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[2018] ZALCJHB 219
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Malatji v Bokoni Platinum Mine and Others (JR456/15) [2018] ZALCJHB 219 (28 June 2018)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case
no: JR 456/15
In the matter between:
LEBOGO JESSINA
MALATJI
Applicant
and
BOKONI
PLATINUM
MINE
First
Respondent
THE
COMMISSION FOR CONCILIATION
MEDIATION
AND
ARBITRATION
Second
Respondent
M C LEBEA
N.O.
Third
Respondent
Decided: In Chambers
Delivered:
28 June 2018
JUDGMENT-APPLICATION
FOR LEAVE TO APPEAL
PRINSLOO. J
Introduction
[1]
This
matter came before me on 14 March 2018 and on 23 March 2018 I granted
condonation for the late filing of the application for
review but
dismissed the review application.
[2]
It
is against this judgment that the applicant seeks leave to appeal.
The First Respondent opposes the application.
Condonation
[3]
The
application for leave to appeal is about six (6) days late. The
Applicant has filed an application for condonation for the late
filing of the application for leave to appeal. The delay is minimal
and the explanation proffered is satisfactory and I therefore
grant
condonation.
The
test for leave to appeal
[4]
It
is trite that an applicant in an application for leave to appeal must
convince the court
a
quo
that it has reasonable prospects of success on appeal. What the test
requires is the reasonable likelihood that another court,
presented
with the same facts and evidence as this Court, could come to a
different conclusion than the one arrived at by this
Court.
[5]
In
Seatlholo
and Others v Chemical Energy Paper Printing Wood and Allied Workers
Union and Others
[1]
this Court confirmed that the test applicable in applications for
leave to appeal is stringent and held as follows:
[6]
“
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)”.
[7]
Appeals
should be limited to matters where there is a reasonable prospect
that the factual matrix could receive a different treatment
or where
there is some legitimate dispute on the law.
Grounds
for leave to appeal
[8]
Both
parties have filed submissions in respect of the application for
leave to appeal. I have considered the
the
grounds for appeal as well as the submissions made in in opposition
thereof and I do not intend to repeat those
verbatim
herein.
[9]
The
Applicant has raised various grounds for leave to appeal and having
considered them, I am not persuaded that any of them has
merit. I
will refer to a few of the main grounds
to
illustrate that the application for leave to appeal is without merit.
[10]
The
crux of the applicant’s complaint as set out in the grounds for
leave to appeal is essentially as follows
:
[11]
Firstly,
the applicant contends that this Court rejected and erred in not
attaching value to the founding affidavit on the basis
that it was
deposed to by the applicant’s attorney. Furthermore, the Court
erred in finding that the applicant did not depose
to a confirmatory
affidavit confirming the contents of his attorneys’ founding
affidavit. This attack on the judgment is
illogical, as is
demonstrated by the following passages from the judgment:
‘
[
52]
The Applicant filed an application for review and the founding
affidavit in the review application was not deposed to by the
Applicant, but was deposed to by Mr Makinta, his attorney of record.
The affidavit is deposed to on the strength that Mr Makinta
is
authorised by the Applicant to bring the application and that all the
facts stated in the affidavit are based on Mr Makinta’s
instructions.
[53] Mr Makinta has no personal
knowledge of the facts he deposed to and it is doubtful that he can
depose to an affidavit stating
facts under oath on the strength of
instructions. The authority to act on behalf of a client is not the
same as having
locus standi
to depose to a founding affidavit
wherein facts within the personal knowledge of the deponent are to be
placed before Court.
[54] In my view the Applicant should
have deposed to the founding affidavit in the review application and
little value can be attached
to what Mr Makinta stated under oath. It
is not explained why the Applicant did not depose to the founding
affidavit himself, nor
did he depose to a confirmatory affidavit. The
Applicant deposed to a supplementary affidavit wherein he seeks to
confirm the contents
of the affidavit deposed to by Mr Makinta.
[55] The affidavits filed in this
application are problematic in that the founding affidavit is deposed
to by a deponent with no
personal knowledge of the facts and the
supplementary affidavit appears to be a hybrid between a confirmatory
and founding affidavit
in that the deponent confirms what was said in
the founding affidavit and then dealt with the facts and the
background in no way
proper for a supplementary affidavit, but rather
akin to a founding affidavit.
[56] Be that as it may, the obvious
issues with the affidavits in this application were surprisingly not
raised by Bokoni. ‘
[12]
The
clear reading of the above passages demonstrate that they are merely
obiter
dictum
and
the issues identified in respect of the applicant’s affidavit,
had no bearing on the decision of the Court or the outcome
of the
applicant’s case. It is evident from the judgment that all the
grounds for review raised by the applicant had indeed
been
considered, notwithstanding the defective founding affidavit and
there is no merit in the applicant’s allegation that
his
founding affidavit was rejected and that no value was attached to it.
[13]
The
applicant further submits that the dispute and the judgment raise
important questions of fact and law which, together with the
record,
if presented before the Labour Appeal Court (LAC), would lead to a
finding that the arbitration award is unreasonable.
There is no merit
in this ground.
[14]
In
Westing
House Break and Equipment (Pty) Ltd v Bilger Engineering (Pty) Ltd
[2]
the
court stated that an appeal should be allowed where the matter is of
great importance or where the matter is of public importance
or where
the court is of the view that the decision might affect other
questions
.
This matter involves a review and setting aside of the arbitration
award. The principles governing reviews are trite, the Court
has had
the benefit of the pleadings as well as the record. No novel point
arises from the facts of this matter. There is no reason
why the LAC
should be burdened with a meritless appeal.
[15]
In
casu,
applying
the principles applicable to applications for leave to appeal, I am
not persuaded that there are reasonable prospects that
the LAC would
arrive at a different conclusion than the one arrived at by this
Court.
The
applicant failed to make out a case for leave to appeal to be
granted.
[16]
In
the result I make the following order:
Order
Condonation
for the late filing of the application for leave to appeal is
granted.
The
application for leave to appeal is dismissed;
There is no order as to
costs.
_____________________
Connie Prinsloo
Judge of the Labour Court
[1]
(2016) 37 ILJ 1485
(LC)
[2]
1986 (2) SA 555
(A)