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[2019] ZALCPE 29
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Tafeni v Commission for Conciliation, Mediation and Arbitration and Others (PR45/17) [2019] ZALCPE 29 (19 September 2019)
IN THE LABOUR COURT OF
SOUTH AFRICA, PORT ELIZABETH
Not
Reportable
Case
no: PR 45/17
In
the matter between:
ODWA
TAFENI
Applicant
and
COMMISSION FOR
CONCILIATION, MEDIATION
AND
ARBITRATION First
Respondent
COMMISSIONER SONJA
KILLIAN Second
Respondent
EASTERN CAPE RURAL
DEVELOPMENT AGENCY Third
Respondent
SHELDON RECRUITMENT
AND SELECTION Fourth
Respondent
Decided:
In
Chambers
Delivered:
19
September 2019
JUDGMENT –
APPLICATION FOR LEAVE TO APPEAL
MAHOSI. J
[1] This
is an opposed application for leave to appeal against the whole
judgment of this Court handed down on
04 October 2018 in terms of
which the Court dismissed the applicant’s review application.
[2] The
applicant brought this application on the basis of a number of
grounds. However, the challenge was mainly
that the Court erred in:
2.1 Finding
that the applicant submitted a self-defeating argument that a
formally invalid renewal invalidates
the initial contract.
2.2 Failing
to define the process which details how the mechanics of section 198B
of the Labour Relations
Act
[1]
LRA should be effected to trigger the statutory operation of an
indefinite term in terms of section 198A(3)(b)(ii) and section
198B(5) of the LRA and how the issue of contract and joinder fits
into the equation.
2.3 Misconstruing
sections 198A(5) and 198B(3) of the LRA.
2.4 Assessing
the degree of comparability of the applicant’s tasks with those
of a Senior Finance Clerk.
2.5 Focussing
on the reasons for renewal and not the reasons, which justify the
fixing of the employment.
2.6 Entertaining
an argument on section 198B(3) as there is a breach of section
198B(6)(b).
[3] In
opposing this application, the respondent submitted that the
amendments to section 198 of the LRA mentioned
only became applicable
after the applicant’s matter was heard and do not apply
retrospectively. The respondent further submitted
that the applicant
could not be reinstated to a higher position that he never occupied.
In this regard, the respondent argued that
the fact that the
applicant applied for the position of a Senior Finance Clerk was not
a guarantee that such position would be
made available to him and
that it did not create any expectation, reasonable or otherwise.
Test for leave to
appeal
[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 than that arrived at
by the court
a
quo
.
[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
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 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.’
[7] In
this matter, the Court is not persuaded that the applicant has made
out a case for the granting of leave
to appeal or that there are
reasonable prospects of a successful appeal. As such, this
application is without merit and stands
to be dismissed.
[8] With
regard to costs,
the
respondent prayed that the applicant should pay punitive costs for
bringing a frivolous and vexatious application that is wasting
both
the Court’s and the respondent’s time.
In
terms of section 162 of the LRA, the Court has a wide discretion in
awarding costs. The Constitutional Court reiterated in
Zungu
v Premier of the Province of Kwa-Zulu Natal and Others
[5]
that in labour matters, costs orders should be made in accordance
with the requirements of law and fairness. In this matter,
the
requirements of law and fairness dictate that there should be no
order as to costs.
[9] Accordingly,
the following order is made:
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.
[5]
(2018)
39 ILJ 523 (CC).