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[2018] ZALCJHB 312
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Mamoliki v General Public Service Sectoral Bargaining Council and Others (JR2068/11) [2018] ZALCJHB 312 (5 October 2018)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
case
no:
JR2068/11
In
the matter between:
JOSEPH
MAMOLIKI
Applicant
and
GENERAL
PUBLIC SERVICE SECTORAL
BARGAINING
COUNCIL
First
Respondent
PANELIST
P M NGAKO,
N.O.
Second
Respondent
DEPARTMENT
OF CORRECTIONAL SERVICES
Third
Respondent
JB
MULLER
Forth
Respondent
Decided
:
In Chambers
Delivered
:
05
October
2018
Summary:
Application for leave to appeal; no reasonable prospect that the
appeal would succeed; Application dismissed with no order
as to
costs.
JUDGMENT: LEAVE TO APPEAL
VOYI
AJ,
Introduction
[1]
The applicant seeks leave to appeal against the judgment of this
Court dismissing his application to review and set aside an
arbitration award that was issued by the second respondent.
[2]
The application for leave to appeal is not opposed by any of the
respondents
Grounds
for seeking leave to appeal
[3]
In his application for leave to appeal, the
applicant advances six grounds upon which he contends this Court
erred. The grounds
for seeking leave to appeal are articulated as
follows:
“
1.
While the learned Judge correctly finds that the Arbitrator committed
an error of law in finding that he (the Arbitrator) was
unable to
grant the relief sought by the Applicant on the basis that what the
Applicant thought (sic) was out of his realm, it
fell within the
prerogative of the National Commissioner, the learned Judge erred in
fact in determining that the materiality of
the error was
insufficient to vitiate the award of the Arbitrator;
2.
while the learned Judge correctly found that the Arbitrator had the
discretionary power to order the promotion of the Applicant,
the
learned Judge committed an error in fact and law when he went on to
state that there was nothing before the learned Judge to
indicate
that granting the promotion of the Applicant will have been a forgone
conclusion had the Arbitrator correctly understood
such power vested
in him;
3.
The learned Judge, with respect, committed a material error in law by
applying a test of whether the granting of a promotion
would have
been a foregone conclusion had the Arbitrator correctly understood
his powers;
4.
The learned Judge committed, with respect, an error in fact and in
law by placing reliance on a six-year time frame that have
passed
where this was not an issue before the learned Judge and without
considering any other factors related to an appropriate
remedy;
5.
The learned Judge committed an error in both fact and in law by
finding that the compensation granted was substantial and adequately
served as
solatium
for the violation to the employee’s right fair (sic) labour
practice;
6.
The learned Judge erred in both fact in law (sic) in finding that the
error committed by the Arbitrator was not material, or
that it did
not affect the outcome.”
[4]
In essence, the applicant takes issue with
this Court’s finding that the error of law committed by the
second respondent was
not material and could not have affected the
outcome arrived at.
Evaluation
[5]
The
provisions of s 17(1)
of
the Superior Courts Act
[1]
lay down the test to be applied in an application for leave to
appeal. In particular, s 17(1)(a)(i) stipulates that I may only
grant
leave to appeal if I am of the opinion that the intended appeal
“…
would have a
reasonable prospect of success
;”.
[6]
Observing from the
deliberate use of the modal verb “would” in s
17(1)(a)(i), it is by now trite that the threshold
has been set
higher for applications of the present nature.
[2]
[7]
In
his application for leave to appeal, the applicant maintains that
“…
another
Court might have come to a different conclusion:
”.
In his written submissions in support of the application, the
applicant makes specific reference to the decision of the
Supreme
Court of Appeal in
S
v Smith
[3]
.
There is also an allusion to s 17(1) of the Superior Courts Act.
[8]
Having thoroughly considered the
application for leave to appeal and the submissions in support
thereof, I am not persuaded that
the desired appeal would have a
reasonable prospect of success.
[9]
The
mere commission of an error of law by the second respondent did not,
in and of itself, result in misconduct as contemplated
by s
145(2)(a)(i) of the Labour Relations Act.
[4]
The key issue was the materiality of the error of law committed.
[10]
Whether or not an error of law is material
depends on its effect to the outcome of the decision. The relief that
was sought by the
applicant before the second respondent was not the
only remedy that could be granted in an instance where an employer
had committed
an unfair labour practice relating to promotion.
[11]
Under s 193(4) of the LRA, the second
respondent was permitted to determine the unfair labour practice
dispute lodged by the applicant
on terms that he deemed reasonable,
including ordering reinstatement, re-employment or compensation.
[12]
In the end, the second respondent granted
the applicant maximum compensation for the unfair labour practice
committed by the third
respondent.
[13]
Not only did the second respondent award
maximum compensation, he went on to set aside the appointment of the
fourth respondent.
[14]
In his application for review, the
application asked this Court to substitute the second respondent’s
award with an order
in the following terms:
‘
2.1.
The third respondent committed an unfair labour practice relating to
promotion against the applicant;
2.2.
The appointment of the fourth respondent to the position of DD: Head
of Correctional Centre: Leeuwkop Medium B Management Area
is hereby
set aside;
2.3.
The third respondent is ordered to promote and or appoint the
applicant to the position of DD; Head of Correctional Centre:
Leeuwkop Medium B Management Area;
2.4
The third respondent, Department of Correctional Services is ordered
to compensate the applicant, Joseph Mamoliki in the amount
of R201,
804.00 (two hundred and one thousand eight hundred and four rand)…’
[15]
As can be seen from the above, the
applicant was seeking from this Court an order directing the third
respondent to appoint him
as well as an order for payment of
compensation.
[16]
I am
of the view that the relief that the applicant was entitled to was
either the appointment he sought or compensation. It could
not have
been both. The applicant could not have been appointed and also paid
compensation at the same time.
In
this regard, I take
the
position that the reasoning of the Constitutional Court in
Equity
Aviation Services (Pty) Ltd v Commission for Conciliation, Mediation
and Arbitration and Others
[5]
,
with reference to s 193(1) of the LRA, equally applies to the
provisions of s 193(4).
[17]
Ultimately, the applicant was awarded full
compensation for the unfair labour practice committed by the third
respondent.
[18]
With the remedy granted to the applicant by
the second respondent, I could not see how the error committed by the
latter may have
affected the outcome of his decision.
[19]
It was for this reason that I came to the
conclusion that in as much as the second respondent may have erred in
law, the error so
committed was not material.
Conclusion
[20]
For all the above reasons, I remain
unpersuaded that the desired appeal would have a reasonable prospect
of success. In my considered
opinion, no such prospect exists in this
matter.
[21]
The application for leave to appeal was not
opposed. Accordingly, no order for costs is necessary.
[22]
I therefore make the following order:
Order
1 The application for leave to appeal
is dismissed.
2 There is no order as to costs.
_______________________
NP Voyi
Acting
Judge of the Labour Court of South Africa
[1]
Act 10 of
2013.
[2]
Seathlolo and Others v
Chemical Energy Paper Wood and Allied Workers Union and Others
(2016) 37
ILJ
1485 (LC) at para 3.
[3]
2012 (1)
SACR 567 (SCA).
[4]
Act
66 of
1995 as amended (“the LRA”).
[5]
(2008) 29
ILJ 2507 (CC) at
para
41 and 42.