AHI Employers Organisation v Takalasi (JR202/13) [2016] ZALCJHB 203 (3 June 2016)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Case no: JR202/13

In the matter between:

AHI EMPLOYERS ORGANISATION

Applicant

and

FREDERICK TAKALASI Respondent (Applicant for leave to appeal)

Decided: 3 June 2016 (In Chambers)

RULING: APPLICATION FOR LEAVE TO APPEAL

FOURIE AJ:

Introduction

[1] In this matter Mr Takalasi, the third respondent in the review application seeks leave to appeal against the whole of my ex tempore judgment and order handed down on 7 July 2015. In the judgment, I upheld the review application and replaced the arbitration award with an award to the effect that Mr Takalasi had failed to discharge the onus of proving a dismissal. The reasons appear from my ex tempore judgment.

[2] The application for leave to appeal is not opposed. Mr Takalasi’s attorney has delivered written submissions as provided for in terms of Rule 30 (3A) as read with paragraph 15 of the Practice Directive.

[3] The application for leave to appeal was brought several months out of time, and is accompanied by an application for condonation. I accept the reasons proffered in the condonation application.

[4] The primary ground upon which leave to appeal is sought is that the review application was successful despite the absence of the applicant at the hearing of the application. Mr Takalasi is aggrieved that despite his presence and representation, and the absence of the applicant, the review application was granted. His attorney argues that it I exceeded my powers by dealing with the review application with on its merits in the absence of the applicant. The application should have been dismissed or struck from the roll.

[5] In the second instance, leave is sought on the basis that another court may reasonably find that Mr Takalasi in fact did discharge the onus of proving a dismissal, and that I erred in this regard.

[6] I did not deem it necessary for this application for leave to appeal to be heard in open court and considered the application in chambers on the basis of the aforementioned submissions.

Grounds for leave to appeal

[7] It is trite that the test in deciding whether or not to grant leave to appeal is the traditional test. It requires a judge to ask whether there is a reasonable prospect that another court may come to a different conclusion than that of the court a quo.[1]

[8] I am not persuaded that it lies beyond the powers of a judge in opposed motion proceedings, to deal with the merits of the application in the absence of one or both parties, in circumstances where proper notice of the hearing was given. The authorities relied on in support of this submission seem to be distinguishable as they relate to trial or appeal proceedings. I accept that it is competent relief to strike a matter the roll due to lack of appearance in motion proceedings. However, I do not see why, where the evidence (in the form of affidavits) and the argument (written heads) is before the court, that the matter cannot proceed in the discretion of the court.

[9] However, I appreciate that Mr Takalasi must have felt particularly hard done by - having succeeded at arbitration, and having secured pro bono representation in the review, and in the absence of the applicant, he was unsuccessful. A court sitting on appeal may find that the review application should have been struck from the roll in the absence of the applicant.

[10] I am therefore satisfied that there is a reasonable prospect that another court may come to a different conclusion in this regard. In order to assist the Labour Appeal Court in its deliberations, it would be useful to have regard to the transcript of the argument, and the ex tempore judgment, which are attached hereto.

Order

[11] In the premises, I make the following order:

11.1. Condonation for the late filing of the application for leave to appeal is granted.

11.2. The application for leave to appeal against the entirety of my order and judgment and order is granted.

11.3. Costs of the application for leave to appeal are to be costs in the appeal.

__________________

GA Fourie, AJ

Acting Judge of the Labour Court of South Africa

[1] Mofokeng & Others v JAC Pallets Africa CC & Others (2010) 31 ILJ 686 (LC) at p693, para 15; See also Ngcobo v Tente Casters (Pty) Ltd (2002) 23 ILJ 1442 (LC) at 1443A-B; Tsotetsi v Stallion Security (Pty) Ltd (2009) 30 ILJ 2802 (LC) at p 2804, para 14; Ngcobo v Tente Casters (Pty) Ltd (2002) 23 ILJ 1442 (LC); Karbochem Sasolburg (A Division of Sentrachem Ltd) v Kriel & Others (1999) 20 ILJ 2889 (LC) at 2890B.