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[2017] ZALCJHB 475
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Ekurhuleni Metropolitan Municipality v South African Local Government Bargaining Council and Others (JR2368/15) [2017] ZALCJHB 475 (19 December 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
no: JR 2368/15
In
the matter between:
EKURHULENI METROPOLITAN
MUNICIPALITY
Applicant
and
SOUTH AFRICAN LOCAL GOVERNMENT
BARGAINING COUNCIL
First Respondent
ARBITRATOR M.N.S DAWSON
N.O
Second Respondent
INDEPENDENT MUNICIPAL ALLIED
TRADE
UNION (IMATU) OBO SANMARI
BRIEDENHANN
Considered in Chambers.
Third Respondent
Delivered:
19 December 2017
RULING:
LEAVE TO APPEAL
TLHOTLHALEMAJE,
J:
Introduction
and background:
[1]
Ekurhuleni Metropolitan
Municipality (Municipality) brought an application before this Court
to review and set aside an arbitration
award issued by the second
respondent, Commissioner M.N.S Dawson
N.O
,
wherein the Municipality was found to have committed an unfair labour
practice against the third respondent, Ms Sanmari Briedenhann
(Briedenhann). The finding by the Commissioner was premised on the
view that Briedenhann was a senior manager in terms of provision
of
section 56 and 57 of the Local Government: Municipal Systems Act
[1]
and therefore ought be have been suspended in terms Municipal Systems
Act and not in terms of provisions the Disciplinary Procedure
Code
Collective Agreement.
[2]
On 17 October 2017,
this Court handed down judgement in terms of which the Commissioner’s
award was reviewed, set
aside and substituted with an order that the
precautionary suspension of Briedenhann did not constitute an unfair
labour practice
within the meaning of section 186(2)(b) of the Labour
Relations Act.
[2]
[3]
Briedenhann has since filed an application for leave to appeal
against that judgment. The Municipality opposed the application
for
leave to appeal. Briedenhann further seeks an order condoning the
late filing of the notice of application for leave to appeal,
and the
late filing of the written submissions in support of the leave to
appeal. She further seeks an amendment the citation of
the third
respondent from “IMATU obo Sanmari Briedenhann” to
“Sanmari Briedenhann” since IMATU no longer
represents
her. The Municipality filed a notice consenting to both the
condonation application and the application to amend the
citation.
[4] The
late filing of application for leave to appeal and the written
submissions in the light of the insignificant nature of the
delay in
that regard should be condoned. There is further no reason why the
application to amend the citation should not be granted.
Application
for leave to appeal:
[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
[3]
.
As to what this test entails was addressed by the Supreme Court of
Appeal in
S v Smith
[4]
as follows;
‘
What
the test of reasonable prospects of success postulates is a
dispassionate decision, based on the facts and the law that a court
of appeal could reasonably arrive at a conclusion different to that
of the trial court. In order to succeed, therefore, the appellant
must convince this court on proper grounds that he has prospects of
succeed on appeal and that those prospects are not remote but
have
realistic chance of succeeding. More is required to be established
than that there is a mere possibility of success, that
the case is
arguable on appeal or that the case cannot be categorised as
hopeless. There must, in other words, be a sound, rational
basis for
the conclusion that there are prospects of success an appeal’
[6]
Briedenhann advanced a number of grounds in support of her
application for leave to appeal. I do not intend on regurgitating
them here, suffice to say I have carefully considered the grounds
upon which leave to appeal is sought, and the submissions made
by
both parties in support of and in opposition to the application. I
have further reflected upon my judgement and hold the firm
view that
the issues raised by Briedenhann in this application and grounds upon
which leave to appeal is sought were adequately
dealt with in that
judgment. Having had regard to the these considerations, it is
my view that Briedenhann has not raised
anything of significance that
indicates a reasonable prospect of the Labour Appeal Court coming to
a different conclusion to that
arrived at in my judgment.
Accordingly, the application for leave to appeal stands to be
dismissed.
[7]
In respect of costs, I have had regard to the requirement of law and
fairness, I am of the view that a costs order is not warranted
in
this circumstances.
Order:
[8] In
the premises, the following order:
1.
The citation of the third respondent is amended from “IMATU
obo
Sanmari Briedenhann” to “Sanmari Briedenhann;
2.
The late filing of the third respondent’s notice of application
for leave to appeal is condoned;
3.
The late filing of the third respondent’s written submissions
in support of the application for leave to appeal is condoned;
4.
The application for leave to appeal is dismissed;
5.
There is no order as to costs.
____________________
E
Tlhotlhalemaje
Judge
of the Labour Court of South Africa
[1]
Act 32 of 2000, as amended
[2]
Act 66 of 1995, as amended
[3]
See
Superior Courts Act 10 of 2013
:
Section 17
(1):
(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.”
[4]
2012 (1)
SACR 567
(SCA) (15 March 2011) at para 7