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 242
|
|
Govan Mbeki Local Municipality v South African Local Government Bargaining Council and Others (JR465/15) [2018] ZALCJHB 242 (10 July 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
no: JR465/15
In
the matter between:
GOVAN
MBEKI LOCAL
MUNICIPALITY
Applicant
and
SOUTH
AFRICAN LOCAL GOVERNMENT
BARGAINING
COUNNCIL
First
Respondent
ARBITRATOR
N.H
MATSEPE
Second
Respondent
SOUTH
AFRICAN MUNICIPAL WORKERS UNION
obo
MASHININI
M.E
Third
Respondent
Decided:
In Chambers
Delivered:
10 July 2018
JUDGMENT:
LEAVE TO APPEAL
MAHOSI
J
Introduction
[1]
This is an opposed application for leave to appeal against the whole
judgment and orders of this Court handed down on 31 January
2018 in
terms of which the Court held as follows:
‘
1.
The arbitration award is reviewed and set aside and substituted with
the following order:
1.1
The third respondent’s dismissal was substantively fair, but
procedurally unfair.
1.2
The applicant is ordered to pay the third respondent’s
compensation equivalent to his salary for three months at his rate
at
the time of dismissal.
2.
Each party is to pay its own costs.’
[2]
Before me, is also an application for condonation for the late filing
of the leave to appeal. The respondent opposes the application.
[3]
For sake of convenience, the parties are cited as they were in the
review application.
Condonation
[4]
In terms of Rule 30(2) of the Labour Court Rules, the third
respondent was required to file this application within 15 days
of
the date of judgment or order. As aforesaid, the judgment was handed
down
on 31 January 2018. The last day on
which the application for leave to appeal was required to be filed
was 15 February 2018. However,
the
application for leave to appeal was only served and filed on 15 March
2018. The application for leave to appeal was therefore
filed 40 days
out of the prescribed time limits.
[5]
On 20 April 2018, the third respondent delivered submissions in
respect of the application for leave to appeal and the condonation
application for the late filing of the application for leave to
appeal. On 26 April 2018, the applicant delivered answering
submissions
in respect of the application for leave to appeal and
opposed the condonation application.
[6]
Having considered the application for condonation, the late filing of
the application for leave to appeal and the late filing
of the
submissions in respect of the leave to appeal is condoned.
The
test for leave to appeal
[7]
In determining whether to grant an application for leave to appeal,
the traditional test is whether there is a reasonable prospect
that
another court may come to a different conclusion.
[1]
In terms of section 166(1) of the Labour Relations Act (LRA),
[2]
a party to proceedings before the Labour Court, may apply to the
Labour Court for leave to appeal to the Labour Appeal Court (LAC)
against any final judgment or final order of the Labour Court.
Section 17 of the Superior Court Act,
[3]
which applies to the Labour Court, regulates instances in which the
appeal may be granted. Section 17(1) provides as follows:
‘
Leave
to appeal may only be given where the judge or judges 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 decisions 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 issue between the parties.’
[8]
Section 16(2)(a) of the Superior Court Act provides as follows:
‘
(i)
When at the hearing of the appeal the issues are of such a nature
that the decision sought will have no practical effect, the
appeal
may be dismissed on this ground alone.
(ii)
save under exceptional circumstances, the question whether the
decision would have no practical effect or result is to be determined
without reference to any consideration of costs.’
[9]
In
Martin
and East (Pty) Ltd v National Union of Mineworkers and Others,
[4]
the LAC made it clear that leave to appeal is not simply there for
the taking, and that this Court must be cautious in granting
leave to
appeal and in assessing the requirement of the prospect of success.
In this case, the Court stated as follows:
‘…
The
Labour
Relations Act was
designed
to ensure an expeditious resolution of industrial disputes. This
means that courts, particularly courts in the position
of the court
a
quo,
need to be cautious when leave to appeal is granted, as should this
Court when petitions are granted.
There
are two sets of interests to consider. There are the interests
of the parties such as appellant, namely who are entitled
to have
their rights vindicated, if there is a reasonable prospect that
another court might come to a different conclusion. There
are also
the rights of employees who land up in a legal “no-man’s-land”
and have to wait years for an appeal
(or two) to be prosecuted.
This
was a case which should have ended in the labour court. This
matter should not have come to this court. It stood
to be
resolved on its own facts. There is no novel point of law to be
determined nor did the Court
a quo
misinterpret existing law.
There was no incorrect application of the facts; in particular the
assessment of the factual justification
for the
dismissals/alternative sanctions.
I
would urge labour courts in future to take great care in ensuring a
balance between expeditious resolution of a dispute and the
rights of
the party which has lost. If there is a reasonable prospect that the
factual matrix could receive a different treatment
or there is a
legitimate dispute on the law, that is different. But this kind
of case should not reappear continuously in
courts on appeal after
appeal, subverting a key purpose of the Act, namely the expeditious
resolution of labour disputes.’
[5]
[10]
The third respondent raised a number of grounds of appeal but in
essence, its submission was basically that the Court erred
in coming
to the conclusion of reviewing and setting aside the arbitration
award of the second respondent and making a finding
that the third
respondent’s dismissal was substantively fair. Further that the
Court erred in admitting and referring to
evidence that was not
relevant for purposes of the review application.
[11]
The applicant submitted that there are no discrepancies that exist
between the findings made by this Court and the evidence
presented by
the applicants during both the arbitration hearing and the review
application.
[12]
Having had regard to the third respondent’s
submissions, I am not persuaded that there are reasonable prospects
of a successful
appeal. As such, I am of the view that this
application is without merit and must be dismissed.
[13]
Accordingly, I make the following order:
Order
1.
The condonation application for late filing
of the application for leave to appeal is granted.
2.
The application for leave to appeal is
dismissed.
3.
There is no order as to costs.
__________________
D.
Mahosi
Judge
of the Labour Court
[1]
See
Karbochem
Sasolburg (A Division of Sentrachem Ltd) v Kriel and Others
(1999) 20 ILJ 2889 (LC) at 2890B;
Ngcobo
v Tente Casters (Pty) Ltd
(2002) 23 ILJ 1442 (LC) at 1443 para 2 and
Tsotetsi
v Stallion Security (Pty) Ltd
(2009) 30 ILJ 2802 (LC) at 2804 para 14.
[2]
Act
66 of 1995 as amended.
[3]
Act
10 of 2013.
[4]
(2014)
35 ILJ 2399 (LAC).
[5]
At
2405-2406.