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[2020] ZALCJHB 18
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Maluleke v Department of Telecommunications and Postal Services and Others (JR479/18) [2020] ZALCJHB 18 (31 January 2020)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
no: JR 479/18
In
the matter between
MALULEKE
K
L Applicant
and
DEPARTMENT
OF TELECOMMUNICATIONS
AND
POSTAL
SERVICES
First
Respondent
T
N DUBE
Second
Respondent
GENERAL
PUBLIC SERVICE
BARGAINING
COUNCIL Third
Respondent
Date
heard: In
chambers:
Date
delivered: 31 January 2020
Summary:
Application for leave to appeal
JUDGMENT
– LEAVE TO APPEAL
COETZEE
AJ
[1]
In the written judgment of 7 November 2019 I dismissed the
applicant's review application
with no order as to costs.
[2]
The applicant on 25 November 2019 filed an application for leave to
appeal.
[3]
The application for leave to appeal sets out the various grounds of
appeal.
[4]
The application for leave to appeal is opposed.
[5]
I have considered the application for leave to appeal and the written
representations in chambers.
[6]
In terms of Rule 30 (2)
‘
If leave to appeal
has not been made at the time of judgment or order, an application
for leave must be made and the grounds for
appeal furnished within 15
days of the date of the judgment or order against which leave to
appeal is sought, except that the court
may, on good cause shown,
extend that period'
[7]
The application was made timeously.
[8]
Section 17
of the
Superior Courts Act, no 10 of 2013
regulates an
application for leave to appeal from a decision of a High Court. It
reads as follows:
'17. Leave
to appeal.
—
(1) Leave to
appeal may only be given where the judge or judges concerned 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 decision
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 issues between the parties'.
[9]
This
section also applies to applications for leave to appeal in the
Labour Court.
[1]
[10]
The Court
in
Mgezeni
Gasbat Nxumalo v the National Bargaining Council for the Chemical
Industry (NBCCI) and Others
[2]
conveniently summarised the approach to an application for leave to
appeal:
'The traditional
formulation of the test that is applicable in an application such as
the present requires the court to determine
whether there is a
reasonable prospect that another court may come to a different
conclusion to that reached in the judgment that
is sought to be taken
on appeal. As the respondents observe, the use of the word “would”
in
s17(1)(a)(i)
are indicative of a raising of the threshold since
previously, all that was required for the applicant to demonstrate
was that
there was a reasonable prospect that another court might
come to a different conclusion (see
Daantjie
Community and Others v Crocodile Valley Citrus Company (Pty) Ltd and
Another
(75/2008)
[2015] ZALCC 7
(28 July 2015). Further, this is not a test to be
applied lightly – the Labour Appeal Court has recently had
occasion to
observe that this court ought to be cautious when leave
to appeal is granted, as should the Labour Appeal Court when
petitions
are granted. The statutory imperative of the expeditious
resolution of labour disputes necessarily requires that appeals be
limited
to those matters in which there is a reasonable prospect that
the factual matrix could receive a different treatment or where there
is some legitimate dispute on the law (See the judgment by Davis, JA
in
Martin
and East (Pty) Ltd v NUM
(2014)
35
ILJ
2399
(LAC), and also
Kruger
v S
2014
(1) SACR 369
(SCA) and the ruling by Steenkamp, J in
Oasys
Innovations (Pty) Ltd v Henning and Another
(C
536/15, 6 November 2015) and also
Seatlholo
and Others v Chemical, Energy, Paper, Printing, Wood and Allied
Workers' Union and Others
[3]
.'
[11] I
do not intend to deal with each of the grounds of appeal separately.
[12]
The applicant has raised one ground of appeal that is different from
the grounds of review in the hearing
of the matter which grounds were
addressed in the reasons for the judgment.
[13]
The new ground is based upon the following remark in paragraph 5 of
the judgment:
"The registrar
enrolled this matter on the special roll because of the voluminous
documentation. I have made ample use of the
heads of argument and
borrowed generously therefrom".
[14]
The applicant submits that a use of the heads (that included those of
the applicant) is indicative thereof
that the judge failed to apply
his mind to the issues and failed to exercise an independent judgment
in the matter which deprived
the applicant of a fair trial.
[15]
A careful reading of the judgment will show that it is not the case.
A
verbatim
repeat of portions of the heads (of both parties)
are only in respect of quotations from the record and documentary
evidence.
[16]
In all instances, reasons were given for findings. For example, the
applicant submits that the arbitrator
found that the 2012 HR Policy
did not have retrospective effect but applicant was charged on same
and the judgment does not address
this finding. The judgment in fact
sets out that the 2012 policy was in effect the 2009 policy that had
not been withdrawn. In
effect this means that she was in breach of an
existing rule. Thus the ground of appeal has no merit.
[17]
The rest of the grounds of appeal are in substance a repeat of the
grounds of review raised in the hearing
and dealt with in the
judgment.
[18]
In my view after careful consideration of the applicant's stated
grounds for leave to appeal, there is nothing
that persuades me that
any appeal would have a reasonable prospect of success.
[19]
There are no other compelling reasons why leave to appeal should be
granted.
[20]
There is no reason why a cost order should be made in this
application.
[21]
I make the following order:
[21.1]
The application for leave to appeal is dismissed.
[21.2]
There is no order as to costs.
________________
Coetzee
AJ
Acting
judge of the Labour Court
Representation:
For
the applicant: Considered in chambers
For
the Respondent:
Considered in chambers
[1]
Section 151 of the Labour Relations Act, Act 66 of 1995
[2]
JR1170 /2013 unreported
[3]
(2016) 37 ILJ 1485 (LC)