at
para 3.
[4]
[2016] JOL
36940
(SCA) at paras 16 – 17. Also compare Smith v S
[2011] JOL 26908
(SCA) at para 7; Greenwood v S
[2015] JOL 33082
(SCA) at para 4; Kruger v S
[2014] JOL 31809
(SCA) at para 2.
[5]
[2017] ZACC 35
(26 September 2017).