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[2018] ZALCJHB 40
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AMCU v DHL Supply Chain and Another (JS19/17) [2018] ZALCJHB 40 (7 February 2018)
REPUBLIC
OF SOUTH AFRICA
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Not
of interest to other judges
Case
no: JS 19/17
In
the matter between
AMCU
APPLICANT
and
DHL
SUPPLY CHAIN
NATIONAL
UNION OF METALWORKERS
OF SOUTH AFRICA (NUMSA)
FIRST
RESPONDENT
SECOND
RESPONDENT
Date
heard: In
chambers:
Date
delivered: 7 February 2018
Summary:
Application for leave to appeal
JUDGMENT
– LEAVE TO APPEAL
COETZEE
AJ
[1]
In the
ex tempore
judgment with reasons of 5 December 2017 I
dismissed the applicant's condonation application and statement of
defence with costs.
[2]
The applicant on 2 January 2018 filed an application for leave to
appeal.
[3]
The application for leave to appeal sets out the various grounds of
appeal.
[4]
The applicant and the first respondent filed written submissions in
support and opposition of the application for leave to appeal.
[5]
The application for leave to appeal is opposed.
[6]
The first respondent filed its representations late and applied for
condonation for the late service and filing of its opposing
submissions. This application is unopposed. I have considered the
explanation and grant condonation.
[7]
I have considered the application for leave to appeal and the written
representations in chambers.
[8]
In terms of Rule 30 (2)
‘
If
leave to appeal has not been made at the time of judgment or order,
an application for leave must be made and the grounds for
appeal
furnished within 15 days of the date of the judgment or order against
which leave to appeal is sought, except that the court
may, on good
cause shown, extend that period'
[9]
The application was made timeously.
[10]
Section 17
of the
Superior Courts Act, No 10 of 2013
regulates an
application for leave to appeal from a decision of a High Court. It
reads as follows:
'17. Leave
to appeal.
—
(1) 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'.
[11]
This section also applies to
applications for leave to appeal in the Labour Court.
[1]
[12]
The Court in
Mgezeni
Gasbat Nxumalo v the National Bargaining Council for the Chemical
Industry (NBCCI) and Others
[2]
conveniently summarised the approach to an application for leave to
appeal:
'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 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
and 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 and Another
(C
536/15, 6 November 2015) and also
Seatlholo
and Others v Chemical, Energy, Paper, Printing, Wood and Allied
Workers' Union and Others
[3]
.'
[13]
I do not intend to deal with each of the grounds of appeal
separately.
[14]
The applicants have not raised grounds other than those in the
hearing of the matter which matters were addressed in the reasons
for
the judgment.
[15]
In my view
after careful
consideration
of the applicant's stated grounds for leave to
appeal and
the submissions,
there is nothing that persuades me that any appeal would have a
reasonable prospect of success.
[16]
There are no other compelling reasons why leave to appeal should be
granted.
[17]
There is no reason why a cost order should be delete made in
this application.
[18]
I make the following order:
[18.1]
The application for leave to appeal is dismissed.
[18.2]
There is no order as to costs.
________________
Coetzee
AJ
Acting
judge of the Labour Court
Representation:
For
the applicant:
Considered in chambers
For
the Respondent:
Considered in chambers
[1]
Section 151 of the Labour Relations Act, Act 66 of 1995
[2]
JR1170 /2013 unreported
[3]
(2016) 37 ILJ 1485 (LC)