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[2017] ZALCJHB 452
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Paramasivan v Commission for Conciliation, Mediation and Arbitration and Others (JR1643/15) [2017] ZALCJHB 452 (28 November 2017)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not Reportable
Case
no: JR 1643 / 15
In
the matter between:
RAMANATHAN KUTHALAM PARAMASIVAN
Applicant
and
COMMISSION FOR CONCILIATION,
MEDIATION
AND ARBITRATION
First Respondent
M TSATSIMPE N.O. (AS
ARBITRATOR)
Second Respondent
SYSINT TECHNOLOGIES (PTY)
LTD
Third Respondent
OCCUPATIO BUSINESS SERVICES (PTY)
LTD
Fourth Respondent
Heard:
Considered in Chambers
Delivered:
28 November 2017
Summary:
Application for leave to appeal – non-compliance with Practice
Manual – application
dismissed
Application
for leave to appeal – no proper case for leave to appeal made
out – application dismissed
JUDGMENT
SNYMAN, AJ
Introduction
[1]
The
current applicant for leave to appeal was also the applicant in a
review application brought in this Court, seeking to review
and set
aside an arbitration award made by the second respondent in her
capacity as an arbitrator of the Commission for Conciliation,
Mediation and Arbitration (the first respondent).
[2]
The
review application was argued before me on 9 November 2016, and in a
judgment handed down on 15 August 2017, I dismissed the
applicant’s
review application with no order as to costs. The applicant
then filed an application for leave to appeal
on 5 September 2017.
[3]
Clause
15 of the Practice Manual applies to applications for leave to
appeal. In particular, clause 15.2 provides:
‘
Within
10 days of the filing of the application for leave to appeal, the
party seeking leave must file its submissions in terms
of Rule 30(3A)
and the party opposing the leave must file its submissions five days
thereafter. …’
[4]
The
applicant did not file such written submissions, despite written
notice by my associate on 11 September 2017 to the applicant,
drawing
the applicant’s attention to clause 15 of the Practice Manual
and calling on the applicant to file written submissions.
[5]
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 applicant’s leave to appeal
application in chambers.
Failure
to comply with the Practice Manual
[6]
It is
clear that the applicant did not comply with the Practice Manual, in
that the applicant never filed written submissions as
required, and
actually directed to do. The situation is compounded by the fact that
the third respondent’s attorneys in fact
wrote to the
applicant’s attorneys on 10 October 2017, recording the
applicant’s failure to file the written submissions
concerned,
and then enquiring when the same will be filed. On 12 October 2017,
the applicant’s attorneys answered and said
the submissions
would be filed on 16 October 2017. Not only were no written
submissions forthcoming from the applicant’s
attorneys as
promised, but they then withdrew as attorneys on 8 November 2017. So,
and as matters stand, we are now more than two
months later, with no
further progress and no written submissions filed.
[7]
The
applicant is obliged to comply with the provisions of the Practice
Manual, which is not just some or other guideline which parties
can
adhere to at their leisure. As said in
National
Education Health and Allied Workers Union on behalf of Leduka v
National Research Foundation
[1]
:
The
Practice Manual is binding on litigating parties and must be complied
with. It is not just a guideline, but an actual prescript.
…
’
[8]
In
Ralo v Transnet Port
Terminals and Others
[2]
the Court similarly held as follows:
‘
The
Practice Manual contains a series of directives, which the Judge
President is entitled to issue. In essence, the manual sets
out what
is expected of practitioners so as to meet the imperatives of respect
for the court as an institution, and the expeditious
resolution of
labour disputes (see clause 1.3). While the manual acknowledges the
need for flexibility in its application (see
clause 1.2), its
provisions are not cast in the form of a guideline, to be adhered to
or ignored by parties at their convenience.
'
[9]
Considering
that a Judge is entitled, in terms of the Practice Manual, to decide
a leave to appeal application in chambers based
on written
submissions, the failure to file written submissions in these
instances may be viewed to be similar to a party failing
to appear in
Court to argue the case, and all the consequences associated with it,
which may include dismissing the application
on this basis alone.
[3]
But at best for the applicant, the absence of written submissions
meant that his application for leave to appeal stood unmotivated.
[10]
The
applicant’s application for leave to appeal thus falls to be
dismissed on the above grounds alone, irrespective of any
consideration of prospects of success. However, and for the sake of
being complete, I will nonetheless consider the merits of the
application for leave to appeal, on the basis of the grounds advanced
by the applicant in the application for leave to appeal.
Leave
to appeal
[11]
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.
[4]
As said in
South African
Clothing and Textile Workers Union and Others v Stephead Military
Headwear CC
[5]
:
‘
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. …
’
[12]
In
Seathlolo
and Others v Chemical Energy Paper Printing Wood and Allied Workers
Union and Others
[6]
the Court also considered the above test for leave to appeal and
added:
‘
…
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 …
’
[13]
And
in
Member
of the Executive Council for Health, Eastern Cape v Mkhitha and
Another
[7]
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.
’
[14]
As a
general proposition, and in the application for leave to appeal, the
applicant simply repeats the same argument presented to
me when the
matter was originally argued. The fact that the applicant clearly
thinks I am wrong, does not mean that there is prospects
of success
on appeal. I have properly dealt with all of these issues in my
original judgment. With nothing new being
said about this, I
remain unconvinced that the applicant has a prospect of success on
appeal, and that there exists any reasonable
prospect that another
Court could come to a different conclusion.
[15]
The
applicant complains that I have placed undue emphasis on the
contractual arrangement between the parties as evidenced by the
specific contracts signed. But I do not believe there is any
substance in such a contention. As I have illustrated
in my
judgment, which reasons I will not repeat again, the current
prevailing authority is that what has been agreed to between
parties
should not just simply be ignored. A clear example of this is
the judgment of the Labour Appeal Court in
Enforce
Security Group v Mwelase and Others
[8]
.
I simply can see no reasonable prospect that another Court could come
to a different conclusion in this respect.
[16]
What
the applicant continuously fails to appreciate is that the fourth
respondent, Occupatio, never disputed that it was the employer
of the
applicant. Virtually everything the applicant seeks to rely on
in the application for leave to appeal could competently
serve to
prove Occupatio was his employer, but as said this was not in issue.
There is simply very little to contradict that
the third respondent,
SysInt, was not his employer, and I remain unconvinced that anything
said in the application for leave to
appeal would create a reasonable
prospect of success of an appeal Court finding otherwise.
[17]
All
said, the applicant has simply made out no proper case for leave to
appeal. I
thus conclude
that the applicant, overall,
has
shown no reasonable prospect that another Court could come to a
different conclusion, has no realistic prospects of success
on
appeal, and accordingly the leave to appeal application must fail.
[18]
As to
costs, I intend to follow the same approach I have adopted in my
original judgment, and make no order as to costs.
Order
[19]
In
the premises, I make the following order:
1.
The applicant’s application for leave to appeal is dismissed.
_____________________
S Snyman
Acting
Judge of the Labour Court
Appearances:
For the
Applicant:
In person
For the Third Respondent:
Cliffe Dekker Hofmeyr Inc Attorneys
[1]
(2017) 38 ILJ 430
(LC) at para 13. See also See
Tadyn
Trading CC t/a Tadyn Consulting Services v Steiner and Others
(2014)
35
ILJ
1672 (LC)
at
para 11;
Butana
v SA Local Government Bargaining Council and Others
[2016] JOL 36088
(LC) at paras 8-9;
Edcon
(Pty) Ltd v Commission for Conciliation, Mediation and
Arbitration and
Others: In re Thulare and Others v Edcon (Pty) Ltd
(2016)
37
ILJ
434 (LC)
at
para 24;
3G
Mobile (Pty) Ltd v Raphela NO and Others
[2014]
JOL 32479
(LC) at para 36.
[2]
(2015) 36
ILJ
2653 (LC)
at
para 9.
[3]
See
Ndebele
v South African Police Service and Another
[2017]
ZALCJHB 251 (4 July 2017) at para 7.
[4]
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).
[5]
[2017] JOL 37932B
(LC) at para 7.
[6]
(2016) 37 ILJ 1485
(LC)
at
para 3.
[7]
[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.
[8]
[2017] ZALAC 9
(25 January 2017) at
para 24.