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[2018] ZALCJHB 39
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Modisenyane v Transnet Bargaining Council and Others (JR1564/15, JR1460/15) [2018] ZALCJHB 39 (8 February 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case no: JR1564/15 and
JR1460/15
In the matter between:
KENOSI
MODISENYANE
Applicant
and
TRANSNET BARGAINING
COUNCIL
First Respondent
E. PATEL AND K.
KLEINOT
N.O
Second Respondents
TRANSNET FREIGHT
RAIL
Third Respondent
Decided:
in Chambers
Delivered:
8 February 2018
JUDGMENT
- LEAVE TO APPEAL
MAHOSI.
J
[1] This is an opposed
application for leave to appeal against the judgment of this Court in
terms of which the Applicant's application
to review and set aside
the first condonation ruling issued by commissioner Karin Kleinot,
dated 28 July 2015 under case number
GAJB 28587/14 and the second
condonation ruling issued by commissioner Ebrahim Patel (the second
Respondents/commissioners) dated
30 July 2015 under case number
TFR(GR)/12861 were dismissed.
[2]
In determining whether to grant an application for leave to appeal,
the traditional test is whether there is a reasonable prospect
that
another court may come to a different conclusion than that arrived at
by this Court.
[1]
In terms of
section 166(1) of the Labour Relations Act,
[2]
a party to proceedings before the Labour Court, may apply to the
Labour Court for leave to appeal to the Labour Appeal Court (LAC)
against any final judgment or final order of the Labour Court.
Section 17 of the Superior Court Act,
[3]
which applies to the Labour Court, regulates instances in which the
appeal may be granted. Section 17(1) provides as follows:
‘
Leave to
appeal may only be given where the judge or judges 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 decisions 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 issue between the parties.’
[3] Section 16(2)(a) of
the Superior Court Act provides as follows:
'(i)
When at the hearing of the appeal the issues are of such a nature
that the decision
sought will have no practical effect, the appeal
may be dismissed on this ground alone.
(ii)
save under exceptional circumstances, the question whether the
decision would have
no practical effect or result is to be determined
without reference to any consideration of costs.'
[4]
In
Martin
and
East
(Pty) Ltd v National Union of Mineworkers and Others,
[4]
the LAC made it clear that leave to appeal is not simply for the
taking, and that this Court must be cautious in granting leave
to
appeal and in assessing the requirement of the prospect of success.
In this case, the court stated as follows:
‘
Before
I conclude there is a further comment I wish to make. I
indicated that the events in this case took place in 2010.
The
Labour
Relations Act was
designed
to ensure an expeditious resolution of industrial disputes. This
means that courts, particularly courts in the position
of the court
a
quo,
need to be cautious when leave to appeal is granted, as should this
Court when petitions are granted.
There are two
sets of interests to consider. There are the interests of the
parties such as appellant, namely who are entitled
to have their
rights vindicated, if there is a reasonable prospect that another
court might come to a different conclusion. There
are also
the rights of employees who land up in a legal “no-man’s-land”
and have to wait years for an appeal
(or two) to be prosecuted.
This was a case
which should have ended in the labour court. This matter should
not have come to this court. It stood
to be resolved on its own
facts. There is no novel point of law to be determined nor did
the Court
a quo
misinterpret existing law. There was no
incorrect application of the facts; in particular the assessment of
the factual justification
for the dismissals/alternative sanctions.
I
would urge labour courts in future to take great care in ensuring a
balance between expeditious resolution of a dispute and the
rights of
the party which has lost. If there is a reasonable prospect that the
factual matrix could receive a different treatment
or there is a
legitimate dispute on the law, that is different. But this kind
of case should not reappear continuously in
courts on appeal after
appeal, subverting a key purpose of the Act, namely the expeditious
resolution of labour disputes.’
[5]
[5]
In
this case, the applicant raised the following grounds of review:
‘
5.1.
The judge disregarded the points raised by the applicant regarding
both commissioners who decided on
two different cases, both not
accredited to be commissioners.
5.2.
The points that were disregarded in the
harassment case were that the condonation that was not granted
by
commissioner Kleinout was not even compiled by her.
5.3.
The other point was that the second
commissioner Patelia, who presided over the dismissal case was
not
accredited to be a commissioner as his current portfolio is one of a
minister and an attorney. In short, commissioner Patelia
holds three
portfolios.
5.4
The conclusion that was reached by
both commissioners, who literally dismissed both cases without
considering all factors raised by the applicant and the evidence has
led to an existing and evolving catastrophe within the entire
justice
department, the Labour Court and other institutions.’
[6]
Having had regard to the applicant’s submissions, I am not
persuaded that there are reasonable prospects of a successful
appeal.
As such, I am of the view that this application is without
merit and that it must be dismissed.
[7] Accordingly, I make
the following order:
Order
1.
The application for leave to appeal is dismissed.
2.
There is no order as to costs.
__________________
D. Mahosi
Judge
of the Labour Court of South Africa
[1]
See
Karbochem
Sasolburg (A Division of Sentrachem Ltd) v Kriel and Others
(1999) 20 ILJ 2889 (LC) at 2890B;
Ngcobo
v Tente Casters (Pty) Ltd
(2002) 23 ILJ 1442 (LC) at 1443 para 2 and
Tsotetsi
v Stallion Security (Pty) Ltd
(2009) 30 ILJ 2802 (LC) at 2804 para 14.
[2]
Act
66 of 1995 as amended.
[3]
Act
10 of 2013.
[4]
(2014)
35 ILJ 2399 (LAC).
[5]
At
2405-2406.