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[2018] ZALCJHB 419
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Jijana v Commission for Conciliation, Mediation and Arbitration and Others (JR2049/2015) [2018] ZALCJHB 419 (18 December 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
No: JR2049/2015
In
the matter between:
NTOMBIZODWA
PORTIA JIJANA
Applicant
and
COMMISSION
FOR CONCILIATION, MEDIATION
AND
ARBITRATION
First Respondent
COMMISSIONER
WILLEM KOEKEMOER
Second Respondent
TELKOM
SA SOC LTD
Third
Respondent
Decided
in Chambers
Delivered:
18 December 2018
JUDGMENT
– LEAVE TO APPEAL
TLHOTLHALEMAJE,
J:
[1]
The applicant’s application to review and set aside the
arbitration award issued by the second respondent was dismissed
in
terms of a judgment and order delivered on 28 August 2018.
An application for leave to appeal followed on 18 September 2018.
That application is opposed by the third respondent.
[2]
In her submissions, the applicant’s contention is that the
judgment is appealable on a variety of grounds including that
the
Court erred or misdirected itself on various fronts. I do not deem it
necessary to burden this judgment with a repeat of the
full
submissions made by the parties in respect of this application.
[3]
The test applicable in applications for leave to appeal is trite. It
is
whether there is a reasonable prospect that
another court (in this case, the Labour Appeal Court), presented with
the same facts,
may come to a different conclusion.
[4]
The
provisions of Section 17 of the Superior Court Act
Act
10 of 2013,
which
has equal application in this Court, regulates instances in which the
appeal may be granted
[1]
.
Equally, the Labour Appeal Court has cautioned this Court in
Martin
& East (Pty) Ltd v National Union of Mineworkers and Others
[2]
that
a
balance between expeditious resolution of a dispute and the rights of
the party which has lost ought to be balanced is needed,
as is an
assessment of whether 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 raised in the leave to appeal
[3]
.
[5]
In
a nutshell, an application for leave to appeal ought not be easily
granted. This approach has been reinforced by the interpretation
of
section 17(1) of the Superior Courts Act
[4]
,
which as correctly pointed out on behalf of the third respondent,
raises the threshold in granting leave to appeal.
[6]
I have had regard to the submissions made
on behalf of the applicant in seeking leave to appeal and the
opposition in that regard.
I am satisfied that upon a reflection of
my judgment, the issues raised in the submissions mainly pertain to
factual disputes that
were adequately dealt with in the judgment, and
to which the third respondent had also responded. The application for
leave to
appeal does not raise any novel issues or any contentious or
legitimate points of law which might deserve the attention of the
Labour Appeal Court.
[7]
In the light of the above, I am not
satisfied that there are reasonable prospects that the factual matrix
in this matter could receive
any different treatment from the Labour
Appeal Court, and it follows that the application should fail.
[8]
Accordingly, the following order is made;
Order:
1.
The applicant’s application for leave to appeal is dismissed.
2.
There is no order as to costs
E Tlhotlhalemaje
Judge
of the Labour Court of South Africa
[1]
Section
17(1) provides:
‘
(1)
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.’
[2]
(2014) 35 ILJ 2399 (LAC) at 2405-2406.
[3]
See
also
Kruger
v S 2014 (1) SACR 369 (SCA)
[4]
See
The
Mont Chevaux Trust v Tina Goosen and 18 others
2014 JDR 2325 (LCC) at para 6;
Mgezeni
Gasbat Nxumalo v the National Bargaining Council for the Chemical
Industry (NBCCI) and Others
JR1170 /2013 unreported;
Nannen
and Others vs Momentum and Others
(6796/05, 2275/05) (2017] ZAGPPHC 433 (14 June 2017)