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[2019] ZALCJHB 126
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Sol Plaatje Municipality v South African Local Government Bargaining Council and Others (PR192/16) [2019] ZALCJHB 126 (31 May 2019)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case no: PR 192/16
In the matter between:
SOL
PLAATJE
MUNICIPALITY
Applicant
and
SOUTH AFRICAN LOCAL
GOVERNMENT
BARGAINING
COUNCIL First
Respondent
COMMISSIONER MOLOI
N.O
Second
Respondent
COLLIN BERESFORD
BOTHA Third
Respondent
LIONEL
FRITZ Fourth
Respondent
Decided: In Chambers
Delivered: 31 May 2019
JUDGMENT – LEAVE
TO APPEAL
MAHOSI J
[1] This is an unopposed
application for leave to appeal against the whole judgment of this
Honourable Court handed down on 19 February
2019 in terms of which
the Court dismissed the applicant’s review application.
[2] The applicant brought
this application on the grounds that the Court erred by:
2.1 Not finding that the
composition of the charges, given the nature and import into
employment law, did not constitute a barrier
to deciding the real
issue complained of during the domestic proceedings and the
arbitration before the second respondent.
2.1 Failing to attach
proportionate weight to the uncontested evidence presented by the
witnesses who testified on behalf of the
applicant during the
arbitration proceedings.
2.3 Finding that the
nature of the evidence adduced during the domestic proceedings
effectively amended the charges.
2.4 Finding that the
arbitrator was reasonable in his assessment of the evidence before
him and that he did not misconceive the
nature of the dispute that he
was called upon to determine.
2.5 Failing to consider
the seriousness of the transgression taking into account the amount
of damage that resulted from the conduct
of the third respondent and
the confirmation by the second respondent that the second respondent
was not a credible witness.
[3]
The traditional test in determining whether to grant an application
for leave to appeal is whether there is a reasonable prospect
that
another court may come to a different conclusion.
[1]
In terms of section 166(1) of the Labour Relations Act (LRA),
[2]
a party to proceedings before the Labour Court, may apply to the
Labour Court for leave to appeal to the Labour Appeal Court (LAC)
against any final judgment or final order of the Labour Court.
Section 17 of the Superior Court Act,
[3]
which applies to the Labour Court, regulates instances in which the
appeal may be granted. Section 17(1) provides as follows:
‘
Leave
to appeal may only be given where the judge or judges 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 decisions 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
issue between the parties.’
[4] Section 16(2)(a) of
the Superior Court Act provides as follows:
‘
(i)
When at the hearing of the appeal the issues are of such a nature
that the decision sought will have no practical effect, the
appeal
may be dismissed on this ground alone.
(ii) save under
exceptional circumstances, the question whether the decision would
have no practical effect or result is to be determined
without
reference to any consideration of costs.’
[5]
In
Martin
and East (Pty) Ltd v National Union of Mineworkers and Others,
[4]
the 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 by assessing the requirement of the prospect of success. In
this case, the Court stated as follows:
‘…
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.
There
are two sets of interests to consider. There are the interests
of the parties such as appellant, namely who are entitled
to have
their rights vindicated, if there is a reasonable prospect that
another court might come to a different conclusion. There
are also
the rights of employees who land up in a legal “no-man’s-land”
and have to wait years for an appeal
(or two) to be prosecuted.
This
was a case which should have ended in the labour court. This
matter should not have come to this court. It stood
to be
resolved on its own facts. There is no novel point of law to be
determined nor did the Court
a quo
misinterpret existing law.
There was no incorrect application of the facts; in particular the
assessment of the factual justification
for the
dismissals/alternative sanctions.
I
would urge labour courts in future to take great care in ensuring a
balance between expeditious resolution of a dispute and the
rights of
the party which has lost. If there is a reasonable prospect that the
factual matrix could receive a different treatment
or there is a
legitimate dispute on the law that is different. But this kind
of case should not reappear continuously in
courts on appeal after
appeal, subverting a key purpose of the Act, namely the expeditious
resolution of labour disputes.’
[6] Having had regard to
the applicant’s submissions, I am not persuaded that there are
reasonable prospects of a successful
appeal. As such, I am of the
view that this application is without merit and must be dismissed.
[7]
With regard to costs, taking into account the requirements of law and
equity, I am of the view that this is a matter in which
there should
be no order as to costs.
[8] Accordingly, I make
the following order:
Order
1. The application for
leave to appeal is dismissed.
2. There is no order as
to costs.
__________________
D. Mahosi
Judge of the Labour Court
of South Africa
[1]
See
Karbochem
Sasolburg (A Division of Sentrachem Ltd) v Kriel and Others
(1999) 20 ILJ 2889 (LC) at 2890B;
Ngcobo
v Tente Casters (Pty) Ltd
(2002) 23 ILJ 1442 (LC) at 1443 para 2 and
Tsotetsi
v Stallion Security (Pty) Ltd
(2009) 30 ILJ 2802 (LC) at 2804 para 14.
[2]
Act
66 of 1995 as amended.
[3]
Act
10 of 2013.
[4]
(2014)
35 ILJ 2399 (LAC) at 2405-2406.