ATC South Africa Wireless Infrastructure (PTY) Ltd v Masakale and Others [2022] ZALCJHB 376 (29 November 2022)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURGNot ReportableCase no: JR387/2019In the matter between:ATC SOUTH AFRICA WIRELESS INFRASTRUCTUREAPPLICANT(PTY) LTDandTEBOGO MASAKALEFIRST RESPONDENTCOMMISSION FOR CONCILIATIONSECOND RESPONDENTMEDIATION AND ARBITRATIONCOMMISSIONER: THOKOZANI XULUN. OTHIRD RESPONDENTDecided: In ChambersDelivered: 29 November 2022This judgement was handed down electronically by circulation to the legal representatives of the parties by email and publication on SAFLII. The date and time of the hand-down is deemed to be 10h00 on 29 November 2022.LEAVE TO APPEAL - JUDGMENTMATYOLO AJIntroduction[1]The first respondent seeks leave to appeal the whole judgement and order of this Court handed down on 13 September 2022.The first respondent seeks leave to appeal to the Labour Appeal Court, (LAC) firstly on the basis that there are reasonable prospects that the LAC would come to a different conclusion to the conclusion reached by this Court and secondly, that the factual matrix would receive a different treatment by the LAC.[2]The application for leave to appeal is premised on the grounds set out below.Grounds for leave to appeal[3]The first respondent contends that this Court erred in finding that it was not disputed that he, the First Respondent, instructed Ms Matsheke to use Maboho Consulting instead, the Court ought to have found that the First Respondent instructed Ms Matsheke to obtain quotations, including from Maboho Consulting without instructing her to use Maboho Consulting. The First Respondent approved the quotation from Maboho Consulting and subjected the purchase requisition to the procurement process and that Mr Tony Christodoulou (Christodoulou) approved the quotation and the service rendered by Maboho Consulting.[4]Secondly, this Court erred in finding that the Third Respondent (commissioner) seems to have found that there was no instruction and that the commissioner failed to make a final determination on this charge. Instead, this Court ought to have found that the commissioner found that there was an instruction as the commissioner appreciated that his duty was not solely to determine whether there was an instruction but also to determine, if guilt was established, the appropriateness of the sanction of dismissal having

regard to the issue of inconsistency. The commissioner found that there was an instruction from Mr Christodoulou.[5]Thirdly, this Court erred in finding that the basis for the finding that dismissal was too harsh was not explained by the commissioner. Instead, this Court ought to have found that the commissioner came to a decision that dismissal was too harsh based on inconsistency or the inconsistent application of discipline as both Ms Matsheke and Mr Christodoulou were not subjected to disciplinary processes.[6]Fourth, this Court erred in finding that the commissioner failed to make a determination on the charge of gross negligence before making findings on the issue of consistency and the appropriateness of dismissal as well as on finding that the commissioner ignored evidence that showed that the Applicant admitted to failing to properly check the invoices. Instead, this Court ought to have found that, notwithstanding the admission by the first respondent of an oversight in not checking an invoice accurately, (as opposed to invoices), dismissal as a sanction, was harsh, because, the first respondent conceded to committing negligence and by so doing showed remorse and because guilt was already established, the only thing left was the determination of the fair sanction having

regard to consistency. The commissioner found that the dismissal was substantively unfair because the first respondent was not the only person dealing with invoices. Regard must be had to the issue of consistency as it relates to Matsheke and Christodoulou and the fact that Christodoulou was also the ultimate and final approver at the end of the procurement process.[7]Fifth, this Court erred in finding that the decision arrived at by the commissioner was unreasonable and consequently erred in reviewing and setting the arbitration award aside and substituting it with an order that the dismissal was fair. Instead, this Court ought to have found that on the evidence placed before the commissioner, which evidence is included in the award, the finding that the dismissal of the first respondent was unfair, was unassailable on review.[8]Sixth, this Court erred in finding that on the evidence before the commissioner, the award returned by the commissioner is not one that a reasonable decision-maker could make because, the instruction was a one liner that was embedded in a request for approval, Christodoulou engaged the first respondent about pricing and did not mention an instruction not to use Maboho ever again, the pricing issue was resolved and Christodoulou approved payment and Ms Matsheke never informed the First Respondent of an instruction to never use Maboho again.[9]The issues canvassed in this application have been dealt with and are addressed in detail in the main judgement. I defer to those reasons. I, however, need to point out that in submitting that this Court ought to have found that the commissioner found that there was an instruction (paragraph 6.3, of the application for leave to appeal), the first respondent confirms that he was instructed not to use Maboho Consulting and despite being reminded of the instruction by Matsheke, the first respondent instructed Matsheke, his subordinate, to use Maboho Consulting anyway. This was the crux of the charge.[10]The first respondent appears to be indifferent to the fact that he was charged for his role in knowingly using Maboho Consulting despite having been instructed not to use them and despite being reminded by a subordinate.[11]It remains unclear how the first respondent’s admission of negligence by failing to check an invoice could lead to a conclusion of inconsistent application of discipline in relation to Matsheke and Christodoulou.Principles governing applications for leave to appeal[12]Applications for leave to appeal are governed by sections 16 and 17 of the Superior Courts Act[1]. Section 17 provides as follows:‘(1) Leave to appeal may only be given where the judge or judges concerned 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 decision 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 issues between the parties.’[13]InActing National Director of Public Prosecution & others v Democratic Alliance in Re: Democratic Alliance v NationalDirectorof Public Prosecutions & others,[2]Ledwaba DJP, writing for the full court, considered the test envisaged in section 17 of the Superior Courts Act, and referred to

the judgment inMont Chevaux Trust v Tina Goosen and Others[3],which held that –‘It is clear that the threshold for granting leave to appeal against a judgment of a High Court has been raised in the new Act. The former test whether leave to appeal should be granted was a reasonable prospect that another court might come to a different conclusion, seeVan Heerden v Conwright & others1985 (2) SA 342(T) at 343H. The use of the word “would” in the new statute indicates a measure of certainty that another court will differ from the court whose judgment is sought to be appealed against.’[14]InS v Smith,[4]the Supreme Court of Appeal held that the test of reasonable prospects of success postulates a dispassionate decision, based on

facts and the law that a Court of appeal could reasonably arrive at a conclusion that is different from that of the trial Court.[15]Therefore, to succeed an appellant must convince the Court that proper grounds exist for succeeding in the appeal and those grounds are not remote. In other words, there must be a sound, rational basis for the conclusion that there are prospects of success.[16]The LAC inMartin & East (Pty) Ltd v National Union of Mineworkers & Others[5]called for caution as to when leave to appeal is to be granted. It drew attention to the fact that the statutory imperatives of

expeditious and effective resolution of disputes necessarily require that appeals are limited to those matters in which there are

reasonable prospects that a factual matrix could receive a different treatment or there is some legitimate dispute on the law.[17]This matter does not raise any novel points of law that need to be dealt with by the LAC. I am also not persuaded that there are reasonable prospects that the factual matrix in this case might receive a different treatment on appeal.[18]Accordingly, the application for leave to appeal is dismissed with no order to costs.X MatyoloActing Judge of the Labour Court of South Africa[1]Act 10 of 2013.[2](19577/09) [2016] ZAGPPHC 489 (24 June 2016)at para 25.[3]2014 JDR 2325 (LCC) at para 6.[4]2010 (1) SACR 576 (SCA).[5](2014) 35 ILJ 2399 (LAC) at 2406B-E.

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: JR387/2019

In the matter between:

ATC SOUTH AFRICA WIRELESS INFRASTRUCTUREAPPLICANT

ATC SOUTH AFRICA WIRELESS INFRASTRUCTURE

APPLICANT

(PTY) LTD

and

TEBOGO MASAKALEFIRST RESPONDENT

COMMISSION FOR CONCILIATIONSECOND RESPONDENT

MEDIATION AND ARBITRATION

COMMISSIONER: THOKOZANI XULUN. OTHIRD RESPONDENT

N. O

Decided: In Chambers

Delivered: 29 November 2022

This judgement was handed down electronically by circulation to the legal representatives of the parties by email and publication on SAFLII. The date and time of the hand-down is deemed to be 10h00 on 29 November 2022.

LEAVE TO APPEAL - JUDGMENT

MATYOLO AJ

Introduction

[1]The first respondent seeks leave to appeal the whole judgement and order of this Court handed down on 13 September 2022.The first respondent seeks leave to appeal to the Labour Appeal Court, (LAC) firstly on the basis that there are reasonable prospects that the LAC would come to a different conclusion to the conclusion reached by this Court and secondly, that the factual matrix would receive a different treatment by the LAC.

[1]

The first respondent seeks leave to appeal the whole judgement and order of this Court handed down on 13 September 2022

.

The first respondent seeks leave to appeal to the Labour Appeal Court, (LAC) firstly on the basis that there are reasonable prospects that the LAC would come to a different conclusion to the conclusion reached by this Court and secondly, that the factual matrix would receive a different treatment by the LAC.

[2]The application for leave to appeal is premised on the grounds set out below.

[2]

The application for leave to appeal is premised on the grounds set out below.

Grounds for leave to appeal

[3]The first respondent contends that this Court erred in finding that it was not disputed that he, the First Respondent, instructed Ms Matsheke to use Maboho Consulting instead, the Court ought to have found that the First Respondent instructed Ms Matsheke to obtain quotations, including from Maboho Consulting without instructing her to use Maboho Consulting. The First Respondent approved the quotation from Maboho Consulting and subjected the purchase requisition to the procurement process and that Mr Tony Christodoulou (Christodoulou) approved the quotation and the service rendered by Maboho Consulting.

[3]

The first respondent contends that this Court erred in finding that it was not disputed that he, the First Respondent, instructed Ms Matsheke to use Maboho Consulting instead, the Court ought to have found that the First Respondent instructed Ms Matsheke to obtain quotations, including from Maboho Consulting without instructing her to use Maboho Consulting. The First Respondent approved the quotation from Maboho Consulting and subjected the purchase requisition to the procurement process and that Mr Tony Christodoulou (Christodoulou) approved the quotation and the service rendered by Maboho Consulting.

[4]Secondly, this Court erred in finding that the Third Respondent (commissioner) seems to have found that there was no instruction and that the commissioner failed to make a final determination on this charge. Instead, this Court ought to have found that the commissioner found that there was an instruction as the commissioner appreciated that his duty was not solely to determine whether there was an instruction but also to determine, if guilt was established, the appropriateness of the sanction of dismissal having

regard to the issue of inconsistency. The commissioner found that there was an instruction from Mr Christodoulou.

[4]

Secondly, this Court erred in finding that the Third Respondent (commissioner) seems to have found that there was no instruction and that the commissioner failed to make a final determination on this charge. Instead, this Court ought to have found that the commissioner found that there was an instruction as the commissioner appreciated that his duty was not solely to determine whether there was an instruction but also to determine, if guilt was established, the appropriateness of the sanction of dismissal having

regard to the issue of inconsistency. The commissioner found that there was an instruction from Mr Christodoulou.

[5]Thirdly, this Court erred in finding that the basis for the finding that dismissal was too harsh was not explained by the commissioner. Instead, this Court ought to have found that the commissioner came to a decision that dismissal was too harsh based on inconsistency or the inconsistent application of discipline as both Ms Matsheke and Mr Christodoulou were not subjected to disciplinary processes.

[5]

Thirdly, this Court erred in finding that the basis for the finding that dismissal was too harsh was not explained by the commissioner. Instead, this Court ought to have found that the commissioner came to a decision that dismissal was too harsh based on inconsistency or the inconsistent application of discipline as both Ms Matsheke and Mr Christodoulou were not subjected to disciplinary processes.

[6]Fourth, this Court erred in finding that the commissioner failed to make a determination on the charge of gross negligence before making findings on the issue of consistency and the appropriateness of dismissal as well as on finding that the commissioner ignored evidence that showed that the Applicant admitted to failing to properly check the invoices. Instead, this Court ought to have found that, notwithstanding the admission by the first respondent of an oversight in not checking an invoice accurately, (as opposed to invoices), dismissal as a sanction, was harsh, because, the first respondent conceded to committing negligence and by so doing showed remorse and because guilt was already established, the only thing left was the determination of the fair sanction having

regard to consistency. The commissioner found that the dismissal was substantively unfair because the first respondent was not the only person dealing with invoices. Regard must be had to the issue of consistency as it relates to Matsheke and Christodoulou and the fact that Christodoulou was also the ultimate and final approver at the end of the procurement process.

[6]

Fourth, this Court erred in finding that the commissioner failed to make a determination on the charge of gross negligence before making findings on the issue of consistency and the appropriateness of dismissal as well as on finding that the commissioner ignored evidence that showed that the Applicant admitted to failing to properly check the invoices. Instead, this Court ought to have found that, notwithstanding the admission by the first respondent of an oversight in not checking an invoice accurately, (as opposed to invoices), dismissal as a sanction, was harsh, because, the first respondent conceded to committing negligence and by so doing showed remorse and because guilt was already established, the only thing left was the determination of the fair sanction having

regard to consistency. The commissioner found that the dismissal was substantively unfair because the first respondent was not the only person dealing with invoices. Regard must be had to the issue of consistency as it relates to Matsheke and Christodoulou and the fact that Christodoulou was also the ultimate and final approver at the end of the procurement process.

[7]Fifth, this Court erred in finding that the decision arrived at by the commissioner was unreasonable and consequently erred in reviewing and setting the arbitration award aside and substituting it with an order that the dismissal was fair. Instead, this Court ought to have found that on the evidence placed before the commissioner, which evidence is included in the award, the finding that the dismissal of the first respondent was unfair, was unassailable on review.

[7]

Fifth, this Court erred in finding that the decision arrived at by the commissioner was unreasonable and consequently erred in reviewing and setting the arbitration award aside and substituting it with an order that the dismissal was fair. Instead, this Court ought to have found that on the evidence placed before the commissioner, which evidence is included in the award, the finding that the dismissal of the first respondent was unfair, was unassailable on review.

[8]Sixth, this Court erred in finding that on the evidence before the commissioner, the award returned by the commissioner is not one that a reasonable decision-maker could make because, the instruction was a one liner that was embedded in a request for approval, Christodoulou engaged the first respondent about pricing and did not mention an instruction not to use Maboho ever again, the pricing issue was resolved and Christodoulou approved payment and Ms Matsheke never informed the First Respondent of an instruction to never use Maboho again.

[8]

Sixth, this Court erred in finding that on the evidence before the commissioner, the award returned by the commissioner is not one that a reasonable decision-maker could make because, the instruction was a one liner that was embedded in a request for approval, Christodoulou engaged the first respondent about pricing and did not mention an instruction not to use Maboho ever again, the pricing issue was resolved and Christodoulou approved payment and Ms Matsheke never informed the First Respondent of an instruction to never use Maboho again.

[9]The issues canvassed in this application have been dealt with and are addressed in detail in the main judgement. I defer to those reasons. I, however, need to point out that in submitting that this Court ought to have found that the commissioner found that there was an instruction (paragraph 6.3, of the application for leave to appeal), the first respondent confirms that he was instructed not to use Maboho Consulting and despite being reminded of the instruction by Matsheke, the first respondent instructed Matsheke, his subordinate, to use Maboho Consulting anyway. This was the crux of the charge.

[9]

The issues canvassed in this application have been dealt with and are addressed in detail in the main judgement. I defer to those reasons. I, however, need to point out that in submitting that this Court ought to have found that the commissioner found that there was an instruction (paragraph 6.3, of the application for leave to appeal), the first respondent confirms that he was instructed not to use Maboho Consulting and despite being reminded of the instruction by Matsheke, the first respondent instructed Matsheke, his subordinate, to use Maboho Consulting anyway. This was the crux of the charge.

[10]The first respondent appears to be indifferent to the fact that he was charged for his role in knowingly using Maboho Consulting despite having been instructed not to use them and despite being reminded by a subordinate.

[10]

The first respondent appears to be indifferent to the fact that he was charged for his role in knowingly using Maboho Consulting despite having been instructed not to use them and despite being reminded by a subordinate.

[11]It remains unclear how the first respondent’s admission of negligence by failing to check an invoice could lead to a conclusion of inconsistent application of discipline in relation to Matsheke and Christodoulou.

[11]

It remains unclear how the first respondent’s admission of negligence by failing to check an invoice could lead to a conclusion of inconsistent application of discipline in relation to Matsheke and Christodoulou.

Principles governing applications for leave to appeal

[12]Applications for leave to appeal are governed by sections 16 and 17 of the Superior Courts Act[1]. Section 17 provides as follows:

[12]

Applications for leave to appeal are governed by sections 16 and 17 of the Superior Courts Act[1]. Section 17 provides as follows:

‘(1) Leave to appeal may only be given where the judge or judges concerned are of the opinion that –

(1) Leave to appeal may only be given where the judge or judges concerned are of the opinion that –

(a)(i) the appeal would have a reasonable prospect of success; or

(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 decision sought on appeal does not fall within the ambit of section 16 (2) (a); and

b

a

(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 issues between the parties.’

[13]InActing National Director of Public Prosecution & others v Democratic Alliance in Re: Democratic Alliance v NationalDirectorof Public Prosecutions & others,[2]Ledwaba DJP, writing for the full court, considered the test envisaged in section 17 of the Superior Courts Act, and referred to

the judgment inMont Chevaux Trust v Tina Goosen and Others[3],which held that –

[13]

In

Acting National Director of Public Prosecution & others v Democratic Alliance in Re: Democratic Alliance v National

Director

of Public Prosecutions & others,[2]Ledwaba DJP, writing for the full court, considered the test envisaged in section 17 of the Superior Courts Act, and referred to

the judgment in

Mont Chevaux Trust v Tina Goosen and Others

,

which held that –

‘It is clear that the threshold for granting leave to appeal against a judgment of a High Court has been raised in the new Act. The former test whether leave to appeal should be granted was a reasonable prospect that another court might come to a different conclusion, seeVan Heerden v Conwright & others1985 (2) SA 342(T) at 343H. The use of the word “would” in the new statute indicates a measure of certainty that another court will differ from the court whose judgment is sought to be appealed against.’

It is clear that the threshold for granting leave to appeal against a judgment of a High Court has been raised in the new Act. The former test whether leave to appeal should be granted was a reasonable prospect that another court might come to a different conclusion, seeVan Heerden v Conwright & others1985 (2) SA 342(T) at 343H. The use of the word “would” in the new statute indicates a measure of certainty that another court will differ from the court whose judgment is sought to be appealed against.’

It is clear that the threshold for granting leave to appeal against a judgment of a High Court has been raised in the new Act. The former test whether leave to appeal should be granted was a reasonable prospect that another court might come to a different conclusion, see

Van Heerden v Conwright & others

1985 (2) SA 342(T) at 343H. The use of the word “would” in the new statute indicates a measure of certainty that another court will differ from the court whose judgment is sought to be appealed against.’

1985 (2) SA 342

[14]InS v Smith,[4]the Supreme Court of Appeal held that the test of reasonable prospects of success postulates a dispassionate decision, based on

facts and the law that a Court of appeal could reasonably arrive at a conclusion that is different from that of the trial Court.

[14]

S v Smith,

[4]the Supreme Court of Appeal held that the test of reasonable prospects of success postulates a dispassionate decision, based on

facts and the law that a Court of appeal could reasonably arrive at a conclusion that is different from that of the trial Court.

[15]Therefore, to succeed an appellant must convince the Court that proper grounds exist for succeeding in the appeal and those grounds are not remote. In other words, there must be a sound, rational basis for the conclusion that there are prospects of success.

[15]

Therefore, to succeed an appellant must convince the Court that proper grounds exist for succeeding in the appeal and those grounds are not remote. In other words, there must be a sound, rational basis for the conclusion that there are prospects of success.

[16]The LAC inMartin & East (Pty) Ltd v National Union of Mineworkers & Others[5]called for caution as to when leave to appeal is to be granted. It drew attention to the fact that the statutory imperatives of

expeditious and effective resolution of disputes necessarily require that appeals are limited to those matters in which there are

reasonable prospects that a factual matrix could receive a different treatment or there is some legitimate dispute on the law.

[16]

The LAC in

Martin & East (Pty) Ltd v National Union of Mineworkers & Others

[5]called for caution as to when leave to appeal is to be granted. It drew attention to the fact that the statutory imperatives of

expeditious and effective resolution of disputes necessarily require that appeals are limited to those matters in which there are

reasonable prospects that a factual matrix could receive a different treatment or there is some legitimate dispute on the law.

[17]This matter does not raise any novel points of law that need to be dealt with by the LAC. I am also not persuaded that there are reasonable prospects that the factual matrix in this case might receive a different treatment on appeal.

[17]

This matter does not raise any novel points of law that need to be dealt with by the LAC. I am also not persuaded that there are reasonable prospects that the factual matrix in this case might receive a different treatment on appeal.

[18]Accordingly, the application for leave to appeal is dismissed with no order to costs.

[18]

Accordingly, the application for leave to appeal is dismissed with no order to costs.

X Matyolo

Acting Judge of the Labour Court of South Africa

[1]Act 10 of 2013.

Act 10 of 2013.

[2](19577/09) [2016] ZAGPPHC 489 (24 June 2016)at para 25.

(19577/09) [2016] ZAGPPHC 489 (24 June 2016)

at para 25.

[3]2014 JDR 2325 (LCC) at para 6.

2014 JDR 2325 (LCC) at para 6.

[4]2010 (1) SACR 576 (SCA).

2010 (1) SACR 576 (SCA).

[5](2014) 35 ILJ 2399 (LAC) at 2406B-E.

(2014) 35 ILJ 2399 (LAC) at 2406B-E.