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[2018] ZALCCT 29
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Parliament of the Republic of South Africa v Commission for Conciliation Mediation and Arbitration and Others (C646/16) [2018] ZALCCT 29 (6 July 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
Not Reportable
Case no: C 646/16
In the matter between:
PARLIAMENT OF THE REPUBLIC OF
SOUTH
AFRICA
Applicant
and
COMMISSION FOR CONCILIATION
MEDIATION
AND
ARBITRATION
First
Respondent
ARTHI SINGH-BHOOPCHAND
N.O
Second
Respondent
S MOHAMED
N.O
Third
Respondent
CECILIA BRUMMER
N.O
Fourth
Respondent
JOYCE
NTULI
Fifth
Respondent
RESPONDENTS LISTED
IN ANNEXURE
“A”
Sixth
to further Respondents
Decided:
In chambers
Delivered: 6 July 2018
JUDGMENT: LEAVE TO APPEAL
TLHOTLHALEMAJE, J:
[1]
On 25 April 2018, this Court handed down a judgment in
terms of which the condonation ruling dated 15 February 2016
issued
under case number WECT 705-16 by the second respondent was reviewed
and set aside. The Court replaced the ruling with
an order dismissing
the application for condonation.
[2]
The effect of the dismissal of the application for condonation was
that the arbitration award issued by the fourth respondent
under the
same case number dated 2 September 2016 was also declared
null and void. In that arbitration award the fourth
respondent had
found that the applicant, the Parliament of the Republic of South
Africa (Parliament) had committed an unfair labour
practice by
failing to implement a purported decision of the then Acting
Secretary of Parliament to re-grade the fifth to further
respondents
(the Researchers) to a higher salary grade.
[3]
For the sake of convenience, the parties will be cited as they were
in the main review application. The Researchers have since
filed an
application for leave to appeal against the whole judgment and
paragraphs 2 and 3 of order of this Court. The application
for leave
to appeal remained unopposed as at the writing of this judgment.
[4]
Central to the grounds of
appeal is the date on which the unfair labour practice dispute arose
and whether the Researchers’
claim before the CCMA was premised
on a continuing act of unfair labour practice or on “a fixed
cause of action”. The
Researchers placed reliance on the
decision of the Labour Appeal Court (LAC) in
South
African Broadcasting Corporation Ltd v Commission for Conciliation,
Mediation and Arbitration and Others
[1]
for the proposition that an
unfair labour practice may consist of a single act and/or it may be
repetitive or continuous in nature
as in the current dispute, hence
there was no need for an application for condonation before the CCMA.
[5]
The Researchers further contend that if the Court had applied the
above principle, it would
not
have come to
a conclusion that the explanation proffered by the Researchers was
unsatisfactory and that the dispute before the
CCMA was out of time.
It is submitted that the Court would have otherwise reached a
conclusion that the claim was grounded on a
continuous act of unfair
labour practice, which Parliament continued to perpetrate.
[6]
The other grounds of appeal are ancillary in nature and I do
not deem it necessary to repeat them, save to mention that the
Researchers
hold the view that the Court erred in its assessment of
whether good cause was shown, or in its assessment of the second
respondent’s
ruling in respect of the requirements of good
cause. In this regard, it was submitted that;
6.1. The conclusion by the Court that
the reasons for delay were unsubstantiated and revealed a lack of
interest in the prosecution
of the dispute was not supported by the
undisputed correspondence between the parties which served as
evidence before the CCMA.
6.2. The Court failed to have regard
and give weight to the importance of the dispute, the interest of
justice and the Researchers’
prospects of success in the main
dispute.
6.3. Court disregarded the prejudice
to the Researchers if the non-compliance with the timeframes was not
condoned.
6.4. The Court unduly found the
balance of convenience in favour of Parliament on the basis that it
would have to allocate resources
in opposing the claim
notwithstanding that this was the only submission proffered by it in
respect to the issue of prejudice.
[7]
The test when
considering applications for leave to appeal is fairly trite. The
court must ask or enquire whether the applicant
has demonstrated that
there are reasonable prospects that another court (in this case, the
Labour Appeal Court (LAC)), would arrive
at a decision different to
that of the court
a quo
[2]
.
The
test
applicable in applications for leave to appeal is stringent
[3]
,
and it is trite that a
ppeals
should be limited to matters where there is a reasonable prospect
that the facts before the court
a
qou
could be treated differently by the appeal court, or where there are
novel disputes on the law raised in the main proceedings.
[8]
Having reflected upon my judgment and considered the grounds
upon which leave to appeal is sought and the submissions in that
regard,
I am satisfied that the judgment extensively dealt with these
grounds upon which leave to appeal is sought, the reasons why the
condonation application before the CCMA did not establish good cause,
and no purpose will be served by rehashing same in
this judgment.
[9]
Further, based upon the legal principles referred to above, I
am satisfied that the contention that
the matter
is of great importance or of public importance is indeed far-fetched,
and this appeal does not raise any novel or contentious
points of
law.
In my view therefore, there is no sound or rational basis
for a conclusion to be reached that there are reasonable prospects
that
the LAC would come to a different conclusion than the one
arrived at by this Court. In the result, the application for leave to
appeal stands to be dismissed.
Order:
1.
The application for leave to appeal is dismissed.
_____________________
E.
Tlhotlhalemaje
Judge
of the Labour Court of South Africa
[1]
[2009] ZALAC 13
; (2010) 31 ILJ 592 (LAC);
[2010] 3 BLLR 251
(LAC) (18
November 2009).
[2]
See
S v
Smith
2010 (1) SACR
at 576 (SCA), where it was held that;
‘
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 reasonable
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]
See
Seatlholo
and Others v Chemical Energy Paper Printing Wood and Allied Workers
Union and Others
(2016)
37 ILJ 1485 (LC)