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[2018] ZALCCT 39
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Julies v Commission for Conciliation, Mediation and Arbitration and Others (C578/2016) [2018] ZALCCT 39 (12 December 2018)
THE
LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
Not
reportable
Case
no: C578/2016
In
the matter between:
BASIL
ALLEN JULIES
Applicant
and
THE
COMMISSION FOR CONCILIATION, MEDIATION
AND
ARBITRATION
First Respondent
MADELEINE
LOYSON
N.O
Second
Respondent
THE
UNIVERSITY OF THE WESTERN CAPE
Third Respondent
Decided:
In Chambers
Delivered:
12 December 2018
JUDGMENT-APPLICATION
FOR LEAVE TO APPEAL
PRINSLOO,
J
Introduction
[1]
The Applicant seeks leave
to appeal against the judgment of this Court, handed down on 13
September 2018, in terms of which the
Court dismissed the Applicant’s
review application with costs. The application is opposed by the
Third Respondent.
[2]
Both parties have filed
submissions in respect of the leave to appeal and I have considered
both submissions in determining this
application.
Grounds
for appeal
[3]
I have had regard to the
grounds of appeal raised by the Applicant and from the outset, I must
mention that there is no merit in
these grounds as they are to a
large extend, a repetition of the grounds raised in the review
application. By way of example, the
Applicant makes the following
averments:
3.1
The Court erred in not finding that the arbitrator committed a gross
irregularity in allowing the complainant, Dr Botha to give
evidence
remotely. According to the Applicant, this excluded him from the
proceedings thereby denying him of a right to a fair
hearing.
Therefore, the arbitrator made herself guilty of misconduct in
relation to her duties as an arbitrator and exceeded her
powers.
3.2
The Court erred in finding that the arbitrator acted reasonably in
the analysis of the evidence and thus rendered a reasonable
award.
The Applicant asserts that the Court ought to have found that the
arbitrator was biased against him and did not keep an
open mind
during the arbitration proceedings.
[4]
The gist of the Applicants complaint is that, had he been allowed to
sit during the complainant’s testimony, specifically,
during
her cross and re-examination, he would have been able to provide his
legal representative with instructions. This argument
has no merit, I
have dealt with this issue extensively in my judgment and as in the
review application, I cannot find any merit
as to how and to what
extend would the Applicant’s presence have resulted in a
different case being made out by his legal
representative. As already
pointed out in my judgment
[1]
,
the cross-examination of Dr Botha by the Applicant’s legal
representative covers 122 pages of the transcribed record. The
attack
on the arbitrator and subsequently this Court on this issue is
argumentum
ad hominem.
Furthermore,
there is nothing in the record and the Applicant offers nothing
logical to support the claim that the arbitrator was
biased against
him. This Court has had to read volumes of documents and consider
issues in the review application that were void
of merits and again
in this application, lengthy submissions are made, all of which lack
merit. In my view it will not be in the
interests of justice to
burden the Labour Appeal Court (LAC) with an equally meritless
appeal.
The
test for leave to appeal
[4]
It is
trite that there is no automatic right of appeal against a judgment
of the Labour Court. This much is clear from section 166(1)
of the
Labour Relations Act
[2]
(LRA)
which provides that any party to any proceedings before the Labour
Court may apply to the Labour Court for leave to appeal
to the LAC
against any final judgment or final order of the Labour Court. In
order to be entitled to leave to appeal, an applicant
in an
application for leave to appeal must satisfy this Court that there is
a reasonable prospect that another court could come
to a different
conclusion”
[3]
. The test
is not whether or not there is a possibility that another court could
come to a different conclusion, the test is whether
or not there is a
reasonable prospect that another court could come to a different
conclusion.
[5]
In
Westing
House Break & Equipment (Pty)Ltd v Bilger Engineering (Pty)
Ltd
[4]
the
Court reiterated the general principle that in order for an applicant
for leave to appeal to succeed, the applicant must demonstrate
that
it has a reasonable prospect of success on appeal. It was also stated
that an appeal should be allowed where the matter is
of great
importance or where the matter is of public importance or where the
Court is of the view that the decision might affect
other questions.
[5]
In
casu
,
the grounds as submitted by the Applicant fall hopelessly short off
the mark of reasonable prospects of success.
[6]
The tenet of the LRA, is
based on the requirement for expeditious resolution of labour
disputes. This is a case where the dispute
between the parties must
be brought to finality and the Applicant cannot be allowed to misuse
scarce judicial resources on a meritless
case where the result would
still be the same. This application has to fail.
[7]
In the premises, I make
the following order:
Order
1.
The
application for leave to appeal is dismissed with costs.
Connie
Prinsloo
Judge
of the Labour Court of South Africa
[1]
At para [34].
[2]
Act
66 of 1995
as amended.
[3]
See
Woolworths
Ltd v Matthews
[1999]
3 BLLR 288 (LC).
[4]
1986 (2) SA 555
(A).
[5]
See in this regard
Moller
v Keimoes School Committee and Another
[1911]
AD 585.