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[2017] ZALCPE 7
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South African Municipal Workers Union obo Dywili v Inkwanca Municipality (P399/14) [2017] ZALCPE 7 (22 May 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH
Not
Reportable
Case
no: P 399/14
In
the matter between
SOUTH
AFRICAN MUNICIPAL WORKERS
UNION
OBO ZUKO S DYWILI
Applicant
and
INKWANCA MUNICIPALITY
Respondent
Considered
in chambers
Delivered:
22 May 2017
JUDGMENT:
APPLICATION FOR LEAVE TO APPEAL
TLHOTLHALEMAJE,
J:
Introduction:
[1]
On 31 January 2017, judgment was delivered in this matter wherein I
had dismissed the respondent’s application to rescind
an order
granted by default by Euijen AJ on 26 February 2016. The
respondent has since filed an application for leave to
appeal against
the whole judgment. The applicant opposed the application. For the
sake of consistency, the citation of the parties
shall remain as they
were in the main action. The reference to the applicant in this
application is the applicant in the statement
of case.
Background:
[2]
In terms of Rule 30 (2) of the Rules of this Court, an application
for leave to appeal must be lodged within 15 days of the
date of the
judgment. The notice in respect of the application for leave to
appeal was filed on 20 February 2017, and the submissions
in support
of the application were filed on 20 March 2017.
[3]
The provisions of clause 15.2 of the Practice Manual 2013 govern the
filing of submissions in respect of the leave of appeal
and provide
as follows:
“
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. An application for leave to appeal
will be decided by the
judge in Chambers on the basis of the submissions filed in terms of
Rule 30 (3A), unless the judge directs
that the application be heard
in open court.”
[4]
In line with the above, the respondent ought to have filed its
submission on or before 6 March 2017. The respondent’s
submissions were only filed eight (8) days outside the time limit
prescribed by the Practice Manual. There is no application for
condonation for the late filing of the submissions.
[5]
The applicant’s submissions in opposition to the application
for leave to appeal were filed on 06 April 2017. As mentioned
above
the applicant ought to have filed within five (5) days upon being
served with the respondent’s submissions. The respondent’s
submissions are therefore seven (7) days out of time. Again, there is
no application for condonation for the late filing of the
applicant’s
submissions. Furthermore, there was never a request made by the
parties for an extension for the purposes of
filing either of the
submissions.
[6]
Ordinarily, the application for leave to appeal and the
opposition thereto are not properly before the Court. Notwithstanding
my reservations about non-compliance with the provisions of the
practice manual, it is taken into account that the delays as
mentioned
above are not substantial, and the court will accordingly
exercise its discretion and nevertheless determine the central
issues.
The
grounds upon which leave to appeal is sought and the submissions:
[7]
The grounds relied upon by the respondent are as follows;
[7.1]
This Court erred or misdirected itself in determining the rescission
application
only on basis of the provisions of 165(a) of the Labour
Relations Act [66 of 1995], read with Rule 16A of the Rules of this
Court;
[7.2]
This Court erred in finding that it did not have to consider whether
the applicant
had shown good or sufficient cause in determining
whether to grant rescission or not;
[7.3]
This Court erred or misdirected
itself by finding that the applicant failed to prove its case to
justify rescission of the default
judgment without determining the
prospect of success in the main action, contrary to the Labour Appeal
Court decision in
Shoprite
Checkers (PTY) LTD v Commission for Conciliation Mediation and
Arbitration & Others
[1]
;
[7.4]
The Court failed to consider that the applicant had raised special
defences;
[7.5]
This Court misdirected itself in not finding any good cause shown by
the applicant
in having the rescission application granted;
[7.6]
This Court erred by dismissing the rescission application without
taking into
account the [respondent’s] right of access to
courts in terms of section 34 of the Constitution. In limiting the
right in
question, the Court did not apply the provisions of section
36 of the Constitution.
Evaluation:
[8]
The provisions of section 17 of
the Superior Courts Act
[2]
are always a useful starting point in considering applications of
this nature. These specifically provide that:
“
17
(1) leave to appeal may only be given where a 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.”
[9]
Central to the determination of
applications for leave to appeal is whether there are reasonable
prospect of success in the appeal.
This test as outlined in section
17(1) of the Superior Court Act differs to the traditional test as
previously stated by our courts.
[3]
The provisions of section 17(1) raises the threshold of the test for
leave to appeal.
[4]
[10]
The applicant correctly pointed out that this Court and the Labour
Appeal Court have in the past stressed that leave to appeal
should
not be lightly granted because meritless appeals delay the final
resolution of disputes. Having had regard to the submissions
made on
behalf of the respondent in respect of this application, these do not
come close to meeting the threshold referred to as
above.
[11]
Inasmuch as the respondent outlined its grounds for leave to appeal
on its notice, it however failed to substantiate these
in its
subsequent submissions. The submissions, as also correctly pointed
out on behalf of the applicant, at best amounts to a
regurgitation of
its case as in the rescission application. I am satisfied that all of
these issues were adequately canvassed and
dealt with in my judgment,
and no purpose will be served in revisiting same.
[12]
In the light of the above, having had regard to the submissions made
in regards to the application for leave to appeal, the
opposition
thereto, and further upon a reflection of my judgment, I am of the
view that the respondent has failed to demonstrate
that there are
reasonable prospects that the Labour Appeal Court will come to a
different decision to that reached in my judgment.
[13]
In respect of the issue of costs, it is trite that such an order may
be made upon a consideration of the requirements of law
and fairness.
It has already been pointed out that both parties to this application
failed to comply with the timeline in terms
of filing the requisite
submissions as contemplated in the Practice Manual.
Other
than this factor, I am of the view that the facts and circumstances
of this case do not call for a costs order to be made.
[14]
In the premise, I make the following order:
1.
The application for leave to appeal against the judgment and order of
this Court
delivered on 31 January 2017 is dismissed;
2.
There is no order as to costs.
________________________________
E
Tlhotlhalemaje
Judge
of the Labour Court of South Africa
[1]
(2007) 28 ILJ 2246 LAC
[2]
Act 10 of 2013.
[3]
Minister of
Safety and Security and Another v Madyibi (1034/2004)
[2008] ZAECHC
180
(30 October 2008) at para 20:
“
In
giving consideration to the issues at hand I am enjoined by judicial
authority to take due cognisance of the test which is
of application
in matters of this nature. Judicial authority requires of a Judge
considering an application for leave to appeal
reflecting
dispassionately upon the decision sought to be appealed against and
decide whether or not there is a reasonable prospect
that the Appeal
Court may come to a different conclusion. This necessarily requires
of me to disabuse my mind of the fact that
I was of the view when I
delivered my judgment that it was supportable both on the facts of
the case and the law applicable thereto”.
[4]
Seathlolo & others v Chemical Energy Paper Wood & Allied
Workers Union & others (2016) 37 ILJ 1485 (LC) at para 3:
“
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.
As the respondents observe, the use of the word “would”
in s17(1)(a)(i) are
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 3 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, 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 (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 by
Steenkamp J in Oasys Innovations (Pty) Ltd v Henning & another
(C 536/15, 6 November 2015).