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[2019] ZALCJHB 159
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South African Police Service v Solidarity obo Conradie and Others (JR175/17; JR200/17) [2019] ZALCJHB 159; (2019) 40 ILJ 1849 (LC) (28 June 2019)
IN THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case no: JR 175/17 &
JR 200/17
In the matter between:
SOUTH AFRICAN POLICE
SERVICE Applicant
and
SOLIDARITY OBO
CONRADIE AND 180 OTHERS First
Respondent
COMMISSION FOR
CONCILIATION
MEDIATION AND
ARBITRATION Second
Respondent
L DU PLESSIS
N.O
Third
Respondent
Decided:
In Chambers
Delivered:
28 June 2019
JUDGMENT- APPLICATION
FOR LEAVE TO APPEAL
MAHOSI.
J
[1]
This is an opposed application for leave to appeal against the whole
judgment of this
Court handed down on 15 March 2019 in terms of which
the Court dismissed the review application.
[2]
The applicant brought this application on the grounds that the Court
erred in law
by:
2.1
Holding that “
the date of dispute or alleged act or omission
of discrimination should be taken as the date upon which the
grievance remained unresolved
and the certificate issued
.”
2.2
Holding that if internal grievance processes are not exhausted “
this
would mean that an employee would be required to refer a dispute
within 6 months even though such employee would not have exhausted
the internal dispute resolution process.”
2.3
Holding that any contrary interpretation of section 10 (2) read with
sections 10 (3) and
10 (4) of the Employment Equity Act
[1]
(EEA) “
could
not be supportive of the spirit, purport and objects of the
Constitution of the Republic of South Africa
.”
2.4
Holding that when regard is had to “
the objective facts
before the commissioner and the applicable law, jurisdictional facts
necessary for the CCMA to be vested with
relevant jurisdiction
existed
.”
2.5
Incorrectly interpreting section 10 of the EEA.
2.6
Failing to apply the test laid down in the judgment of
SABC
v CCMA
[2]
to the facts in this matter.
[3]
In opposing this application, the first respondent submitted that the
interpretation
afforded to section 10 of the EEA by the applicant not
only limits the rights of employees, but amounts to a restrictive
interpretation,
which does not support the spirit, purport and
objects of the Constitution of the Republic of South Africa, nor the
purpose of
the EEA.
[4]
The first respondent submitted that the applicant failed to explain
the basis on which
the relevant employees would be entitled to simply
ignore the internal processes given that the grievance procedure is
embodied
in a collective agreement.
[5]
In determining whether to grant an application for leave to appeal,
the traditional
test is whether there is a reasonable prospect that
another court may come to a different conclusion.
[3]
In terms of section 166(1) of the Labour Relations Act (LRA),
[4]
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,
[5]
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.’
[6]
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.’
[7]
In
Martin
and East (Pty) Ltd v National Union of Mineworkers and Others,
[6]
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 and in 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.’
[7]
[8]
Having had regard to the applicant’s
submissions
, the Court is not persuaded
that there are reasonable prospects that the LAC could come to a
different conclusion. With regard
to costs, I am of the view that the
requirements of law and fairness dictate that there should be no
order as to costs.
[9]
Accordingly, the following order is made:
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]
Act
55 of 1998.
[2]
[2010]
3 BLLR 251 (LAC).
[3]
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.
[4]
Act
66 of 1995 as amended.
[5]
Act
10 of 2013.
[6]
(2014)
35 ILJ 2399 (LAC).
[7]
At
2405-2406.