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[2018] ZALCJHB 99
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Bombela Operating Company v Mthukwane NO and Others (JR1922/13) [2018] ZALCJHB 99 (6 March 2018)
Not
Reportable
Case
NO: JR 1922/13
In
the matter between:
BOMBELA
OPERATING
COMPANY
Applicant
and
JACKSON
MTHUKWANE
N. O
First Respondent
COMMISSION
FOR CONCILIATION MEDIATION
AND
ARBITRATION
Second
Respondent
UTATA
SARHWU
Third Respondent
CLIFFORD
MORAKE
Fourth Respondent
Decided:
In Chambers
Delivered:
6 March 2018
JUDGMENT:
LEAVE TO APPEAL
TLHOTLHALEMAJE,
J
[1]
The applicant’s application to review
and set aside the arbitration award issued by the first respondent
(the Commissioner)
was dismissed in a judgment handed down on
30 January 2018. In dismissing the application, the Court
further amended
the Commissioner’s award to reflect a sanction
of a final written warning to be issued to the fourth respondent.
[2]
The applicant has since filed an
application for leave to appeal against the whole of the judgment and
the order. The grounds on
which leave to appeal is sought may be
summarised as follows:
2.1.
The Court erred in finding that there were
no procedural irregularities in the manner in which the Commissioner
conducted the arbitration
proceedings, as it was apparent from the
comments made by the Commissioner during the arbitration proceedings
that the applicant
was not afforded the opportunity to present its
case.
2.2.
The Court erred in not properly examining
the video footage which recorded the incident complained of and of
which the fourth respondent
was dismissed. Should the Court have
taken into consideration the footage, it would have been apparent to
the Court that the assault
of the complainant by the fourth
respondent was of a serious nature.
2.3.
The Court misdirected itself by holding
that the assault was induced by provocation. The fourth respondent
did not raise provocation
as a defence in the arbitration
proceedings. The evidence of the fourth respondent was that he became
emotional and felt provoked.
The Court place too much weight on this
aspect and erred in concluding that the fourth respondent could be
excused for conducting
himself in the manner that he did.
[3]
It is trite that the test in determining
whether leave to appeal should be granted is whether there is a
reasonable prospect that
another court, and in this case, the Labour
Appeal Court, would come to a different conclusion to that reached by
the Court whose
judgment is sought to be taken on appeal. It can
further be accepted that amongst the factors to be considered with
such application
is whether the matter is of substantial importance
to the parties and whether it is in the interest of justice to grant
the application.
[4]
I have had regard to the submissions made on behalf of applicant in
terms of Rule 30(3A) of the Rules of this Court, and the
submissions
made in opposition to the application. Upon a further reflection on
my judgment, I am of the view that the issues raised
in the
application for leave to appeal as correctly pointed out on behalf of
the fourth respondent in opposing this application,
have been
adequately dealt with in my judgment, and no purpose would be served
in revisiting them.
[5]
Ultimately,
I hold the view that there are no
reasonable prospects that the applicant would be successful on
appeal, as there are no issues
raised in the application for leave to
appeal that of importance, or upon which it can be said that the
interests of justice require
that the application be granted.
[6]
I have also had regard to the requirements of law and fairness, and
hold the view that even though this application was ill-considered,
a
costs order is nonetheless not warranted.
Order:
[7]
Accordingly, the following order is made;
1.
The application for leave to appeal is dismissed.
2.
There is no order as to costs.
___________________
E.
Tlhotlhalemaje
Judge
of the Labour Court of South Africa