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[2018] ZALCJHB 62
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JBC Roof Cover (Pty) Ltd v Motsoeneng NO and Others (JR2319/17) [2018] ZALCJHB 62 (16 February 2018)
Not
reportable
THE
LABOUR COURT OF SOUTH AFRICA,
HELD
AT JOHANNESBURG
C
ase No: JR 2319/17
In
the matter between:
JBC
ROOF COVER (PTY) LTD
Applicant
and
MBONGENI
MOTSOENENG
N.O.
First Respondent
COMMISSION
FOR CONCILIATION,
MEDIATION
AND ARBITRATION (
NO
)
Second Respondent
ADRIAAN JOHANNES DIEDERICKS
Third Respondent
Delivered
:
16 February 2018
JUDGMENT
ON APPLICATION FOR LEAVE TO APPEAL
LAGRANGE
J
Background
[1]
This is an application for leave to appeal against the judgment
delivered on 15 December 2017. The application for leave to
appeal
was only filed on 4 January 2018. It was filed within 15 court days
and accordingly is not late as claimed by the respondent.
[2]
Having considered the application, it is clear that the essence of
the appeal is that the applicant seeks to contend that the
contract
signed by the respondent was the exclusive memorial of his terms of
employment. I am satisfied for the reasons in my judgment
that was
not the case on the facts.
[3]
The current principles
governing leave to appeals were dealt with in
Seathlolo
& others v Chemical Energy Paper Printing Wood & Allied
Workers Union & others
[1]
this court summarised the approach to be adopted to applications for
leave to appeal under s 17:
“
[2] The test to be applied in
an application such as the present 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.'
[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
s 17(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 & others v Crocodile Valley Citrus Co (Pty) Ltd &
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 National Union of Mineworkers & others
(2014)
35
ILJ
2399
(LAC), and also
Kruger
v S
2014
(1)
SACR
I
369
(SCA) and the ruling by Steenkamp J in
Oasys
Innovations (Pty) Ltd v Henning & another
(C536/15
6 November 2015).
[2]
[4]
In applying the above test I am satisfied that there is no reasonable
likelihood another court would come to a different conclusion.
Order
The
application for leave to appeal is dismissed.
_______________________
Lagrange
J
Judge
of the Labour Court of South Africa
(In
chambers)
[1]
(2016) 37
ILJ
1485 (LC)
[2]
At 1486