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[2019] ZALCPE 30
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JD Group (Pty) Ltd (a division of Pepkor) t/a Joshua Doore v Plaatjies NO and Another (PR141/17) [2019] ZALCPE 30 (31 May 2019)
IN
THE LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH
Not Reportable
Case no: PR 141/17
In the matter between:
JD GROUP (PTY) LTD (A
DIVISION OF PEPKOR
t/a
JOSHUA
DOORE
Applicant
and
PLAATJIES, S
N.O
First
Respondent
SACCAWU OBO INGRID
COETZEE Second
Respondent
Decided:
In
Chambers
Delivered:
31
May 2019
JUDGMENT - LEAVE TO
APPEAL
MAHOSI. J
[1] This
is an application for leave to appeal against the whole judgment of
this Court handed down on 03 April
2019 in terms of which the Court
dismissed the applicant’s review application. The application
is opposed by the second respondent.
[2] The
applicant brought this application on the basis that the Court erred
in fact and in law in dismissing its
review application in that it
failed to properly appreciate and apply the applicable review test
and to deal with the applicant’s
case. It is the applicant’s
case that the arbitrator ignored material evidence, made credibility
findings totally out of
kilter with evidence as it appeared on the
record, in particular the evidence of the second respondent. The
applicant’s further
ground of appeal was that the Court erred
in failing to deal with the probabilities as raised in the
applicant’s review application
and the ground that
reinstatement was not appropriate by virtue of the application of
section 193(2)(b) of the Labour Relations
Act
[1]
(LRA).
[3] It
was the applicant’s submission that the Court deprived it of a
fair and proper determination of the
case and further that, had the
Court properly considered the evidence as a whole, the only
conclusion that the Court could have
reached is that the arbitrator’s
outcome is entirely unreasonable.
[4] In
opposing the application, the second respondent submitted that the
application for leave to appeal is without
merits and falls to be
dismissed with costs in that the award is above reproach even when
measured by the yardstick of reasonableness.
Further that there was
no reason for the arbitrator to deny the second respondent her
primary remedy of reinstatement after finding
that she had not
committed misconduct for which she has been dismissed.
[5] 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 conclus
ion.
[2]
In terms of section 166(1) of the LRA, 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
Court Act,
[3]
whi
ch
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.’
[6] Section
16(2)(a) of the Superior Court 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.’
[7] 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 and in 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.’
[8] Having
had regard to the applicant’s 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.
[9]
With
regard to costs, taking into account the requirements of law and
fairness, I am of the view that this is a matter in which
there
should be no order as to costs
.
[10] 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]
Act
66 of 1995 as amended.
[2]
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.
[3]
Act
10 of 2013.
[4]
(2014)
35 ILJ 2399 (LAC) at 2405-2406.