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[2019] ZALCJHB 196
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Moses Kotane Local Municipality v Mokonyama NO and Another (JR2324/15) [2019] ZALCJHB 196 (14 August 2019)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case
no: JR 2324/15
In
the matter between:
MOSES
KOTANE LOCAL
MUNICIPALITY
Applicant
And
OBADIA
MOKONYAMA
N.O
First Respondent
TSHOLOFELO
MOLOI
Second Respondent
Decided:
In Chambers
Delivered:
14 August 2019
JUDGMENT:
APPLICATION FOR LEAVE TO APPEAL
HUTCHINSON,
AJ
Introduction
[1]
The Second Respondent seeks leave to appeal against the judgment,
handed down on 8 February 2018, in terms of which I reviewed and set
aside the sanction imposed by the First Respondent.
[2]
The Court was subsequently informed that after launching the
application
for leave to appeal, the Second Respondent referred an
alleged unfair dismissal dispute to the Commission for Conciliation,
Mediation
and Arbitration (CCMA) and further that the matter was
arbitrated by Commissioner Hambidge. In light of this information,
the Court
assumed that the Second Respondent had abandoned her
appeal.
[3]
On 14 July 2019, I was referred to a letter that was written to the
Court by the Second Respondent dated 28 November 2018. The letter
reads in part as follows:
‘
4.
I have perused the court file and found a note alleging that I have
approached the
CCMA and there was no need for the Honourable Judge to
deal with my matter. That allegation is not true and is misleading.
The
Leave to Appeal Application lodged still stand, it has not been
withdrawn and it must be dealt with.
5.
I request that my Leave to Appeal Application be referred to the
Honourable Judge
for it to be considered and finalization.’
Grounds
of Appeal
[4]
The applicant contends that the approach adopted by the Court in
reviewing the findings of the First Respondent was akin to an appeal
and not a review. The clear and convincing standard of proof
is
inapplicable to review applications. The proper approach is set out
in
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others.
[1]
[5]
Further, she contends that the appeal involves an important question
of law namely, what standards of proof apply and that the matter is
of public interest.
Evaluation
[6]
Having regard to the Second Respondent’s submissions, I am
not
persuaded that there are reasonable prospects of a successful appeal.
The evidence adduced against the Second Respondent demonstrated
a
high probability that she was guilty of unethical conduct and that
the sanction of dismissal was justified. The findings of the
chairperson of the disciplinary enquiry to the contrary, were
unreasonable and irrational. As such, I am of the view that this
application is without merit and must be dismissed.
[7]
In the circumstances, I make the following order:
Order
1.
The
application for leave to appeal is dismissed.
__________________
Hutchinson AJ
Acting
Judge of the Labour Court of South Africa
[1]
[2007] 12 BLLR 1097
(CC).