About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2019
>>
[2019] ZALCJHB 325
|
|
Osho Steel (Pty) Ltd v Ngobeni NO and Others (JR2768/17) [2019] ZALCJHB 325 (12 November 2019)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: JR 2768/17
In the matter between:
OSHO STEEL (PTY)
LTD
Applicant
and
EVA NGOBENI
N.
O
First Respondent
COMMISSION FOR
CONCILIATION MEDIATION
AND
ARBITRATION
Second
Respondent
MAHOMED RAFIQ
QUERESHI
Third Respondent
In Chambers:
12 November 2019
JUDGMENT: APPLICATION
FOR LEAVE TO APPEAL
TLHOTLHALEMAJE,
J
[1]
On
27 August 2019, this Court delivered a judgment and an
order in terms of which the applicant’s application to
review
and set aside the arbitration award issued by the first respondent
acting under the auspices of the Commission for Conciliation
Mediation and Arbitration (CCMA) was dismissed with costs. The first
respondent had concluded that the third respondent had been
constructively dismissed by the applicant as contemplated in the
provisions of section 186(1)(e) of the Labour Relations Act.
[1]
[2]
The review application was dismissed on account of
the applicant’s failure to comply with the Rules of this Court
in respect
of the prosecution of reviews under Rule 7A of the Rules
of this Court.
[3]
Having launched the review application, the
applicant had served and filed a record of arbitration proceedings
which was not made
available by the CCMA in terms of the provisions
of Rule 7A(2) and (3) of the Rules of this Court. The transcribed
record was from
the applicant’s own private recording of the
arbitration proceedings, which it had thereafter served and filed
even before
the CCMA had an opportunity to dispatch the records to
the Registrar of this Court in terms of rule 7A(3) read with subrule
(2).
[4]
The third respondent had raised its objection
against this conduct in correspondence dated 15 January 2018
and further
in his answering affidavit filed on 2 February 2018.
Despite his protest in respect with the non-compliance with the Rules
of this Court, the applicant erstwhile attorneys of record
nevertheless addressed correspondence to the Registrar of this Court
insisting that the review application remained unopposed and further
that the same was ripe for hearing.
[5]
The Registrar on 8 March 2019, enrolled
the review application to be heard on 22 August 2019. On
6 June 2018,
the third respondent filed his heads of
argument contending that the review application was irregular in view
of the record having
not been filed and served in accordance with the
provisions of the Rules of this Court.
[6]
As mentioned above, the Court on 27 August 2019
delivered judgment upholding the third respondent’s points on
the
non-compliance with the patent provisions of Rule 7A of the Rules
of this Court, and dismissed the applicant’s review application
with costs.
[7]
The applicant has since filed an application for leave to appeal. In
its
grounds of appeal, the applicant contends that the Court erred in
considering the review application in circumstances where the
review
application had lapsed or deemed to be withdrawn in terms of
directive 11.2.3 of the Practice Manual. This argument was
raised in
the notice of the application for leave to appeal for the time.
[8]
The
principles applicable to applications for leave to appeal are
well-established. These principles have been codified in terms
of the
provisions of section 17(1) of the Superior Courts Act
[2]
which stipulates that leave to appeal may be granted if there are
reasonable prospects that the appeal would succeed or there are
some
other compelling reasons why the appeal should be granted.
[9]
In general,
a point not raised in the pleadings before the Court
a
quo
may
not be raised on appeal unless the court grants leave to amend those
pleadings.
[3]
Aligned to that
principle is that a point in the appeal may only be raised if it is
covered by the pleadings which served before
the court
a
quo
and
the evidence thereto, and further that the consideration of the point
would not culminate into unfairness towards the other
party.
[4]
[10]
As mentioned above, the applicant relies on the provisions of
directive 11.2.3 of the Practice
Manual for the proposition that the
Court ought to have struck-off the review application and provided it
with an opportunity to
remedy the defective record and a further
opportunity to file an application to revive the review .
[11]
It is common cause that the applicant was placed on terms by the
third respondent well
before an answering affidavit was filed, that
the review application was irregular for want of compliance
inter
alia
with the provisions of Rule 7A(2) & (3) in respect of
the filing of the record. Moreover, the third respondent took issue
with
the integrity and quality of the record.
[12]
Instead of heeding the call to rectify the defects, the applicant’s
posture throughout
was that the review application was properly
before the Court, and had insisted that it be heard on an unopposed
basis. This was
despite the third respondent’s protestations in
the answering affidavit and further in the heads of argument.
[13]
Again, the applicant did little, if anything to address those
concerns in the replying
affidavit. In the hearing of the review
application, the applicant persisted with its posture. Nowhere in the
pleadings and/or
its’ submissions did the applicant seek to
rely on the provisions of directive 11.2.3 of the Practice Manual as
a safety
net against the dismissal of the review on account of the
abovementioned defects.
[14]
The applicant insisted on having its day in Court notwithstanding the
defective nature
of its review application. It got its wish, and
cannot now cry foul. The application for leave to appeal as correctly
submitted
on behalf of the third respondent, is disingenuous
opportunistic and ill-conceived. The applicant says nothing to
demonstrate that
the point relied on in terms of provisions of
directive 11.2.3 was raised in the review application or that the
pleadings in one
way or another sought to address that issue.
[15]
In the light of these factors, there is nothing in the
submissions made in support
of the leave to appeal to demonstrate
that the applicant has reasonable prospects that the Labour Appeal
Court would look at the
matter differently and come to a different
conclusion.
[16]
In respect of costs, the least said about the applicant legal
strategy the better. It must
however be said that the application for
leave to appeal was ill-advised, ill-conceived and was indeed
frivolous and vexatious.
On that basis, I find no reason in law and
fairness why the applicant should not pay the costs of this
application taking into
account its conduct in persisting with this
application.
[17]
Accordingly, the following order is made;
Order:
1. The application
for leave to appeal is dismissed.
2. The applicant is
ordered to pay the costs of this application.
___________________
E.
Tlhotlhalemaje
Judge
of the Labour Court of South Africa
[1]
Act 66 of 1995 (as amended)
[2]
Act 10 of 2013
[3]
See
Commissioner
for Inland Revenue v Lazarus Estate
1958 (1) SA 311
(A) 320G-H: where the Court held:
…
In
Commissioner for Inland revenue v Estate Crewe and Another, 1943 A.D
at p. 682, is in point. In relation to a new argument
sought to be
raised on appeal for the first time the learned Chief Justice said,
“
This
contention, however, raised an entirely new case; it was not a
contention put forward in the special case nor was it considered
in
the trial Court, and it cannot now be considered, and I express no
opinion on it.” The present proceedings were as I
have
indicated substantially by agreed by the parties. The case quoted by
counsel for the Commissioner, which state the general
principles on
which points of law will be entertained on appeal, are less directly
applicable than is the passage from Crewe’s
case. The
Commissioner’s proposal to rely on sec. 3(3)(a) would amount
to setting up a wholly new case and this is sufficient
to lead to
the conclusion that the new point must be disregarded.
[4]
See
Alexkor
Ltd and Another v Richtersveld Community and Others
)
[2003] ZACC 18
;
2004 (5) SA 460
(CC);
2003 (12) BCLR 1301
(CC) (14
October 2003) at para 44