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[2019] ZALCJHB 332
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Makokoropo v Commission for Conciliation, Mediation and Arbitration and Others (JR1062/15) [2019] ZALCJHB 332 (29 November 2019)
IN THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case no: JR 1062/15
In the matter between:
SYLVIA
MAKOKOROPA
Applicant
and
COMMISSION
FOR CONCILIATION
MEDIATION
AND ARBITRATION
First Respondent
MPHO
BRENDAH MABIDI
N.O
.
Second Respondent
COMPASS
GROUP
Third Respondent
Decided:
In Chambers
Delivered:
29 November 2019
JUDGMENT –
APPLICATION FOR LEAVE TO APPEAL
MAHOSI. J
[1]
This is an opposed application for leave to appeal against the whole
ex-tempore
judgment of this Court handed down on 14 November
2018 in terms of which the Court dismissed the applicant’s
review application
with no order as to costs.
[2]
The applicant brought this application on the grounds that the Court
erred in:
2.1
Finding that the applicant filed an incomplete record of the
proceedings. According to the
applicant, the Court ought to have
found that the record before the Court was sufficient for deciding
the matter.
2.2
Failing to give the applicant a fair hearing as required by section
34 of the Constitution.
2.3
Failing to interfere with the sanction imposed by the third
respondent.
2.4
Failing to find that the employer relied on hearsay evidence at the
disciplinary hearing.
2.5
Failing to find that the arbitrator was supposed to approach the
evidence of a single witness,
who was also an accomplice with
caution.
[3]
In opposing, the third respondent submits that it raised the issue of
the incomplete
record in 2015 when they filed their answering
affidavit, but the applicant failed to offer a reason or an
explanation as to why
a proper record was not discovered in terms of
Rule 7A(6) of the Rules of the Labour Court. The respondent further
submits that
the application is lacking in substance and has no
reasonable prospects of success.
[4]
The traditional test in determining whether to grant an application
for leave to appeal
is whether there is a reasonable prospect that
another court may come to a different conclusion.
[1]
In terms of section 166(1) of the Labour Relations Act (LRA),
[2]
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 Courts Act,
[3]
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.’
[5]
Section 16(2)(a) of the Superior Courts 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.’
[6]
In
Martin
and East (Pty) Ltd v National Union of Mineworkers and Others,
[4]
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 by 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]
Having had regard to the submissions, I am not persuaded that there
are reasonable
prospects of a successful appeal. As such, I am of the
view that this application is without merit and must be dismissed.
[8]
With regard to costs, taking into account the requirements of law and
equity, I am
of the view that this is a matter in which there should
be no order as to costs.
[9]
Accordingly, I make the following order:
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]
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.
[2]
Act
66 of 1995 as amended.
[3]
Act
10 of 2013.
[4]
(2014)
35 ILJ 2399 (LAC) at 2405-2406.