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[2019] ZALCJHB 130
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APCAN Risk Management v DETAWU obo Rankankane and Others (JR399/18) [2019] ZALCJHB 130 (7 June 2019)
THE
LABOUR COURT OF SOUTH AFRICA,
JOHANNESBURG
Not
Reportable
Case
no: JR339/18
In
the matter between:
APCAN
RISK MANAGEMENT
Applicant
and
DETAWU
OBO RANKANKANE AND 3 OTHERS First
Respondent
DONALD
KGALAKE NKADIMENG
Second Respondent
COMMISSION
FOR CONCILIATION
MEDIATION
AND ARBITRATION HELD AT POLOKWANE
Third Respondent
Decided:
In chambers
Delivered:
07 June 2019
JUDGEMENT:
APPLICATION FOR LEAVE TO APPEAL
MALAN. AJ
Introduction
[1]
This is an unopposed application for leave
to appeal against a judgment of this Court handed down on 8 February
2019.
[2]
The
Superior Courts Act
[1]
has, in
section 17 thereof, defined the test to be applied in deciding
whether to grant leave to appeal:
“
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 just and prompt
resolution of the real issues between the parties.”
[3]
The test to be applied is therefore a form
of merit assessment in relation to the prospects of success that the
prospective appellant
would enjoy in appeal proceedings. For purposes
of its assessment in this regard the Court may not rely on any
preconceived notions
of the merits arising from its original
assessment of the application as it served before the Court but must
approach the matter
from a fresh perspective and with the sole intent
of assessing the prospects that a different court may reasonably come
to a different
conclusion on the matter.
[4]
The Court has given due consideration to
the various arguments raised in support of the application for leave
to appeal.
[5]
The Court is persuaded that the approach
adopted by the Court in relation to the judgment that is the subject
matter of this application
is not beyond challenge and that a degree
of legitimate controversy may exist in relation to the judgment. The
appeal would therefore
have reasonable prospects of success. The
Court is therefore satisfied that the application for leave to appeal
should be granted
and orders as follows:
Order
1.
The
application for leave to appeal is granted.
2.
There
is no order as to costs.
__________________
G. F. Malan
Acting
Judge of the Labour Court of South Africa
[1]
Act
10 of 2013.