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[2019] ZALCJHB 301
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NUMSA obo Malema and Others v Scaw Metals (Pty) Ltd and Others (JR772/17) [2019] ZALCJHB 301 (5 November 2019)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
No: JR772/17
In
the matter between:
NUMSA
obo Malema & 42 Others
Applicant
and
Scaw
Metals (Pty) Ltd
First
Respondent
Metal and Engineering
Industries Bargaining
Second Respondent
Council
Karen
Kleinot NO
Third Respondent
Heard:
In Chambers
Delivered:
05 November 2019
Summary:
Application for leave to appeal – Application dismissed.
JUDGEMENT
– APPLICATION FOR LEAVE TO APPEAL
MOOKI
AJ
1.
The
applicants seek leave to appeal the judgement and order by the Court.
The first respondent opposes the application.
2.
The applicants rely on the following
grounds for their relief:
2.1.
That the Court erred in fact and in law in
not taking into account that the law requires the commissioner both
to identify the issue
of inconsistency and to decide that issue,
taking into account that the applicants raised the issue of
consistency in their evidence.
2.2.
That the Court erred in fact and in law in
not taking into account that the commissioner failed to consider the
issue of appropriateness
of sanction given evidence before the
commissioner.
2.3.
That the Court erred in fact and in law
that the Court was not persuaded by the applicants’ complaint
on the issue of sanction,
given evidence by the applicants in the
form of transcribed records that was presented to the court.
3.
The applicants’ submissions in
support of the application for leave to appeal did not address the
grounds referred to in paragraphs
2.2 to 2.3. This is apart from the
fact that these grounds are not supported by the record.
4.
The applicants submit that the commissioner
identified the issue of consistency but failed to determine that
issue, with the result
that the commissioner failed to execute her
duties; rendering the award unlawful.
5.
The
submission lacks merit and ignores the totality of the award,
including findings by the commissioner in paragraph 72 of the
award.
6.
The applicants also submitted that leave to
appeal ought to be granted because the Court did not take into
account that the applicants
complained that the commissioner didn’t
consider their personal circumstances once the commissioner found
them guilty.
7.
The submission is not faithful to the
award. The commissioner addressed the point in the award; including
remarking that the applicants
lacked remorse.
8.
Appeals
are not to be granted lightly. Appeals are to be limited to matters
such as where there is a reasonable prospect that the
factual matrix
could receive a different treatment or where there is some legitimate
dispute on the law.
[1]
9.
I am not persuaded that leave to appeal
ought to be granted.
10.
I make the following order:
10.1.
The application for leave to appeal is
dismissed.
10.2.
There is no order as to costs.
________________
Omphemetse Mooki
Judge
of the Labour Court (Acting)
[1]
Martin
and East (Pty) Ltd v NUM (2014) 35 ILJ 2399 (LAC); Seatlholo and
Others v Chemical, Energy, Paper, Printing, Wood and Allied
Workers'
Union and Others (2016) 37 ILJ 1485 (LC)