About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2017
>>
[2017] ZALCJHB 499
|
|
Sekwati v CCMA and Others (JR2032/15) [2017] ZALCJHB 499 (8 December 2017)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
C
ase
no: JR 2032/15
In
the matter between:
JOHN
RAMOTLOA SEKWATI
Applicant
and
CCMA
First Respondent
COMMISSIONER
NGWENYA N.O.
Second Respondent
EDCON GROUP (PTY) LTD
Third Respondent
Delivered
:
8 December 2017
ruling
on leave to appeal
STEENKAMP
J
Introduction
[1]
The applicant seeks leave to appeal against my
ex tempore
judgment of 19 April 2017.
[2]
The parties delivered their submissions in terms of rule 30(3A) on 26
May and 6 June 2017 respectively. The judgment was only
transcribed
and sent to me for editing and signature on 30 May 2017. And despite
the parties having filed their submissions by
6 June 2017, exactly 6
months ago, this was only brought to my attention today, 6 December
2017, for reasons unknown and unfathomable
to me.
The
judgment
[3]
The applicant was dismissed by the third respondent, Edcon. The
arbitrator, Commissioner Dumisani Ngwenya, found that it was
fair.
The applicant sought to have the award reviewed and set aside. But
the award was one that a reasonable arbitrator could reach.
Therefore
the review application was dismissed with costs.
Grounds
of appeal
[4]
Mr
Geldenhuys
raises the following grounds of appeal:
4.1 The
court did not take into consideration “the full spectrum of
evidence” that was
led at arbitration.
4.2 The
Court erred in finding that the arbitrator’s finding on “guilt”
(not a word
used by the court) was reasonable.
4.3 The
court found (correctly) that the review ground relating to procedural
unfairness had been
conceded; but despite that, the court should not
have found that the arbitrator reasonably exercised his discretion
not to award
compensation.
Evaluation
[5]
The test to be applied is that referred to in
s 17
of the
Superior
Courts Act, 10 of 2013
.
Section 17(1)
provides:
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
judgments 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.
[6]
As Van Niekerk J pointed out in
NAPO v SAPS
(Case no: JR
2704/08), the traditional formulation of the test that is applicable
in an application such as this 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. The use of the word “would” in
s17
(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 and others
v Crocodile Valley Citrus Company (Pty) Ltd and 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. 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 (See the judgment by Davis
JA
in
Martin & East (Pty) Ltd v NUM
(2014) 35
ILJ
2399
(LAC), and also
Kruger v S
2014
(1) SACR 369
(SCA) and the
ruling in
Oasys Innovations (Pty) Ltd v Henning & another
(C 536/15, 6 November 2015).
[7]
In this case, the finding of the arbitrator that the employee was
responsible for the disarray in the store was one that a reasonable
arbitrator could reach, based on the evidence before him, which he
considered carefully.
[8]
Having found that, the arbitrator exercised his discretion with
regard to whether any compensation should be awarded for procedural
unfairness. He decided that it should not, given the employee’s
misconduct. A court on review will not lightly interfere
with that
discretion.
[9]
I am not of the opinion that an appeal would have reasonable
prospects of success.
Order
[10]
The application for leave to appeal is dismissed with costs.
_______________________
Steenkamp
J
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANT:
C J Geldenhuys.
THIRD RESPONDENT:
Shepstone & Wylie.