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[2018] ZALCJHB 367
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Bolton v CCMA and Others (JR1113/14) [2018] ZALCJHB 367 (9 November 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case No:
JR1113/14
In the matter
between:
VAUGH MORGAN
BOLTON
Applicant
And
CCMA
First Respondent
ZAKHELE
MHLAMBO
Second Respondent
SHOPRITE CHECKERS
(PTY) LTD
Third Respondent
Considered: In
chambers
Delivered:
9 November 2018
JUDGMENT
– LEAVE TO APPEAL
SEDILE, AJ
[1] The applicant’s
review application for an order reviewing and setting aside the award
issued by the Commission for Conciliation
Mediation and Arbitration
was dismissed in a judgment delivered on 24 August 2018. The
applicant has since launched an application
for leave to appeal
against that judgment and order. The application is opposed by the
third respondent. The applicant applied
for leave to appeal on 13
September 2018 outside the ten days’ time limit applicable in
terms of Rule 30 (3A) of the rules
of this Court. There was no
application for condonation for late filing by the applicant.
[2] The principles
applicable leave to appeal applications are trite. The enquiry
is whether there is a reasonable prospect
that another court (in this
case, the Labour Appeal Court) may come to a different conclusion to
that reached in the judgment that
is sought to be taken on appeal. In
explaining what ‘reasonable prospects’ entail, the
Supreme Court of Appeal in
S v Smith
[1]
where it was held:
‘
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’.
[3] The threshold or
test for the granting of leave to appeal is stringent as further
demonstrated in
Martin and East (Pty) Ltd v NUM
[2]
where it was emphasised that this Court ought to be cautious when
granting leave to appeal, as the statutory imperative of the
expeditious resolution of labour disputes necessarily requires
that appeals be limited to those matters in which there are
reasonable prospects that the factual matrix could receive different
treatment or where there is some legitimate dispute on the
law.
[4] I have had
regard to the submissions made on behalf of the applicant and in
particular, authorities referred therein. I have
also had regard to
the submissions made in opposing this application. Further having
reflected on my judgment, I hold the view
that the grounds upon which
leave to appeal is sought and the arguments raised in that regard
were sufficiently dealt with in the
judgment, and it would thus not
be necessary to address each and every ground.
[5] Based on the
facts and the law as addressed in the judgment, the grounds upon
which leave to appeal is sought and submissions
made on behalf of the
applicant, I am thus not convinced that there are compelling reasons
or sound and/or rational basis for a
conclusion to be reached that
the applicant has prospects of success on appeal.
[6] I have further
has regard to the requirements of law and fairness in regard to an
award of costs, and hold the view that a cost
order is warranted in
this case.
[7] Accordingly, the
following order is made;
Order
1. The application
for leave to appeal is dismissed;
2. The applicant is
ordered to pay costs on an attorney and client scale.
P.
Sedile
Acting
Judge of the Labour Court of South Africa
[1]
2012 (1) SACR 567
(SCA) (15 March 2011) at para 17.
[2]
(2014) 35 ILJ 2399 (LAC); See also Seatlholo and Others v Chemical
Energy Paper Printing Wood and Allied Workers Union and Others
(2016) 37 ILJ 1485 (LC).