Davis v Bulldog Abrasives SA (Pty) Ltd and Others (J123/21) [2021] ZALCJHB 136 (1 July 2021)

In the labour court of South Africa, JOHANNESBURG

Not Reportable

case no: J123/21

In the matter between:

DAN LLEWELLYN DAVIES

Applicant

and

BULLDOG ABRASIVES SA (PTY) LTD) AND OTHERS

Respondents

Heard: 29 June 2021 (In Chambers)

Delivered: 01 July 2021 (via email to the parties)

Summary: Application for leave to appeal. The test remains that of reasonable prospects that another court will arrive at a different conclusion. Held: (1) The application for leave to appeal is dismissed with costs.

JUDGMENT-LEAVE TO APPEAL

MOSHOANA, J

Introduction

[1] This application involves two applications for leave to appeal. The first application is launched by Mr Davies, who seeks leave to appeal against the entire order made by this Court on 20 May 2021. The second application is launched by Wadeville Paints (Pty) Ltd (Wadeville), which seeks leave to appeal against order 3 made by this Court. Both applications are duly opposed by Bulldog Abrasives SA (Pty) Ltd (Bulldog).

Grounds for leave

[2] The grounds of Wadeville are limited to the fact that Bulldog had abandoned a relief against it in a replying affidavit and or orally in Court through its appointed counsel and despite that the Court made an order against it. Davies raised various grounds in terms of which this Court erred in its judgment. It is not necessary to repeat those grounds in this judgment.

Evaluation

[3] The test whether leave to appeal should be granted remains that spelled out in section 17(1) of the Superior Courts Act[1]. If an applicant fails to meet the test, like the applicant before me, leave should be refused.

[4] Applying the test in the section, there is no prospects that another Court will reach a different outcome with regard to Wadeville. Prior to the delivery of its judgment, Wadeville filed a notice stating that it shall abide by the decision of the Court. Where a party files a notice to abide, all it means is that such a party will comply with the judgment of the Court. Such a party perempts and waives its right to appeal against the order to be made by the Court. Wadeville contends that Bulldog abandoned a relief against it. For the purpose of this judgment it is unnecessary to consider whether a relief was abandoned or not. The rules of this Court in particular rule 13 provides that a party who initiated proceedings, in this case Bulldog, wants to withdraw the matter must deliver a notice of withdrawal as soon as possible. Thus in line with this rule, it would have been expected of Bulldog to withdraw against Wadeville by way of delivering a notice.

[5] In passing I do state that ordinarily, a party who serves a notice to abide does not file an affidavit. Strangely, Wadeville filed an affidavit and also briefed counsel to conduct a “watching brief”. An appeal Court is not to be burdened with matters which does not provide practical effect to the parties. For all the above reasons, Wadeville’s application for leave to appeal is refused.

[6] Turning to the application of Davies. Having considered the barrage of grounds presented and the legal submissions made, this Court reaches a conclusion that the test enunciated in section 17 has not been satisfied. Similarly, I am firmly of the view that there are no reasonable prospects of success.

[7] Accordingly, I conclude that the application should fail.

Order

[4] In the results, I make the following order:

1. The applications for leave to appeal are hereby dismissed.

2. The applicants for leave to appeal (Davies and Wadeville) are to pay the costs of this application jointly and severally the one paying absolving the other.

______________________

GN Moshoana

Acting Judge of the Labour Court of South Africa.

Appearances

None

[1] Act 10 of 2013. See Seathlolo and Another v CEPPWAWU and others [2016] 37 ILJ 1485 (LC)