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[2018] ZALCJHB 407
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Hleza v Tsogo Sun Casino Proprietary Limited t/a Montecasino (JR291/16) [2018] ZALCJHB 407 (7 December 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case No:
JR291/16
In the matter
between:
NONHLANHLA
HLEZA
APPLICANT
and
TSOGO SUN CASINO
PROPRIETARY
RESPONDENT
LIMITED t/a
MONTECASINO
Decided: In
Chambers
Delivered: 7
December 2018
JUDGMENT
– APPLICATION FOR LEAVE TO APPEAL
SEDILE, AJ
[1] This is an
application against the judgment of this Court handed down on 24
August 2018, in terms of which the Court dismissed
the applicant’s
application to review and set aside an arbitration award issued by
the Commission for Conciliation, Mediation
and Arbitration (CCMA).
The application is opposed by the respondent. The applicant filed
this application on the 30 October 2018
outside the 10 days’
time limit applicable in terms of Rule 30(3A) of the rules of this
Court. The delay is almost ten weeks
and the applicant had filed an
application for condonation for the late filing.
[2] The principles
applicable where leave to appeal is sought 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 (SCA) 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
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 by the applicant. 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 by 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
had regard to the requirements of law and fairness in regard to an
award of costs, and hold the view that cost
order is warranted in
this case.
[7] Accordingly, the
following order is made;
Order
1. Condonation for
the late filing of the application for leave to appeal is denied.
2. The application
for leave to appeal is dismissed.
3. The applicant is
ordered to pay costs.
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)