About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Cape Town Labour Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Cape Town Labour Court, Cape Town
>>
2018
>>
[2018] ZALCCT 45
|
|
Pamplin v Western Cape Education Department and Others (C1034/15) [2018] ZALCCT 45 (20 September 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
Not
Reportable
Case
no: C 1034/15
In
the matter between:
SHAUNA
PATRICIA
PAMPLIN Applicant
and
WESTERN
CAPE EDUCATION DEPARTMENT First
Respondent
EDUCATION
LABOUR RELATIONS COUNCIL
.
Second
Respondent
GAIL
McEWAN
N.O
Third
Respondent
HILTON
PALANYANDI Fourth
Respondent
Delivered:
20
September 2018
RULING
– APPLICATION FOR LEAVE TO APPEAL
TLHOTLHALEMAJE,
J:
[1]
Judgment
was delivered on 9 May 2015 in terms of which the award of
the third respondent (Commissioner) dated 13 October 2015
was reviewed and set aside, resulting in the matter being remitted
back to the second respondent (ELRC). In the arbitration award,
it
was found that the applicant (Pamplin) had failed to discharged her
onus it terms of the requirements of section 186(2) of the
Labour
Relations Act (LRA).
[1]
[2] The
first respondent on 28 May 2018 filed an application for
leave to appeal against this Court’s
judgment and order. The
application for leave to appeal together with the submissions filed
on 11 June 2018 only came to my attention
on 18 September 2019. The
application as at the writing of this ruling remained unopposed.
[3] The
facts leading to the dispute are sufficiently summarised in the
Commissioner’s award and the judgment
of this Court. The
contents of the judgment also speak for themselves and no purpose
would be served by repeating same. The first
respondent seeks leave
to appeal on a variety of grounds, including that;
3.1 The
conclusion by the Court (that there existed a positive duty on both
the Commissioner and the first
respondent to source the evidence of
the HOD and further that the drawing of an adverse inference by
Commissioner against the applicant
for not sourcing the evidence of
the HOD was unwarranted and thus amounted to a reviewable
irregularity) is in contrast with the
trite principle on review of
arbitration awards.
3.2 The
Court impermissibly resolved the matter by assessing the rationality
of the Commissioner’s
arbitration award thereby adopting a
process review
as opposed to the accepted standard of
assessing the totality of the evidence and considering whether the
outcome was reasonable
in the circumstances.
3.3 There
is no evidences from the record of the arbitration proceedings that
the Commissioner made an adverse
inference against the applicant [for
not calling the HOD as a witness] and further that the Court in its
judgment did not identify
those adverse inferences reached by the
Commissioner which justified the setting aside of the arbitration
award.
3.4 The
Court’s conclusion that the Commissioner’s failure to
subpoena the HOD and/or the failure
to caution the applicant of the
consequences of the failure to subpoena the HOD constituted a
reviewable irregularity is not supported
by this Court’s
previous jurisprudence which holds that commissioners are barred from
calling witnesses to assist a party
to discharge its burden of proof.
3.5 The
approach adopted by this Court in the first respondent’s view
has the potential of creating
perception of bias in favour of the
employee to the detriment of the employer.
3.6
The
approach of this Court that a Commissioner is permitted [in terms of
the provisions of section 138(1) read with section 142(2)
of the LRA]
to direct the proceedings is a misinterpretation of the decision in
Land
Bank v Nowosenetz N.O & Others.
[2]
[4]
The
principles applicable in a determination of applications for leave to
appeal are trite as further codified in the provisions
of section
17(1)(a)(i) and (ii) of the Superior Courts Act
[3]
.
In essence, an application for leave to appeal will succeed where
there are reasonable prospects of success on appeal or where
there
are other compelling reasons why the appeal must be constituted,
including but not limited to conflicting judgments on the
subject
issue.
[5]
The
test for reasonable prospect of success was explained
in
S
v Smith
[4]
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’.
[6] Having
reflected on my judgment, and also having had regard to the grounds
and the submissions relied upon
in seeking leave to appeal, I have
come to the conclusion that based on established legal principles, a
case of reasonable prospects
of success on appeal has not been made
out.
[7] In
the premises, the following order is made;
Order:
1. The
application for leave to appeal the judgment and order of this court
delivered on 9 May 2018
is dismissed.
E
Tlhotlhalemaje
Judge
of the Labour Court of South Africa
[1]
Act 66 of 1995 (as amended)
[2]
(2013) 34 ILJ 2608 (LC)
[3]
Act 10 of 2013
[4]
2012
(1) SACR 567
(SCA) (15 March 2011) at para 7