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in compliance with the law and SAFLII Policy
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No.: JR 1086/21
In the matter between:
DEPARTMENT OF SPORTS, ARTS AND CULTURE
AND RECREATION Applicant
and
GENERAL PUBLIC SERVICE SECTOR BARGAINING COUNCIL First Respondent
LUYANDA OLOTA N.O. Second Respondent
ANDILE KOLANISI Third Respondent
Heard: 10 December 2024
Delivered: 21 January 2025
JUDGMENT
LUTHULI, AJ
Introduction
2
[1] This is an application for leave to appeal to the Labour Appeal Court
against the whole of my judgment and order delivered on 30 September 2024. The
application is opposed.
[2] In my judgment, I dismissed the review application as well as the cross
review and found that the a rbitrator’s a ward falls within the band of
reasonableness.
[3] The application is premised on the provisions of sections 16 and 17 of the
Superior Court s Act
1.
[4] The parties are at ad idem concerning the applicable test for this application
to succeed. It is submitted by the Applicant that the application has reasonable prospects of success and that there are other compelling reasons why leave to appeal should be granted.
[5] The Applicant relied on Acting National Director of Public Prosecutions and
Others v Democratic Alliance in Re: Democratic Alliance v National Director of Public Prosecutions and Others
2 in its submission regarding the applicable test.
[6] There was, however, a condonation application that had to be determined
for the Applicant’s late filing of the leave to appeal application.
Condonation application
[7] It is trite that an application for leave to appeal must be instituted within 15
days from the date of the judgment.
[8] Judgment was delivered on 30 September 2024. The application therefore
ought to have been filed by or on 21 October 2024.
1 Act 10 of 2013.
2 (19577/09) [2016] ZAGPPHC 489 (24 June 2016) .
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[9] On 21 October 2024, the Applicant served the application for leave to
appeal on the Third Respondent at 16h12 to m[…] and duly filed same by e- mail
on the same day.
[10] On 22 October 2024, the Applicant contacted the Third Respondent’s
attorneys of record requesting acknowledgement. The Applicant was informed that the Third Respondent’s attorneys were not in receipt of the application.
[11] It is only at this stage that the Applicant reali sed that the e- mail used was
incorrect, the correct e- mail was m[…] .
[12] The application now being a day late, necessitated a condonation
application.
[13] The application is unopposed.
[14] In my view, the explanation is satisfactory, and the delay is very slight. It is
in the interest of justice to grant the condonation application and therefore, I hereby grant condonation for the late filing of the application for leave to appeal.
Grounds for l eave to a ppeal
[15] My judgment is impugned on the following broad grounds:
15.1. That I erred in finding that the arbitrator’s finding that the Third Respondent did not act in bad faith was reasonable;
15.2. That I erred in finding that the refusal to attend meetings and the non-compliance with instructions were not sufficiently serious and did
not give rise to the destruction of the employment relationship; and
15.3. Other compelling reasons for granting leave to appeal
Analysis
4
[16] In S v Smith3 the Court held:
‘What the test of reasonable prospects of success postulates is a
dispassionate decision, based on the facts and the law, that a court of
appeal could reasonably arrive at a conclusion different to that of the trial
court. In order to succeed, therefore, the appellant must convince this court on proper grounds that he has prospects of success on appeal and that those prospects are not remote, but have a realistic chance of succeeding.
More is required to be established than that there is a mere possibility of success, that the case is arguable on appeal or that the case cannot be categorised as hopeless. There must, in other words, be a sound, rational basis for the conclusion that there are prospects of success on appeal .’
[17] Friedman AJ in Baphalaborwa 72 Construction & Civil Engineering CC and
T& L Civil Electrical Contractors CC
4 recently said the following , which I wholly
agree with:
‘Of course, it is human nature to cling to the correctness of one’s views. But
if rational humans could not be persuaded by argument, the whole system of litigation would be pointless. It is a duty of a judge (or acting judge) when deciding whether to grant leave to appeal to have the humility to realise when his or her findings are subject to reasonable disagreement, and to approach the matter as objectively as possible. Good judges, in a sensible legal system, should easily be able to identify which points are arguable and which are not. Just as, I dare say, good people, in a sensible society, should be able to take a position while recognising the reasonableness (or unreasonableness) of the differing views of others .’
[18] I am persuaded that a different court can reach a different conclusion than
the one I reached when I found that the a rbitrator’s finding, that a breach of
fiduciary duty takes place when a person acts in bad faith, was reasonable.
[19] There are reasonable prospects of success , in my view , on this ground. It is
3 [2011] ZASCA 15; 2012 (1) SACR 567 (SCA) at para 7.
4 (2018/45610) [2024] ZAGPJHC 1046 (17 October 2024) at para 3.
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possible that another court c ould find that by signing and supporting the
appointment of an unsuited candidate, the Third Respondent breached his
fiduciary duties.
[20] Given the position of the Third Respondent, being a Chief Director, I am
persuaded that another court could reach a conclusion that the Third
Respondent’s failure to attend meetings and his non- compliance with instructions
destroyed the trust relationship between himself and the Applicant .
[21] It may very well be that another court could find that corrective and
progressive discipline was not the appropriate sanction in these circumstances.
[22] For these reasons, the application for leave to appeal must succeed .
[23] In the premises, the following order is made:
Order
1. C ondonation of the late filing of the leave to appeal is granted.
2. The application for leave to appeal is granted.
3. There is no order as to costs.
B Luthuli
Acting Judge of the Labour Court of South Africa
Appearances:
For the Applicant: Adv. Matyolo
Instructed by : the State Attorney
For the Third Respondent : Mr Shuping of PM Shuping Attorneys