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[2018] ZALCJHB 279
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North West Development Corporation (NWDC) v Mohlahlo and Another (J980/18) [2018] ZALCJHB 279 (23 August 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case no: J 980/18
In the matter between:
NORTH-WEST DEVELOPMENT
CORPORATION
(NWDC)
Applicant
and
ABIEL
MOHLAHLO
First
Respondent
SHERIFF MAHIKENG (MR.
H.C. ACKERMAN
N.O
)
Second
Respondent
Decided: In Chambers
Delivered: 23 August
2018
JUDGMENT-APPLICATION
FOR LEAVE TO APPEAL
MAHOSI J
Introduction
[1] This is an opposed
application for leave to appeal against the portion of the judgment
and an order of this Honourable Court
handed down on 26 April 2018 in
terms of which the applicant’s application was struck off the
roll and the court ordered
the applicant’s attorney, Mr Henk
Wissing, to pay the first respondent’s costs incidental to this
application
de bonis propriis
on the scale as between attorney
and client.
The applicable law and
analysis
[2]
In determining whether to grant an application for leave to appeal,
the 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.’
[3] 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.’
[4]
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]
[5] The applicant raised
a number of grounds of appeal but in essence, its submission is
basically that the Court erred in misinterpreting
the Court Order
granted by Judge Gush on 5 April 2018, in dealing with the issue of
urgency and further in striking the matter
off the roll with costs.
[6] The applicant further
submitted that the Court erred in finding that grounds existed for
punitive
de bonis propriis
costs to be ordered against the
applicant’s representative, as another Court had accepted the
bond of security and stayed
the sale in execution. The applicant
submits that another Court could find that the order as to costs was
erroneously made under
the circumstances.
[7]
The first respondent submitted that Mr. Henk Wissing acted
dishonestly by placing before the Court misleading and false
information
and by withdrawing the pending application after this
matter was instituted so that the
first
respondent would not be able to raise
lis
pendens
point. Further that the
applicant misled the court by submitting that the only issue to be
decided was the issue of security. The
applicant further submitted
that the Court had to show its displeasure against such conduct by
ordering the costs
de bonis propriis.
The first respondent’s view is
that there are no prospects of success on appeal as it is the
discretion of the Court to order
costs.
[8]
Having had regard to parties’
submissions
, I am not persuaded that there
are reasonable prospects that the Labour Appeal Court could come to a
different conclusion
[9] Accordingly, I make
the following order:
Order
1.
The application for leave to appeal is
dismissed.
2.
There is no order as to costs.
__________________
D. Mahosi
Judge of the Labour Court
Appearances:
For the applicant:
For the third respondent:
[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.