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[2019] ZALCJHB 207
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Majola v MEC for Roads and Transport: Gauteng Provincial Department (J2797/17) [2019] ZALCJHB 207 (30 April 2019)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case
no: J 2797/17
BONGA
BALDWIN MAJOLA
Applicant
and
MEC
FOR ROADS AND TRANSPORT: GAUTENG PROVINCIAL DEPARTMENT: MR ISMAIL
VADI N.O
Respondent
Decided:
In
Chambers
Delivered:
30 April 2019
JUDGMENT APPLICATION
FOR LEAVE TO APPEAL
PRINSLOO, J
Introduction
[1]
On 16 January 2019, this Court handed down
judgment in terms of which the Applicant’s case was dismissed
with no order as
to costs. The Applicant subsequently filed an
application for leave to appeal against the whole of the judgment and
order of this
Court.
[2]
The Applicant also filed an application for
condonation for the late filing of his submissions made in terms of
Rule 30(3A) of the
Labour Court Rules. I have considered the
application for condonation and as the delay is minimal and the
explanation tendered
acceptable, I am inclined to grant condonation
for the late filing of the Applicant’s submissions.
[3]
The application for leave to appeal is
opposed.
[4]
Both parties have filed submissions in
respect of the leave to appeal. I have considered the grounds for
appeal as well as the submissions
made in support and in opposition
thereof and I do not intend to repeat those herein.
The
test for leave to appeal
[5]
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
[1]
(LRA) which provides that any party to any proceedings before the
Labour Court may apply for leave to appeal to the Labour Appeal
Court
(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
[2]
.
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]
Appeals
should be limited to matters where there is a reasonable prospect
that the factual matrix could receive a different treatment
or where
there is some legitimate dispute on the law. In
Seatlholo
and Others v Chemical Energy Paper Printing Wood and Allied Workers
Union and Others
[3]
this Court confirmed that the test applicable in applications for
leave to appeal is stringent and held as follows:
‘
The
traditional formulation of the test that is applicable in an
application such as the present requires the court to determine
whether there is a reasonable prospect that another court may come to
a different conclusion to that reached in the judgment that
is sought
to be taken on appeal. As the respondents observe, the use of the
word “would” in s17(1)(a)(i) are indicative
of a raising
of the threshold since previously, all that was required for the
applicant to demonstrate was that there was a reasonable
prospect
that another court
might
come to a different conclusion (see
Daantjie
Community and others v Crocodile Valley Citrus Company (Pty) Ltd and
another
(75/2008)
[2015] ZALCC 7
(28
July 2015). Further, this is not a test to be applied lightly –
the Labour Appeal Court has recently had occasion
to observe that
this court ought to be cautious when leave to appeal is granted, as
should the Labour Appeal Court when petitions
are granted. The
statutory imperative of the expeditious resolution of labour disputes
necessarily requires that appeals be limited
to those matters in
which there is a reasonable prospect that the factual matrix could
receive a different treatment or where there
is some legitimate
dispute on the law (See the judgment by Davis JA in
Martin
and East (Pty) Ltd v NUM
(2014) 35
ILJ
2399 (LAC), and also
Kruger v S
2014 (1) SACR 369
(SCA) and the ruling by Steenkamp J in
Oasys
Innovations (Pty) Ltd v Henning and another
(C 536/15, 6 November 2015).’
[7]
In
deciding this application for leave to appeal I am also guided by the
dicta
of
the Supreme Court of Appeal where it was held in
Dexgroup
(Pty) Ltd v Trustco Group International (Pty) Ltd and Others
[4]
that
:
‘
The
need to obtain leave to appeal is a valuable tool in ensuring that
scarce judicial resources are not spent on appeals that lack
merit.
It should in this case have been deployed by refusing leave to
appeal.’
Grounds
for leave to appeal
[8]
The Applicant has raised a number of
grounds for leave to appeal. I have read and considered those and in
my view, there is no merit
in any of the grounds. I do not intend to
repeat or address all the grounds for appeal raised by the Applicant
but to illustrate
that the application for leave to appeal is without
merit, I will deal with one of the grounds for leave to appeal in
detail.
[9]
I
found
inter
alia,
that section 17 of the Public Service Act
[5]
(PSA) empowers the Respondent to dismiss an employee on account of
incapacity, operational requirements or misconduct wherefore
a
decision to dismiss an employee on any of the aforesaid grounds
cannot be invalid or unlawful, as it is authorised by law. The
power
to dismiss, should however be exercised in accordance with the
provisions of the Labour Relations Act
[6]
(LRA). I found that the Applicant’s remedy was in the LRA.
[10]
The Applicant’s ground for leave to
appeal is
inter alia,
that this Court erred in finding that the Respondent’s decision
to dismiss him was not unlawful and further erred in finding
that his
remedy is to be found in the LRA.
[11]
In opposition, the Respondent submitted
that the decision of this Court and reasons as set out in the
judgment, accord with other
decisions where public sector employees
seek to challenge their dismissal in the Labour Court. This is no
more than an unfair dismissal
dispute and the Applicant’s
remedy is indeed in the LRA.
[12]
I reiterate what I have already alluded to in the judgment, with
specific reference to
Steenkamp
and Others v Edcon Limited
[7]
where
it was held that:
‘
The
LRA created special rights and obligations that did not exist at
common law. One right is every employee's right not to be unfairly
dismissed which is provided for in s 185. The LRA also created
principles applicable to such rights, special processes and fora
for
the enforcement of those rights. The requirement for the referral of
dismissal disputes to conciliation is one of the processes
created by
the LRA. The CCMA, bargaining councils and the Labour Court are some
of the fora. The principles, processes, procedures
and fora were
specially created for the enforcement of the special rights and
obligations created in the LRA. Indeed, the LRA even
provides for
special remedies for the enforcement of those rights and obligations.
The special remedies include interdicts, reinstatement
and the award
of compensation in appropriate cases. These special rights,
obligations, principles, processes, procedures, fora
and remedies
constitute a special LRA dispensation.’
[12]
In respect of
‘unlawfulness’, the Constitutional Court held that there
is no provision in the LRA for a right not to
be dismissed unlawfully
and no provision is made for any dispute procedures or processes for
the enforcement of such a right.
[13]
I have dealt fully in detail with the
relevant issues in my judgment and there is no need to repeat what is
stated therein for purposes
of this judgment. Grounds for leave to
appeal and submissions are meant to persuade me that there are
reasonable prospects that
another court would arrive at a different
decision.
In casu,
I
am not persuaded that there is a case made out for leave to appeal to
be granted and the LAC should not be burdened with an appeal
that
lacks merit.
[14]
In applying the relevant principles, the
grounds for leave to appeal as submitted by the Applicant fall
hopelessly short off the
mark of reasonable prospects of success. I
am also not convinced that any novel issues were raised that deserve
the attention of
the LAC.
[16]
In the result I make the following order:
Order
The
late filing of the Applicant’s submissions in terms of Rule
30(3A) of the Rules of the Labour Court is condoned;
The
application for leave to appeal is dismissed;
There
is no order as to costs.
_____________________
Connie Prinsloo
Judge
of the Labour Court of South Africa
[1]
Act
66 of 1995 as amended.
[2]
See:
Woolworths
Ltd v Matthews
[1999]
3 BLLR 288 (LC).
[3]
(2016)
37 ILJ 1485 (LC).
[4]
2013
(6) SA 520
(SCA);
[2014] 1 All SA 375
(SCA) at para 24.
[5]
Act
103 of 1994, as amended.
[6]
Act
66 of 1995 as amended.
[7]
(2016)
37 ILJ 564 (CC) para 105.