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[2020] ZALCJHB 175
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Mabokela v Railway Safety Regulator (JR 281/19) [2020] ZALCJHB 175 (2 July 2020)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case no: JR 281/19
In the matter between:
JOHN SELLO
MABOKELA
Applicant
and
RAILWAY SAFETY
REGULATOR
Respondent
Decided: In Chambers
Delivered:
2 July 2020
In
view of the measures implemented as a result of the Covid-19
outbreak, this judgment was handed down electronically by circulation
to the parties' representatives by email. The date for hand-down is
deemed to be on 02 July 2020.
JUDGMENT –
APPLICATION FOR LEAVE TO APPEAL
PRINSLOO, J.
Introduction
[1]
Having granted an order dismissing the
review application filed by the respondent and having provided
reasons for my order on 15
February 2020, the Respondent filed this
application, seeking leave to appeal against the judgment of this
Court.
[2]
It is apposite at this point to set out a
brief background of this matter.
Background
[3]
The Applicant referred an unfair labour
practice dispute against the Respondent, which was arbitrated and an
arbitration award was
issued on 9 December 2018. Subsequent thereto,
the Respondent filed an application to review and set aside the
arbitration award.
The review application was filed outside the
prescribed six-week period and the Respondent did not seek
condonation for the late
filing of the review application.
[4]
On 19 September 2019, the Applicant filed
an application in terms of the provisions of Rule 11 of the Labour
Court Rules where he
sought an order to dismiss the Respondent’s
application for review. The Applicant had submitted that not only was
the review
application filed late, but the Respondent had also failed
to file the record within the prescribed 60-day period.
Grounds for leave to
appeal
[5]
The
crux of the Respondent’s challenge to the judgment of this
Court is that the Court erred in dismissing the review applicant
after finding that it was deemed withdrawn in terms of the provisions
of clause 11.2.3 of the Practice Manual of this Court
[1]
.
The Respondent submitted that leave to appeal should be granted on
the following grounds:
5.1
The status of a review application that is deemed to be withdrawn is
critical to the issue
of jurisdiction and whether there is, in fact
and in law, a matter before the Court that is capable of being
adjudicated;
5.2
There are conflicting judgments coming out of this Court regarding
the interpretation of clause
11.2.3 of the Practice Manual, resulting
in confusion and uncertainty in the practice and procedure in the
Labour Court.
5.3
The clarification of this issue is of practical importance to the
Labour Court as it will have
a direct impact on the court roll.
[6]
It is apposite at this juncture to state
that on a complete reading of the Respondent’s submissions, its
challenge is limited
to the Court’s finding that the review
application is deemed withdrawn, as envisaged in clause 11.2.3 of the
Practice Manual,
and the subsequent dismissal of its application. The
Respondent had lost sight of the findings of this Court
in
toto
. Had the Respondent had a total
regard of the judgment, it would have acquiesced with the fact that
this was not an isolated factor
taken into account by the Court and
it was not the sole basis for dismissing the review application. The
following passages from
the judgment need to be repeated:
‘
[20]
In casu
,
it is undisputed that the Respondent has not filed the record within
the prescribed 60-day period. The Respondent has not followed
any of
the steps to ensure an extension of time to file the record after the
record was uplifted in March 2019. It follows that
the review
application is deemed to be withdrawn.
…
[22]
Secondly, the application for review was dismissed because it was
filed out of time without any
application for condonation.
…
[26]
The failure to comply with the prescribed period goes to the issue of
jurisdiction. The late
filing of the review application constitutes a
failure to comply with a statutory provision and the Respondent had
to apply for
condonation.
[27]
In casu
, there is no application for condonation. The late
filing of the review application as well as the absence of an
application for
condonation is fatal to the Respondent’s case,
more so where there was no attempt to comply with the Rules in filing
the
record and to apply for condonation.
Test for leave to
appeal
[7]
The test for leave to appeal is trite. The
longstanding requirement is that an applicant in an application for
leave to appeal must
convince the court
a
quo
that it has reasonable prospects of
success on appeal.
[8]
Appeals should be limited to matters where
there is a reasonable prospect that the factual matrix could receive
a different treatment
or where there is some legitimate dispute on
the law.
[9]
In
Seatlholo
and Others v Chemical Energy Paper Printing Wood and Allied Workers
Union and Others
[2]
this Court confirmed that the test applicable in applications for
leave to appeal is stringent and held as follows:
‘
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)’.
[10]
In
deciding this application for leave to appeal, I am also guided by
the dicta of the Supreme Court of Appeal (SCA) where it held
in
Dexgroup
(Pty) Ltd v Trustco Group International (Pty) Ltd and Others
[3]
that:
‘…
The
need to obtain leave to appeal is a valuable tool in ensuring that
scarce judicial resources are not spent on appeals that lack
merit.
It should in this case have been deployed by refusing leave to
appeal.’
[11]
A consideration of the above principles
evinces that the Respondent’s understanding of the applicable
principles is flawed.
The requirements for seeking leave to appeal
are clear and simple. The Respondent wants to nitpick findings of the
Court and run
with one it considers confusing and hope that that
would suffice to be granted leave to appeal to a higher Court. This
approach
is ill conceived and this Court is not convinced that this
point, even when considered uniquely confusing by the Respondent
deserves
the attention of the Labour Appeal Court (LAC). It is on
this basis that the application falls to be dismissed.
[12]
Even if this Court is wrong in its finding
in respect of the interpretation of clause 11.2.2, the late filing of
the review application
without seeking condonation for such late
filing is fatal to the Respondent’s case. That also constituted
a basis to dismiss
the Respondent’s review application and no
leave to appeal is sought against that.
[13]
In
Computer
Storage Services Africa (Pty) Ltd v CCMA and Others
[4]
the LAC recently confirmed that where no application served before
the Labour Court seeking condonation to be granted for the late
filing of the application for review, the Labour Court correctly
found that it lacked jurisdiction to determine that review
application.
[14]
Having considered the grounds for leave to
appeal as submitted by the Respondent, I am not persuaded that there
are reasonable prospects
that the LAC could arrive at a different
conclusion than that of this Court. It follows that the application
for leave to appeal
has to fail.
[15]
In the premises, I make the following
order:
Order
1.
The application for leave to appeal is
dismissed.
2.
There is no order as to costs.
_____________________
Connie Prinsloo
Judge
of the Labour Court of South Africa
[1]
April
2013.
[2]
(2016)
37 ILJ 1485 (LC) at para 3.
[3]
2013
(6) SA 520
(SCA);
[2014] 1 All SA 375
(SCA) at para 24.
[4]
Unreported
judgment of the Labour Appeal Court (CA 7 /2016) handed down on 30
November 2017