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[2019] ZALCJHB 124
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National Education Health and Allied Workers Union (NEHAWU) obo Dladla and Others v Metrofile (Pty) Ltd and Others (JS382/2018) [2019] ZALCJHB 124 (28 May 2019)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Case
No: JS 382/2018
In
the matter between:
NATIONAL
EDUCATION HEALTH AND
ALLIED
WORKERS UNION (NEHAWU)
OBO
SECOND
TO SEVENTEENTH
APPLICANTS First
Applicant
BONGANI
DLADLA Second
Applicant
CATHARINE
MOLEFE Third
Applicant
HLENGIWE
BUTHELEZI Fourth
Applicant
SONGEZE
JIYA Fifth
Applicant
GLADYS
MAMATSHELE Sixth
Applicant
MATHLODI
MASIPA Seventh
Applicant
LESIBA
JIMMY
MOGALE Eighth
Applicant
BONGA
GEORGE
DLADLA Ninth
Applicant
JOSEPH
DIPUO Tenth
Applicant
CADWELL
MAKHALE Eleventh
Applicant
LUCKY
MPOFU Twelfth
Applicant
LESETJA
THOMAS
LEDIGA Thirteenth
Applicant
DUDU
VERONICA
MBULI Fourteenth
Applicant
DORAH
MALEBYE Fifteenth
Applicant
AUDREY
KITIERENG
NOGE Sixteenth
Applicant
KEDIEMETSE
ANNA
ABRAHAMS
Seventeenth
Applicant
and
METROFILE
(PTY)
LTD First
Respondent
INFOVAULT
(PTY)
LTD Second
Respondent
(Registration
No: 2002/021025/07)
DISCOVERY
(PTY)
LTD Third
Respondent
(Registration
No: 1997/013480/07)
ZAHEER
CASSIM
N.O. Fourth
Respondent
Decided
:
In chambers
Delivered:
28 May 2019
JUDGMENT: APPLICATION
FOR LEAVE TO APPEAL
NIEUWOUDT,
AJ
[1]
This is an opposed application for leave to appeal against the
judgment of this Court that was handed down on 8 March 2019.
[2]
The application for leave to appeal raised the following issues:
2.1 The Court erred in
considering irrelevant facts, which created a reasonable apprehension
of bias.
2.2 The Court erred in
finding that the explanation for the delay for the period 10 January
2018 to 11 April 2018 was woefully inadequate.
2.3 The Court erred in
finding that during the period 10 January 2018 to 11 April 2018,
there was inactivity on the part of the
applicants.
[3]
The applicants’ submissions significantly added to issues that
were raised in the application for leave to appeal.
[4]
The applicants submitted that it would be appropriate for the matter
to be heard in open court due to the number of applicants
in the
matter and the issues raised by it. The Court considered this
submission, but is of the view that oral argument is not justified.
Accordingly, the Court deals with the matter on the basis of the
written submissions.
The test for leave to
appeal
[5]
In
Seathlolo
and Others v Chemical Energy Paper Printing Wood and Allied Workers
Union and Others
[1]
this Court held as follows:
“
The test to be
applied in an application such as the present is that referred to in
s 17
of the
Superior Courts Act 10 of 2013
.
Section 17(1)
provides:
'Leave to appeal may only
be given where the judge or judges concerned are of the opinion that
—
(a)
(i) the appeal would have a reasonable prospect of success; or
(ii)
there is some other compelling reason why the appeal should be heard,
including conflicting judgments on the matter under consideration;
(b)
the decision sought on appeal does not fall within the ambit of
section 16(2)(a)
; and
(c)
where the decision sought to be appealed does not dispose of all the
issues in the case, the appeal would lead to a just and
prompt
resolution of the real issues between the parties.”
[6]
The Court
then continued
[2]
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
s 17(1)(a)(i)
is 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 &
others v Crocodile Valley Citrus Co (Pty)
Ltd & 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 & East (Pty) Ltd v National Union of Mineworkers &
others
(2014) 35 ILJ 2399 (LAC), and also
Kruger v S
2014
(1) SACR I 369 (SCA) and the ruling by Steenkamp J in
Oasys
Innovations (Pty) Ltd v Henning & another
(C536/15 6 November
2015).”
[7]
This
approach was followed in
Sepheka
v Du Pont Pioneer (Pty) Ltd
[3]
and the Court considers it bounding on it.
The
nature of the decision
[8]
The applicants do not deal with this aspect in either their
application for leave to appeal or their submissions.
[9]
In
Coates
Brothers Ltd v Shanker and Others
[4]
the Labour Appeal Court (LAC) dealt with an appeal against a decision
by the Labour Court to grant condonation, albeit in slightly
unusual
circumstances. The same test would apply to the refusal of
condonation. The LAC held the following
[5]
:
“
I have referred in
para [3] above to the case of National Union of Metalworkers of
SA
& others v Fibre Flair CC
[6]
,
in which were summarized the relevant principles with regard to the
interference with a discretion which is to be judicially exercised.
An appellant must show, in an appeal from a decision in a lower
court, that the court a quo 'acted capriciously, or acted upon
a
wrong principle, or in a biased manner, or for insubstantial reasons,
or committed a misdirection or an irregularity, or exercised
its
discretion improperly or unfairly'. Mr Watt-Pringle conceded that the
only basis upon which he could argue that the discretion
of the court
a quo could be interfered with was that of a misdirection. This was
confined to the following: did either (i) the
court a quo's error
with regard to the lack of explanation by the employer for its stance
on the absence of the employee's signature
or (ii) the court a quo's
possible error with regard to the evaluation of and weight given to
the prospects of success, amount
to a misdirection which would
warrant interference?”
[10]
The applicants have not in either the application for leave to appeal
or their submissions, directly or indirectly, contended
that this
Court has acted in a manner that would satisfy the test set out
above. This is fatal to the application for leave to
appeal and
should be the end of the matter.
Allegation
of Bias
[11]
The applicants contended in the application for leave to appeal,
although this is not repeated in the submissions filed on
their
behalf, that there is a reasonable apprehension that this Court was
biased.
[12]
Irrespective of the merits of the application, this contention cannot
be left unanswered.
[13]
The contention is based on the fact that the Court dealt with an
aspect that was not raised in the affidavits relevant to the
application for leave to appeal. It is correct that the Court
mentioned the fact that there was an issue about which of the
applicants
were included in the referral to the Commission for
Conciliation, Mediation and Arbitration (CCMA). However, the Court
immediately
thereafter said that this aspect will not be dealt with
at condonation stage. The Court perused the whole file prior to
hearing
the condonation application. It is this fact that caused the
Court to enquire, as stated in para 21 of the judgment, whether it
could have regard to material that did not form part of the
condonation application. How this could lead to a reasonable
apprehension
of bias is totally unclear.
Costs
[14]
The first respondent submitted that the application should be
dismissed with costs. However, for the same reason that costs
were
not awarded in the condonation application, it ought not to be
awarded now.
[15]
In the premises, I make the following order:
Order:
1. The application for
leave to appeal is dismissed.
2. There is no order as
to costs.
_______________________
H
Nieuwoudt
Acting
Judge of the Labour Court of South Africa
[1]
[2016] 37
ILJ
1485
(LC) at para 2
[2]
Ibid
at para 3.
[3]
[2019] 40
ILJ
613 (LC).
[4]
[2003] 24
ILJ
2284
(LAC).
[5]
at para 5.
[6]
[2000] 21
ILJ
1079 (LAC).