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[2018] ZALCJHB 155
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Gxolo v Harmony Gold Mine (Pty) Ltd and Another (J1124/2017) [2018] ZALCJHB 155; [2018] 8 BLLR 794 (LC) (19 April 2018)
Of
interest to other judges
THE LABOUR COURT OF
SOUTH AFRICA,
HELD AT JOHANNESBURG
Case No: J 1124/2017
In
the matter between:
JONES BONAKELE
GXOLO
Applicant
and
HARMONY GOLD MINE
(PTY) LTD
Respondent
COMMISSION FOR
CONCILIATION,
MEDIATION AND
ARBITRATION
Respondent
Delivered:
19 April 2018
JUDGMENT
ON APPLICATION FOR LEAVE TO APPEAL
LAGRANGE
J
Background
[1]
This is an unopposed application for leave to appeal against the
judgment handed down in this matter on 27 October 2017 dismissing
an
application to declare disciplinary processes and all subsequent
proceedings under the CCMA unlawful and
void ab initio
and
ordering the applicant’s retrospective reinstatement to the
date of his dismissal in 2010.
[2]
The original application was also unopposed. The applicant served the
application for leave to appeal on the registrar without
serving a
copy on the first respondent, apparently having taken the view it was
unnecessary because the original application was
unopposed.
Subsequently, at the court’s direction, it appears that the
application for leave to appeal was also served on
the respondent on
21 February 2018. In passing, it should be mentioned that the
applicant’s reliance on
Standard Bank Appellant v Estate
van Rhyn
1925 AD 266
as a basis for originally not
notifying the first respondent of the application for leave to appeal
is misplaced as that case was
concerned
inter alia
with
peremption of a right of appeal by the losing party. In this case,
the first respondent was the winning party,
albeit
by default.
It is entitled to know if the applicant now seeks to overturn a
result which was in its favour.
The
appeal
[3]
Th
e
central ground of appeal is set out and discussed briefly below.
Before dealing therewith, it must be stressed that the test for
granting leave to appeal requires the court to be satisfied that
there is more than simply a possibility that another court may
decide
the matter differently (see
Seathlolo
& others v Chemical Energy Paper Printing Wood & Allied
Workers Union & others
[1]
).
[4]
T
he
applicant claims the court failed to appreciate that his case
concerned the invalidity of the charge sheet which set out the
charges on which he was dismissed and argues that the Court ought to
have realised this rendered his dismissal unlawful and void
ab
initio
.
He further claims that the Court erred in not equating his dismissal
with that of a public servant and that the court should have
realised
that he did not have to establish that his dismissal was a nullity
because of a fundamental breach of his employment contract,
but
simply that, it was an unlawful dismissal by reasoning analogous to
that in the cases
Mokopanele
en Andere V Administrateur, Oranje Vrystaat,en Andere
[2]
and
Tlali
v Mantsopa Local Municipality and Others
(A78/11)
[2011] ZAFSHC 195
(1 December 2011)
.
In short the applicant contends that no distinction ought to be made
between a claim of invalid dismissal involving an employee
in private
employment and an employee in public employment.
[5]
How
ever,
in
Mokopanele
’s
case, which pre-dated the
Labour Relations Act, 66 of 1995
, it was
fundamental to that judgement that the basis for arguing that the
dismissal of the employees was invalid was because, in
exercising the
power to summarily dismiss the employees for misconduct under clause
5 (2) of the Public Service Personnel Code,
the administrator had
failed to afford them the
administrative
law
right of
audi
alterem partem
before
dismissing them.
[3]
The
unlawfulness of their dismissals was squarely founded on
administrative law principles. Similarly, the invalidity of the
dismissal
in
Tlali’s
case
rested on the local authority terminating a fixed term contract
contrary to a regulation.
[4]
The
applicant has provided no legal authority why the principles of
unlawful administrative action are applicable to his situation
in the
private sector, in the absence of any reliance on a breach of the
employment contract.
[6]
I am
satisfied that no other
court is likely to come to a different conclusion.
Order
The
application for leave to appeal is dismissed with no order as to
costs.
_______________________
Lagrange
J
Judge
of the Labour Court of South Africa
(18 April 2018 - In
chambers)
[1]
(2016) 37
ILJ
1485 (LC) at 1486, paras [2]-[3].
[2]
1989 (1) SA 434 (O)
[3]
At 440B-F
[4]
At paras [18]-[19].