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[2019] ZALCJHB 369
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Lesese v Eskom Holdings Ltd and Another (J1824/19) [2019] ZALCJHB 369 (28 November 2019)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Case
No: J 1824/19
In
the matter between:
MORGAN
LESESE
Applicant
And
ESKOM
HOLDINGS LTD
First
respondent
PIET
NKUNA
Second
respondent
Delivered:
28 November 2019
RULING: APPLICATION
FOR LEAVE TO APPEAL
VAN NIEKERK J
[1]
This is an application for leave to appeal against the whole of the
judgment delivered
by this court on 3 September 2019, when the court
struck an application filed by the applicant from the roll for lack
of urgency,
and ordered the applicant to pay 50% of the respondent’s
costs.
[2]
The test to be applied is set out in
s 17
of the
Superior Courts Act,
10 of 2013
. Leave to appeal may only be given if there is a
reasonable prospect of success or there is some other compelling
reason why the
appeal should be heard. In this court, it has been
emphasised that the test is not to be applied lightly; indeed, the
LAC has urged
this court to be ‘cautious’ when leave to
appeal is granted (see
Seathlolo & others v Chemical Energy
Paper and Wood & Allied Workers Union and others
(2016) 37
ILJ
1485 and
Martin & East v NUM (
2014) 35
ILJ
2399 (LAC)).
[3]
The applicant submits that the court erred in finding that the
applicant was seeking
an order to interdict his disciplinary hearing,
and that the application was an abuse of court process, that the
urgent application
had a connection with the applicant’s prior
referral involving an alleged protected disclosure, that the court
erred in finding
that the applicant was suspended on 26 June 2019 and
27 June 2019, and in ordering that the applicant to pay 50% of the
respondent’s
costs.
[4]
All of these grounds but the last can be disposed of on the basis
that the nature
of the order granted by the court on was one in terms
of which the application was struck from the roll. It is trite that
an order
of striking a matter from the roll for want of urgency is
not a final order, and is not appealable.
[5]
Insofar as the applicant seeks leave to appeal against the order for
costs, it must
necessarily be borne in mind that
s 162
of the LRA
confers a broad discretion on the court to make orders for costs
according to the requirement of the law and fairness.
It is also
trite that an appeal court will ordinarily be reluctant to interfere
with the exercise of a discretion by the trial
court. The factors to
be taken into account by the trial court extended to the conduct of
the parties in proceedings before the
court, and during those
proceedings. The balance to be struck is one that seeks not unduly to
discourage workers from approaching
this court to have their disputes
dealt with, and avoiding the urgent role becoming clogged with
frivolous disputes that should
not be brought to Court. In the
present instance, the applicant had already been warned by Whitcher J
in a previous application
brought some two months before the urgent
application that is the subject of these proceedings. That warning
extended particularly
to the consequence of filing urgent
applications that were not urgent and were devoid of merit. Despite
this warning, the applicant
launched yet another urgent application,
with no grounds for urgency and with no merit. In the circumstances,
an order that the
applicant pay 50% of the respondent’s costs
strikes the balance that is necessary in matters of this nature and
in my view,
there is no reasonable prospect that another court will
come to a different conclusion. For these reasons, leave to appeal
stands
to be refused.
I
make the following order:
1. The
application for leave to appeal is dismissed.
André
van Niekerk
Judge