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[2018] ZALCJHB 53
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SACCAWU obo Ramonthle and Others v Sun City (JS1116/2013) [2018] ZALCJHB 53 (8 February 2018)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case no: JS 1116/2013
In the matter between:
SACCAWU obo RAMONTHLE
AND 13 OTHERS
Applicant
and
SUN CITY
Respondent
Decided:
In
Chambers
Delivered:
8 February 2018
JUDGMENT-APPLICATION
FOR LEAVE TO APPEAL
PRINSLOO
.
J
[1]
On
19 October 2017, I handed down judgment in this matter. Subsequent
thereto, the Applicants filed an application for leave to
appeal
against the whole of the judgment. The application is opposed.
[2]
It
is clear from the papers that the time frames in respect of the
filing of submissions were not adhered to and despite the Applicant
stating that it will apply for condonation, no condonation
application was filed. However, in the interests of justice, I
proceed
to decide the application.
[3]
Both
parties have filed submissions in respect of the leave to appeal. I
have considered the grounds for appeal as well as the submissions
made in support and in opposition thereof and I do not intend to
repeat those herein.
Test applicable in an
application for leave to appeal
[4]
It
is trite that leave to appeal is not merely there for the taking.
An
applicant in an application for leave to appeal must satisfy the
court
a
quo
that it has reasonable prospects that another court could come to a
different conclusion than that arrived at by the court
a
quo
.
[5]
Appeals
should be limited to matters where there is a reasonable prospect
that the factual matrix could receive a different treatment
of where
there is some legitimate dispute on the law.
[6]
In
Seatlholo
and Others v Chemical Energy Paper Printing Wood and Allied Workers
Union and Others
[1]
this Court confirmed that the test applicable in applications for
leave to appeal is stringent and held as follows:
“
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)”.
[7]
In
deciding this application for leave to appeal I am also guided by the
dicta
of
the Supreme Court of Appeal where it held in
Dexgroup
(Pty) Ltd v Trustco Group
[2]
that
:
”
The need to obtain
leave to appeal is a valuable tool in ensuring that scarce judicial
resources are not spent on appeals that lack
merit. It should in this
case have been deployed by refusing leave to appeal.”
[8]
In
Martin
and East (Pty) Ltd v NUM and Others
[3]
the
Labour Appeal Court emphasized that:
“
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.
…
..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.”
Grounds for appeal
[9]
The
Applicants raised a number of grounds for appeal and on consideration
of these grounds and submissions, it is apparent that
the Applicant
approached this Court for leave to appeal by taking points and
restating the evidence that was before Court and trying
to argue the
matter afresh post judgment. In applications for leave to appeal,
what the applicant ought to do is to state what
was before court,
what the court did in error and what the court ought to have done
right. The Applicants’ submissions are
a repetition of the
evidence and arguments at trial. I emphasize that the trial was heard
over a number of days where extensive
evidence was adduced and
arguments were heard and these issues were dealt with at length in my
judgment.
[10]
The
Applicants submitted that this Court erred in awarding costs against
them. This Court has a wide discretion in awarding cost
and Mr
Molebaloa made no submissions on the issue of costs, apart from
seeking a cost order against the Respondent. This is the
normal ‘cost
to follow the result’ position and no submissions were made why
the general rule should not be applied.
The Applicants failed to
demonstrate in what manner I erred in the exercise of my discretion
to award costs against them and no
case has been made out to overturn
the discretion I exercised in this regard.
[11]
The
Applicants further submitted that the matter involves a novel
question of law as it would assist in developing labour law
jurisprudence
as there are few cases dealing with the provisions of
Schedule 8, item 6(1) c) involving third parties. I disagree with
this submission
for number of reasons. Firstly, this was never the
Applicants’ pleaded case. The Applicants now seek to make out a
new case
and this cannot be countenanced. Secondly, the Applicants’
understanding of what a
novel
case is, is incorrect. A novel case is not only a case for which no
precedent can be found, but it is a peculiar or extraordinary
case
arising in the complex and diversified environment which cannot be
classified under any of the distinct heads under which
jurisdiction
has been administered. Whilst it is correct that where the case is
novel, further development in jurisdiction is important,
this is not
a matter that the Labour Appeal Court should indulge as an
unnecessary experiment on meritless appeals.
[12]
The
grounds for leave to appeal as set out by the Applicants have no
merit and I see no reason why the Labour Appeal Court should
be
burdened with this appeal.
[13]
In
the premises, I make the following order.
Order
1.
The
application for leave to appeal is dismissed.
2.
There
is no order as to costs.
_____________________
Connie Prinsloo
Judge
of the Labour Court
Appearances:
For the
Applicants:
Mr M S Molebaloa of M S Molebaloa
Inc Attorneys
For the
Respondent:
Advocate T Ngcukaitobi and Advocate Z Navsa
Instructed
by:
Bowman Gilfillan Attorneys
[1]
(2016) 37 ILJ 1485
(LC)
[2]
Unreported
judgment of the Supreme Court of Appeal (687/12)
[2013] ZASCA 120
(20 September 2013.
[3]
(2014)
35 ILJ 2399 (LAC).