About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2018
>>
[2018] ZALCJHB 146
|
|
Mbatha v Sibanye Gold Property Division and Others (JR46/15) [2018] ZALCJHB 146 (13 April 2018)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case no: JR 46/15
In
the matter between:
SENZO
MBATHA
Applicant
and
SIBANYE
GOLD PROPERTY DIVISION
THE
COMMISSION FOR CONCILIATION,
MEDIATION
AND ARBITRATION
LARRY
SHEAR
N.O.
First Respondent
Second Respondent
Third Respondent
Considered:
In Chambers
Delivered:
13 April 2018
JUDGMENT
- APPLICATION FOR LEAVE TO APPEAL
MAMOSEBO
.
AJ
Introduction
[1] The applicant, Mr
Senzo Mbatha, seeks leave to appeal against the whole of my judgment
and order handed down on 15 November
2017 in which I dismissed his
application to review and set aside the commissioner’s award.
Condonation
[2]
Before dealing with the application, let me dispose of an application
for condonation brought by the first respondent in terms
of Rule
12(3)
[1]
. The written
submissions opposing the application for leave to appeal to this
Court was filed 4 days out of time. The applicant
did not oppose. It
is not necessary to set out the factors that have informed my
decision on this issue. Suffice it to say, on
balance I take the view
that condonation should be granted. See
Melane
v Santam Insurance Co Ltd
[2]
.
The grounds
[3]
It will be prudent for the applicant to take cognisance of the
admonition by the Labour Appeal Court in
Sasol
Nitro v National Bargaining Council for the Chemical Industry and
Others
[3]
. The applicant has repeated, duplicated and paraphrased the same
grounds. It is clear to me that care should be taken for him
to
ensure brevity, lucidity and cogency in his applications. That having
been said, and as far as I could untangle the grounds
the
applicant contends that I erred:
3.1
In setting aside the award and in holding that the applicant’s
dismissal is substantively
fair. This is not the case. I confirmed
the decision by the commissioner and dismissed his application to set
aside the award.
3.2
In not accepting the existence of a standard practice to sign off
payments for incomplete work
for the so-called reputable contractor.
3.3
In finding that the arbitrator acted reasonably.
The test for granting
leave to appeal
[4]
The test to be applied in determining whether an application for
leave to appeal should be granted or not is governed by s 17
(1) of
the Superior Courts Act
[4]
. The
questions to be asked are whether there is a reasonable prospect that
the factual matrix could receive a different treatment
or whether
there exists a legitimate dispute on a point of law which I may have
misinterpreted.
[5]
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. See
Seatlholo
& Others v Chemical Energy Paper Wood & Allied Workers Union
& Others
[5]
.
[6]
It is clear that the arbitration proceedings and the main judgment
dealt with these issues raised in the application for leave,
particularly, on the so-called reputable contractor and
payments made to it before work was completed. This application
is
fraught with overlapping, repetition and clerical ambiguities which
are incomprehensible to make out where I erred.
[7]
In the light of the above, and regard being had to the submissions by
the parties with regards to the application for leave
to appeal, the
opposition thereto, and having reflected on my judgment
dispassionately, it is my view, that the applicant has not,
by any
stretch of imagination, raised cogent grounds for leave to be
granted. In my view, there are no reasonable prospects of
success on
appeal. It therefore follows that this application must fail.
Costs
[8]
Counsel for the first respondent submitted that at trial stage
Sibanye Gold Property Division did not ask for costs mindful
of the
relationship between itself and the National Union of Mineworkers who
represented the applicant during the arbitration proceedings.
In the
application before me the union does not feature. It is on that basis
that the first respondent asked for costs for opposing
this
application for leave to appeal.
[9]
Costs in the Labour Court are awarded according to the requirements
of the law and fairness.
[6]
In
the exercise of my discretion I have considered that ordering
costs against the applicant may discourage those in his
similar
position to approach court for intervention where they require
resolution of disputes. Having taken fairness into account
I am of
the view that it will be appropriate not to make any cost order.
[10] In the premise, I
make the following order:
Order:
1.
Condonation
is granted.
2.
The
application for leave to appeal against the judgment and order of
this Court delivered on 15 November 2017 is dismissed.
____________
MC Mamosebo
Acting
Judge of the Labour Court of South Africa
Appearances
For the
applicant:
Mr ES Makinta of ES Makinta Attorneys
For
the first respondent:
Advocate F Venter
Instructed
by:
Solomon Holmes Attorneys
[1]
Of the Labour Court Rules as
promulgated by GN 1665 in GG 17495 of 14 October 1996 as amended.
[2]
1962 (4) SA 531
(A) at 532C – F
[3]
(20170 38 ILJ 2322 (LAC) at para 4.
[4]
Act 10 of 2013.
[5]
(2016) 37 ILJ 1485 (LC) at para 3.
[6]
Section 162 (1) of the LRA.