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[2018] ZALCJHB 447
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DBT Technologies (Pty) Limited t/a DB Thermal v Garnevska (JS581/15) [2018] ZALCJHB 447 (8 June 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
reportable
Case
no: JS 581/15
In
the matter between:
DBT
TECHNOLOGIES (PTY) LIMITED t/a
DB
THERMAL REG NO. 2006/028250/07
Applicant
and
MARIELA
GARNEVSKA
Respondent
Decided:
In Chambers
Delivered:
08 June 2018
JUDGMENT: LEAVE TO
APPEAL
MABASO,
AJ:
[1]
This is an application, by DBT Technologies (Pty) Limited, for
leave to appeal against the judgment and order handed
down by this
Court on 26 January 2018., wherein this Court concluded that based on
the evidence presented before it by both parties,
the dismissal of
the respondent herein was automatically unfair and the applicant was
ordered to pay the respondent compensation
equivalent to 9 months of
her remuneration calculated from the time of her dismissal, that this
amount be paid within 30 days of
this order and that there was no
order as to costs.
[2]
On the other hand, Ms Mariela Garnevska delivered a conditional
application for leave to appeal stating that this Court
was lenient
with the applicant in that after concluding that the dismissal was
automatically unfair it should have ordered the
maximum compensation
which is 24 months and costs order against it. In her written
submissions, the respondent
inter alia
says “…
if
leave to appeal was granted in favour of the Applicant, and in such
instance only…”
her leave to appeal may be
entertained. I am therefore required first to decide the applicant's
leave to appeal and only if I agree
with it, based on the grounds
raised, then I can proceed to decide on the respondent's application
for conditional leave to appeal.
[3]
Section 17
of the Superior Courts Act
[1]
,
regulates an application of this nature, and it reads thus:
'17. Leave to
appeal.
(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]
I do not intend to deal with each of the grounds of appeal by the
applicant separately.
After careful consideration of the grounds for
leave to appeal as raised by the applicant against both the judgment
and order,
there is nothing that persuades this Court that the Labour
Appeal Court would overturn both the judgment and the order, in
favour
of the applicant, and this Court has applied its mind on all
the issues that it was required to decide.
[5]
As the respondent’s leave to appeal was a conditional one,
under the circumstances
I do not deal with it as I have already made
the finding that I do not agree with the applicant’s grounds
for leave to appeal.
[6]
In the premises, I make the following order:
Order
1. The applicant’s
application for leave to appeal is refused.
2. The
respondent's conditional leave to appeal is struck off the roll.
3. There is
no order as to costs.
_______________________
S
Mabaso
Acting
Judge of the Labour Court of South Africa
[1]
Act no 10 of 2013