Assmang (Pty) Ltd t/a Beeshoek Mine v Commission for Conciliation Mediation and Arbitration and Others (JR2582/17) [2023] ZALCJHB 8 (17 January 2023)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: JR 2582/17

In the matter between:

ASSMANG (PTY) LTD t/a BEESHOEK MINE Applicant

and

COMMISSION FOR CONCILIATION, MEDIATION

AND ARBITRATION

First

Respondent

DAVID PIETERSEN N.O. Second

Respondent

JOHN MKHAFU Third

Respondent

THE ASSOCIATION OF MINEWORKERS

AND CONSTRUCTION

UNION (“AMCU”) Fourth

Respondent

Heard: Considered in Chambers

Delivered: 17January 2023

Summary: Application for leave to appeal – no proper case for leave to appeal made out – application dismissed with no order as to cost.

JUDGMENT

LANCASTER, AJ

Introduction

[1] The third and fourth respondents apply for leave to appeal against paragraph 74.1 of the order of this Court wherein I granted the Applicant’s application for review and substituted the award of the arbitrator with a finding that the dismissal of the third respondent had been substantively fair.

[2] The review application was argued before me on 15 January 2021 and in my judgment delivered on 26 November 2021, I granted the review application with no order as to costs.

[3] The application for leave to appeal is opposed by the applicant, who has filed its submissions in relation to the grounds raised by the third and fourth respondents in their application and expanded on in their submissions.

[4] The below judgment has been made in chambers in terms of clause 15.2 of the Practice Manual[1] .

[5] In doing so, I have considered the grounds of appeal of the third and fourth respondents as recorded in the Application for Leave to Appeal and the respective submissions filed by the parties.

Leave to appeal

[6] In terms of Section 17(1)(a) of the Superior Courts Act[2] , in coming to a decision on whether leave to appeal should be granted to the Labour Appeal Court from this Court, I must be determined whether:

‘(a) the appeal would have reasonable prospects of success; or

(b) there is some other compelling reason why the appeal should be heard, including conflicting judgments on the matter under consideration…’

[7] I understand this test to mean that there must be a sound rational basis for finding that there are prospects that a different court will come to a different finding than those of this Court.

[8] The third and fourth respondent’s grounds for their application for leave to appeal seem to be centred around my findings that:

8.1 the Commissioner didn’t have regard to the element of dishonesty present in charges 1 and 3, for which the third respondent was found guilty when he came to a finding on the appropriate sanction; and

8.2 dismissal was an appropriate sanction for the charges the third respondent had been found guilty of.

9 The grounds of appeal, as they have been addressed by the third and fourth respondents, motivate why there was no dishonesty present in the third respondent’s conduct.

10 In this, it seems to me that the third and fourth respondents elevate my findings to independent findings of fact on the charges against the third respondent. This is incorrect.

11 The second respondent had already found the third respondent guilty of spreading false information, which finding did not form part of the review grounds of the applicant, no cross review was brought in respect thereof, nor did the Court take issue with those findings.

12 What was considered, however, is that after having found the third respondent guilty of the conduct complained of by the applicant, the second respondent did not have regard to the dishonesty of which he had found the third respondent guilty in coming to his decision on an appropriate sanction.

13 This much was stated by this Court when it found that the second respondent was misguided in solely applying the questions formulated by him to the question of the appropriateness of sanction, as simply being a shop steward and acting as such, does not justify dishonest conduct.

14 This is the premise on which the Court found the ultimate outcome of the award unreasonable and reviewable and the basis for the Court’s findings.

15 Further to the above, the second ground to the application for leave to appeal, in my view, is equally misdirected. It was never suggested by this Court that dismissal automatically followed because of the elements of dishonesty, but that dismissal appeared to be the appropriate sanction given the evidence and totality of the circumstances.

16 In the premise, I do not believe that the third and fourth respondents have put forward sufficient grounds to convince me that there exist reasonable prospects that a different court would come to different findings than those arrived at by this Court and the application for leave to appeal must therefore fail.

17 As to costs, the interests of justice, in my view, do not support the granting of costs in these circumstances and therefore I make no order as to costs.

18 In the premises, I make the following order:

Order

1. The third and fourth respondents’ application for leave to appeal is dismissed.

2. There is no order as to costs.

S Lancaster

Acting Judge of the Labour Court of South Africa

Appearances:

For the Applicant: M

Van As

Instructed by:

Cliffe

Dekker Hofmeyr Inc.

For the Third and Fourth Respondents P

Moll

Instructed by:

LDA

Attorneys Inc.

[1] Practice Manual of the Labour Court of South Africa, effective 1 April 2013.

[2] Act 10 of 2013.