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[2018] ZALCJHB 119
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National Institute for the Humanities and Social Sciences (NIHSS) v Lephoto and Another; In re: Lephoto v National Institute for the Humanities and Social Sciences (NIHSS) and Another (JS274/16) [2018] ZALCJHB 119 (14 March 2018)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case no: JS 274/16
In
the matter between:
THE
NATIONAL INSTITUTE FOR THE
HUMANITIES
AND SOCIAL SCIENCES
(NIHSS)
Applicant
and
KIBITI
LEPHOTO
First Respondent
THE
MINISTER OF HIGHER EDUCATION AND
TRAINING
Second Respondent
In
re:
KIBITI
LEPHOTO
Applicant
and
THE
NATIONAL INSTITUTE FOR THE
HUMANITIES
AND SOCIAL SCIENCES (NIHSS)
First Respondent
THE
MINISTER OF HIGHER EDUCATION AND
TRAINING
Second Respondent
Considered:
In Chambers
Delivered:
14 March 2018
JUDGMENT:
APPLICATION FOR LEAVE TO APPEAL
MAM
OSEBO
.
AJ
Introduction
[1]
This is an application for leave to appeal against the whole of the
judgment and order of this Court handed down
on 22
November 2017. The application is opposed.
The
grounds
[2]
The grounds upon which the applicant relies are prolix and comprise
55 paragraphs captured in 18 pages and repeating them here
will
unnecessarily burden this judgment. The issues raised thereat
have mainly been dealt with in the judgment. The
grounds have
however been summarised under the following heads, that I erred in
finding that:
2.1
Mr Lephoto’s disclosure constituted a disclosure as
contemplated in the Protected Disclosures Act
[1]
(the Act) and a protected disclosure as contemplated by the Act;
2.2
Mr Lephoto was subjected to occupational detriment as contemplated in
the Act;
2.3
Mr Lephoto’s dismissal was not only automatically unfair, but
also procedurally and
substantively unfair;
2.4
Mr Lephoto be re-instated and awarded compensation; and
2.5
The Institute is liable for Mr Lephoto’s costs consequent upon
employment of senior
counsel.
The
test for granting leave to appeal
[3]
This is an attempt by the applicant to argue the case afresh before
the Labour Appeal Court. The test for granting an application
for
leave to appeal is stipulated as follows in the Superior Courts
Act
[2]
:
‘
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 beheard, 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.’
[4]
In
Seatlholo
and Others v Chemical Energy Paper Printing Wood and Allied Workers
Union and Others
[3]
not only did Van Niekerk J confirm that the test applicable in
applications for leave to appeal is more stringent but also
made the
following remarks:
'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)’.
[5]
I have carefully and dispassionately
[4]
considered the submissions made by the parties and am of the view
that the applicant has argued what was argued in the main trial
in
this application. I am of the view that the factual matrix will not
receive a different treatment on appeal. I do not intend
repeating
those submissions in this judgment but hold the view that the
applicant has not made out a case for leave to be granted.
The
application must therefore fail.
Costs
[6]
There is no reason why costs should not follow the result.
[7]
In the premises, the following order is made:
Order
1.
The
application for leave to appeal is dismissed with costs.
____________
MC Mamosebo
Acting Judge of the
Labour Court of South Africa
Appearances
For
the applicant:
Mr A Roskam
Haffegee
Roskam Savage Attorneys
For
the respondent:
Ms C Maphalla
Motla
Conradie Inc
[1]
Act 26 of 2000.
[2]
Section 17 of the Superior Courts
Act, 10 of 2013.
[3]
(2016) 37 ILJ 1485 (LC).
[4]
S v Smith
2012
(1) SACR 567
(SCA) at para 7.