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[2019] ZALCD 3
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Department of Health for the Province of Kwazulu-Natal v HOSPERSA obo Perumal and Others (D989/15) [2019] ZALCD 3 (27 March 2019)
IN
THE LABOUR COURT OF SOUTH AFRICA, DURBAN
Not
Reportable
Case
no: D 989/15
In
the matter between:
DEPARTMENT OF HEALTH
FOR
THE PROVINCE OF KWAZULU-NATAL
Applicant
and
HOSPERSA
obo R PERUMAL
First
Respondent
PUBLIC HEALTH AND
SOCIAL DEVELOPMENT
SECTORAL
BARGAINING COUNCIL
Second Respondent
A
DORASAMY
N.O
Third
Respondent
Decided:
In Chambers
Delivered:
27 March 2019
JUDGMENT-
LEAVE TO APPEAL
MAHOSI,
J
[1]
This is an unopposed application for leave to appeal against the
whole judgment of
this Honourable Court handed down on 28 December
2018 in terms of which the Court held as follows:
‘
1.
The arbitration award is reviewed and set aside and substituted with
the following
order:
1.1
The dismissal of the employee (Mr Perumal) was substantively fair.
2.
Each party is to pay its own costs.’
[2]
Parties are cited as they were in the review application.
[3]
The applicant brought this application on the basis that the Court
erred in applying
the test for review to the facts that served before
the Court in that there are discrepancies between the factual
findings of the
Court and the evidence that served before the third
respondent. In this regard, the applicant’s submission is that
the Court’s
finding that the question of how the employee
gained possession of the drugs was of no consequence is a
misdirection on law. The
applicant’s further submission is that
the Court erred in substituting the third respondent’s finding
because theft
was not the basis of the misconduct against the
employee.
[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 of the
court
a
quo
.
[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 Court 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 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.’
[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]
Having had regard to the submissions, I am not persuaded that the
applicant has made
out a case for the granting of the leave to appeal
or that it has showed good cause, or that there are reasonable
prospects of
a successful appeal or that there are some other
compelling reasons why the appeal should be heard. As such, I am of
the view that
this application is without merit and must be
dismissed.
[8]
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.