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[2018] ZALCJHB 106
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University of Venda v Nemadzivhanani and Others (JR31/14) [2018] ZALCJHB 106 (15 March 2018)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case no: JR 31/14
In
the matter between:
UNIVERSITY
OF VENDA
Applicant
and
KHULISO
NEMADZIVHANANI
DONALD
KGALAKE NKADIMENG N.O
THE
COMMISSION FOR CONCILIATION,
MEDIATION
AND ARBITRATION
First Respondent
Second Respondent
Third Respondent
Considered:
In Chambers
Delivered:
15 March 2018
JUDGMENT:
APPLICATION FOR LEAVE TO APPEAL
MAMOSEBO
.
AJ
Introduction
[1]
This is an application by the first respondent, Mr Khuliso
Nemadzivhanani, for leave to appeal to the Labour Appeal Court
against
the whole of my judgment and orders dated 13 November 2017.
The applicant, the University of Venda, was served with the Notice of
Application but there is nothing in the file that shows that it is
opposing this application. Their details are kept for purposes
of
receiving a copy of this order. For the sake of consistency, the
citation of the parties shall remain as they were in the review
application. Reference to the applicant will be the applicant in the
founding affidavit.
The
grounds
[2]
The grounds on which the first respondent relies
are succinctly that I erred:
2.1
In my factual findings;
2.2
In producing a judgment that is akin to being an appeal and not a
review;
2.3
I did not consider the charges against the first respondent and the
outcome thereof;
2.4
In substituting the commissioner’s decision with my own; and
2.5
In committing errors of fact when coming to my decision.
The
test for granting leave to appeal
[3]
The test for granting an application for leave to appeal is
stipulated as follows in the Superior Courts Act
[1]
:
‘
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.’
[4]
Central to the determination of applications for leave to appeal is
whether there are reasonable prospects of success in the
appeal. It
is trite that this test raises the threshold of the test for leave to
appeal.
[2]
[5]
Regard being had to the first respondent’s submissions and upon
reflection of my judgment, I am not persuaded that reasonable
prospects exist on appeal and this application therefore stands to
fail.
[6]
In the premise, I make the following order:
Order
1.
The application for leave to appeal against the judgment and order of
this Court delivered on 13 November 2017
is dismissed.
2
I
make no order as to costs.
____________
MC Mamosebo
Acting
Judge of the Labour Court of South Africa
Appearances
For
the applicant:
Advocate Thando Ntsokota
Instructed
by:
Mr S Sithole
Bowman
Gilfillan Inc
For
the first respondent:
Advocate N Cassim SC
Advocate
M Desai
Instructed
by:
Mvundlela Attorneys
[1]
Section 17
of the
Superior Courts
Act, 10 of 2013
[2]
Seatlholo & Others v Chemical
Energy Paper Wood & Allied Workers Union & Others
(2016) 37 ILJ 1485 (LC) at para 3.