Asia Minerals South Africa (PTY) LTD and Another v Commission for Conciliation Mediation and Arbitration and Others (JR803/20) [2022] ZALCJHB 105 (30 August 2022)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: JR803/20

In the matter between:

ASIA MINERALS SOUTH AFRICA (PTY) LTD

First Applicant

KUDUMANE MANGANESE RESOURCES (PTY) LTD

Second Applicant

and

COMMISSION FOR CONCILIATION

MEDIATION AND ARBITRATION

First Respondent

MOHAMED RAFFEE N. O

Second Respondent

COENRAAD JACOBUS MOOLMAN

Third Respondent

Heard: In Chambers

Delivered: 30 August 2022

JUDGMENT – LEAVE TO APPEAL

DEANE, AJ

Introduction

[1] On 18 July 2022 this Court delivered a judgment and order in terms of which the ruling issued by the Second Respondent on 27 February 2020 under case number GAJB10352-19 in which the applicant was ordered to discover documents sought by the Third Respondent for the purpose of arbitration, was reviewed and set aside. The ruling was substituted by the following: ‘The documents as sought to be discovered by the Applicants are not subject to disclosure in terms of rule 29’.

[2] The Third Respondent has since filed an application for leave to appeal against the judgment and order and which the Applicant has opposed.

[3] The principles applicable to applications for leave to appeal are trite. This Court must determine whether there is a reasonable prospect that another court (the Labour Appeal Court), would come to a different conclusion to that reached in the judgment that is sought to be taken on appeal.[1] The test whether to grant leave to appeal is stringently applied in the light of the high threshold set by section 17(1) of the Superior Courts Act.[2]

[4] The Labour Appeal Court (LAC) has further cautioned that 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.[3]

[5] At the core of the Third Respondent’s application is a dispute regarding the request for the discovery of certain documents which documentation the Third Respondent intended to use in support of his case at the arbitration relating to the termination of his services based on the non-renewal of his contract of employment. The full

background to the application is set out in my judgment and no purpose would be served by repeating same here. The issues raised in the leave to appeal and the grounds relied upon have been dealt with in that judgment. Furthermore, the Applicant has addressed each ground upon which leave to appeal is sought.

[6] I therefore do not intend to deal with each of the grounds of appeal separately for the reasons mentioned above, however I will do so to a limited extent merely to illustrate that the application for leave to

appeal is without merit. I will also not reiterate my reasons for dismissing the review application as this is dealt with in detail in the judgment.

[7] Regarding the ground of appeal relating to rule 29 of the Rules for the Conduct of Proceedings before the Commission for Conciliation, Mediation and Arbitration (CCMA)[4], the Third Respondent avers that “Rule 29 of the Rules of the CCMA came into force on 1 March 2020, subsequent to the Commissioner making a ruling”. This and the subsequent submissions[5] on rule 29 show a lack of understanding of the legal position. Rule 29 has been in effect and existence long before the decision of the Commissioner on 1 March 2020 and indeed the rule was later subject to an amendment in 2019.[6] The discovery of documents in proceedings in the CCMA is clearly regulated by rule 29 even prior to the Commissioners’ ruling

and rule 29 therefore remains applicable in the matter.

[8] In light of the above considerations and applicable legal principles, having reflected on my judgment, and further having had regard to the detailed and lengthy submissions for and against leave to appeal, there is no basis for any conclusion to be reached that the factual matrix of this case will receive a different treatment from the LAC. There are no legitimate disputes on the law raised nor are there any novel issues that deserve the attention of the LAC. Accordingly, the leave to appeal enjoys no reasonable prospects of the LAC coming to any different conclusion to that arrived in my judgment and the application must therefore fail.

[9] In the results, the following order is made:

Order

1. The application for leave to appeal is dismissed.

2. There is no order as to costs.

T. Deane

Acting Judge of the Labour Court of South Africa

[1] See: Section 17 of the Superior Court Act 10 of 2013, which provides: ‘(1) 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.’

[1] See: Section 17 of the Superior Court Act 10 of 2013, which provides:

‘(1) 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.’

[2] See: The Mont Chevaux Trust v Tina Goosen and 18 others 2014 JDR 2325 (LCC) at para 6; Mgezeni Gasbat Nxumalo v the National Bargaining Council for the Chemical Industry (NBCCI) and Others Unreported decision. Case number: JR1170 /2013. Delivered: 15 June 2016; Nannen and Others vs Momentum and Others (6796/05, 2275/05) (2017] ZAGPPHC 433 (14 June 2017).

[3] Martin and East (Pty) Ltd v NUM (2014) 35 ILJ 2399 (LAC).

[4] Third Respondent’s Submissions for Leave to Appeal Page 6, para 4.

[5] Third Respondent’s Submissions for Leave to Appeal pgs 6-7.

[6] Previously rule 29 merely provided that a commissioner might at any time after the request for arbitration make an order as to the disclosure of relevant documents and that the parties might agree on the disclosure of documents. In what can be described as a positive development, rule 29(1) has been amended and it now reads that at any time after the request for arbitration, ‘but not less than fourteen (14) days prior to the hearing date, either party may request the other party to disclose any documents or material relevant to the dispute’.