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[2017] ZALCPE 20
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Vazi v MEC for Health Eastern Cape and Others (P143/13) [2017] ZALCPE 20 (7 September 2017)
THE
LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH
JUDGMENT
Case
no
P 143/13
Not
reportable
In
the matter between
PUMLA
ELIZABETH VAZI
Applicant
And
MEC
FOR HEALTH EASTERN CAPE
First
Respondent
HEAD
OF DEPT. FOR EASTERN CAPE
DEPT
OF HEALTH
Second
Respondent
PUBLIC
HEALTH AND SOCIAL
DEVELOPMENT
SECTORAL BARGAINING COUNCIL
Third
Respondent
MANGISI
MRWEBI
N.O
Fourth respondent
Date
delivered: 7 September 2017
RULING:
APPLICATION FOR LEAVE TO APPEAL
VAN
NIEKERK J
[1]
This is an application for leave to appeal against the whole of the
court’s judgment delivered on 6 October 2016, when
the court
dismissed with costs an application to review and set aside an
arbitration award issued by the fourth respondent. In
the award, the
fourth respondent had upheld the applicant’s dismissal. The
court held that the outcome of the proceedings
under review fell
within a band of decisions to which a reasonable decision-maker could
come on the available material.
[2]
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.
[2]
The application for leave to appeal was filed late. The explanation
proffered by the applicant’s attorney relates to the
delay in
his receiving a copy of the judgment, which was delivered in
Johannesburg. The explanation is acceptable, and the
late
filing of the application is condoned.
[3]
The test in the present application, accurately stated, is not one
that 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 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 by
Steenkamp J in
Oasys Innovations (Pty) Ltd v Henning & another
(C 536/15, 6 November 2015).
[4]
The grounds on which leave to appeal is sought are in essence those
proffered in support of the review application. The fact
that the
arbitrator failed to deal with the issue of delay does not in itself
render the award reviewable – there was an
explanation for the
delay, one which the arbitrator clearly elected to accept. This
court’s right to intervene is limited
by the reasonableness
threshold that is to be applied; even if the court would have decided
the issue differently, that is not
a sufficient basis for review.
Similarly, the decision to admit the evidence of Sutcliffe (in the
form of the opinions expressed
by him in relation to the documents
that were introduced through him) does not in itself render the award
reviewable. Arbitrators
are afforded a wide latitude by the Act as to
conduct proceedings with the minimum of formality. It warrants
repeating that despite
her being legally represented in the
arbitration hearing, there was no objection to the introduction of
the forensic report or
to Sutton’s evidence. In any event, as
observed in paragraph 19 of the judgment, the Labour Appeal Court has
upheld findings
of dismissal made on the basis of a forensic report,
introduced into evidence by the investigator.
[5]
The arbitrator appreciated the nature of the enquiry and applied the
correct test. The review test condones a failure to take
into account
material facts and a flawed assessment of the evidence, provided of
course that on a totality of all of the evidence,
the outcome of the
proceedings under review falls within a band of decisions to which a
reasonable decision maker could come. This
necessarily entails an
examination of the record of the arbitration proceedings and an
assessment of the reasonableness of the
outcome. What the applicant
sought to do in the review (and pursues in the present application)
is to raise and canvass issues
that ought more properly to have been
raised in the arbitration hearing. It is not open to a party to argue
a case on review that
ought more properly to have been argued before
the arbitrator. The applicant made a number of decisions in regard to
the conduct
of the arbitration hearing – their consequences
cannot be undone by way of review. I am not persuaded that any appeal
would
have a reasonable prospect of success. The application for
leave to appeal stands to be dismissed.
I
make the following order:
1.
Leave to appeal is refused, with costs.
Andre
van Niekerk
Judge