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[2018] ZALCJHB 344
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National Education Health and Allied Workers Union obo Gxotha v Van Aarde NO and Others (JR1328/14) [2018] ZALCJHB 344 (12 October 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
no: JR 1328/14
In
the matter between:
NATIONAL
EDUCATION HEALTH AND
ALLIED
WORKERS UNION o.b.o SIPHO
GXOTHA Applicant
and
COMMISSIONER
M. VAN AARDE
N.O
First
Respondent
GENERAL
PUBLIC SERVICE
SECTORAL
BARGAINING COUNCIL
.
Second
Respondent
OFFICE
OF THE PREMIER: NORTHERN
CAPE
PROVINCE Third
Respondent
Decided
in Chambers
Delivered:
12 October 2018
JUDGMENT
– APPLICATION FOR LEAVE TO APPEAL
TLHOTLHALEMAJE,
J:
[1]
The applicant’s application to review and set aside the
arbitration award issued by the first respondent was dismissed
in a
judgment delivered on 3 August 2018. On 20 August 2018,
the applicant launched an application for leave
to appeal against the
whole judgement.
[2]
The applicant further filed an application for condonation for the
purported late filing of the application for leave to appeal.
The
third respondent filed two notices of its intention to oppose both
the application for condonation and leave to appeal.
[3]
In terms of the provisions of sub-rule 30(2) of the Rules of this
Court, the applicant in an application for leave to appeal
is
required to file the prerequisite notice of application for leave to
appeal within 15 days from the date of the judgment. The
non-compliance with the time-frames provided in terms of the sub-rule
may be extended on good cause shown by the party seeking
condonation.
It is trite that the computation of the time-frames in terms of the
Rules excludes the first-day, weekends and public
holidays, but
includes the last day.
[4]
In this case, the judgment was delivered on 3 August 2018
and the application for leave to appeal was filed on 20 August 2018.
This was well within the 15 days’ time-period provided for in
terms of the Rules of this Court and thus an application for
condonation was not necessary.
[5]
The applicant has advanced various grounds in support of the
application for leave to appeal. He contends
inter alia
that
the Court misdirected itself by failing to conclude that the
Commissioner committed an irregularity on account of his failure
to
properly analyse the evidence, or omitted to consider or have regard
to the evidence of certain witnesses or certain material
information.
The applicant further contended that the Court misdirected itself by
not holding that the first respondent misconceived
the nature of the
inquiry before him.
[6]
The test to be applied in an
application for leave to appeal is fairly trite. It entails a
consideration of whether there are reasonable
prospects that the
appeal would succeed before another court, and in this case, the
Labour Appeal Court. The test, including
that of reasonable
prospects was explained
in
S v Smith
[1]
as follows:
‘
What
the test of reasonable prospects of success postulates is a
dispassionate decision, based on the facts and the law that a court
of appeal could reasonably arrive at a conclusion different to that
of the trial court. In order to succeed, therefore, the appellant
must convince this court on proper grounds that he has prospects of
succeed on appeal and that those prospects are not remote but
have
realistic chance of succeeding. More is required to be established
than that there is a mere possibility of success, that
the case is
arguable on appeal or that the case cannot be categorised as
hopeless. There must, in other words, be a sound, rational
basis for
the conclusion that there are prospects of success an appeal’.
[7]
I have had regard to the submissions made in support of the
application for leave to appeal. The applicant essentially rehashes
the same issues that were dealt with and disposed of in the judgment,
and no purpose will be served in this judgment with a repeat
of those
issues. I have also had regard to the opposition to the application
for leave to appeal and again reflected on my judgment
and the
reasons for dismissing the applicant’s review application. Upon
these considerations, coupled with those of the applicable
legal
principles, I am not convinced that there is a sound and/or
rational basis upon which a conclusion can be reached that
there are
reasonable prospects of success on appeal before the Labour Appeal
Court.
[8]
Accordingly, the following order is made;
Order:
1. The application for leave to appeal
the judgment and order of this court delivered on 3 August 2018
is dismissed.
2. There is no order as to costs.
____________________
E Tlhotlhalemaje
Judge
of the Labour Court of South Africa
[1]
2012 (1)
SACR 567
(SCA) (15 March 2011) at para 7