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[2019] ZALCJHB 22
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Poya v Railway Safety Regulator and Others (J 3521/2018) [2019] ZALCJHB 22 (22 February 2019)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
reportable
Case
no: J 3521/2018
In
the matter between:
NKULULEKO
POYA
Applicant
and
RAILWAY
SAFETY REGULATOR
DR
ZETHU QUNTA N.O
First
Respondent
Second
Respondent
BOARD OF RAILWAY
SAFETY REGULATOR
Third
Respondent
MINISTER OF
TRANSPORT
Fourth Respondent
Decided:
In Chambers
Delivered:
22 February 2019
JUDGMENT-APPLICATION
FOR LEAVE TO APPEAL
PRINSLOO,
J
Introduction
[1]
The Applicant approached this Court on an urgent basis, seeking an
order
to declare disciplinary proceedings invalid and interdicting
the Respondents from proceeding with a disciplinary enquiry against
him. In a judgment handed down on 6 November 2018, I dismissed the
Applicant’s application with costs. It is against the
whole of
the judgment and orders of this Court that the Applicant seeks leave
to appeal.
[2]
The application was filed some two days’ late and the Applicant
has sought condonation for such late filing. The delay is not
inordinate and I am satisfied with explanation tendered by the
Applicant
and therefore I grant condonation. I turn now to decide the
application for leave to appeal.
[3]
The application is opposed by the First, Third and Fourth Respondents
and they have filed submissions in respect of their opposition. I do
not intend to repeat all of the submissions made by the parties,
suffice to mention that I have considered them in determining this
application and reference to any part, will be made to the extent
that it becomes necessary hereunder.
Grounds
for appeal
[4]
The
Applicant raised a number of grounds for leave to appeal. I have had
regard to these grounds and from the outset it is clear
that there is
no merit in them as they are to a large extent, a repetition of the
arguments made before this Court at the hearing
of the urgent
application. The main contention that the Court erred in concluding
that the Board has the power to discipline the
Applicant. According
to the Applicant, the power to discipline him lies in the exclusive
domain of the Minister of Transport. Heavy
reliance is placed on the
interpretation of the provisions of the National Railway Regulator
Act
[1]
(RSR Act), particularly
section (4) thereof. This ground of appeal is misplaced: This Court
was not required to interpret the provisions
of the RSR Act, as is
clear from paragraph 26 of my judgment.
The
test for leave to appeal
[5]
The
test to be applied in terms of s 17(1) of the Superior Courts Act
[2]
is whether the applicant would have reasonable prospects of success
or whether there is some other compelling reason why an appeal
should
be heard. There is a litany of judgments which state
s
that there is no automatic right of appeal against a judgment of the
Labour Court. This much is also clear from section 166(1)
of the
Labour Relations Act
[3]
(LRA) which provides that any party to any proceedings before the
Labour Court may apply to the Labour Court for leave to appeal
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 the appeal will succeed
[4]
.
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.
[6]
In
S
v Smith
[5]
the Court held 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
success on appeal and that those prospects are not
remote but have a
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 on appeal’.
[7]
In
Martin
and East (Pty) Ltd v National Union of Mineworkers and Others,
[6]
the
Labour Appeal Court (LAC) made it clear that leave to appeal is not
simply there for the taking, and that this Court must be
cautious in
granting leave to appeal and in assessing the requirement of the
prospect of success. The Court held:
‘…
The
Labour
Relations Act was
designed to ensure an expeditious resolution of industrial
disputes. This means that courts, particularly courts in the
position
of the court
a
quo,
need to be cautious when leave to appeal is granted, as should this
Court when petitions are granted.
[8]
I am not persuaded that the Applicant has made out a case for the
granting
of leave to appeal. I am further not persuaded that there
are reasonable prospects that the LAC will arrive at a conclusion
different
from that arrived at by this Court. It follows then that
this application must fail.
[9]
In the premises, I make the following order:
Order
1.
The application for leave to appeal is
dismissed.
2.
I make no order as to costs.
__________________
Connie
Prinsloo
Judge
of the Labour Court of South Africa
[1]
Act
16 of 2002.
[2]
Act
10 of 2013.
[3]
Act
66
of 1995 as amended.
[4]
See
Woolworths
Ltd v Matthews
[1999]
3 BLLR 288 (LC).
[5]
2012 (1) SACR 567
(SCA) at para 7.
[6]
(2014) 35 ILJ 2399 (LAC).