Dwarsrivier Chrome Mine (Proprietary) Limited v Commission for Conciliation, Mediation and Arbitration and Others (JR 1113/18) [2021] ZALCJHB 172 (23 July 2021)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case No: JR 1113/18

In the matter between:

DWARSRIVIER CHROME MINE (PROPRIETARY) LIMITED

Applicant

and

COMMISSION FOR CONCILIATION, MEDIATION

AND ARBITRATION

First Respondent

DONALD KGALAKE NKADIMENG N. O

Second Respondent

REMEMBER MMBENGWA

Third Respondent

NATIONAL UNION OF MINEWORKERS

Fourth Respondent

Decided in Chambers:

Delivered: This judgment was handed down electronically by circulation to the parties' legal representatives by email, publication on the Labour Court’s website. The date and time for hand-down is deemed to be on 23 July 2021 at 15:00

JUDGMENT – LEAVE TO APPEAL

TLHOTLHALEMAJE, J

[1] Following an application by the Applicant to review and aside the arbitration award issued by the Second Respondent (Commissioner) in which it was found that the dismissal of the Third Respondent (Mr Mmbengwa) was substantively unfair, and in terms of which the Commissioner had ordered the reinstatement of Mmbengwa with back-pay in the amount of R1 200 817.50, the Court had on 1 May 2021 issued the following order;

[1] ‘The arbitration award issued by the Second Respondent under case number LP6433-17 dated 10 May 2018 is reviewed, and an addition is made to that award with an order that;

‘The retrospective reinstatement of Mr Tshengedzeni Remember Mmbengwa as ordered in paragraph 7.1 of the award shall also be with a final written warning to be placed on his record of employment valid for twelve (12) months)’

[2] There is no order as to costs’

[2] The Applicant has since sought leave to appeal against the whole of the judgment and order, which application Mmbengwa has opposed. The material background to the dispute between the parties, the grounds upon which a review was sought and the opposition thereto, are adequately set out in the judgment which is the subject of the leave to appeal, and I do not intent to repeat same in this judgment.

[3] It is equally not necessary to repeat the submissions made by or on behalf of the parties, other than to state that as correctly pointed out on behalf of Mmbengwa, at the core of the submissions in seeking leave to appeal are the Court’s findings and conclusions in regards to the appropriateness of the sanction of dismissal and the Court’s order as above, and the Court’s findings in regards to the issue of incompatibility. Effectively, the Applicant holds the view that the Court ought to have confirmed the dismissal of Mmbengwa on account of dereliction of duties.

[4] Mmbengwa in opposing the application submitted that the leave to appeal lacks merit and should be dismissed. Whether a basis has been laid to grant the leave to appeal ought to be considered within the context of the trite test laid out in such applications. Section 17 of the Superior Courts Act[1] provides that leave to appeal may only be given where the judge is of the opinion that the appeal would have a reasonable prospect of success; or there is some other compelling reason why the appeal should be heard, including conflicting judgments on the matter under consideration.

[5] Flowing from the above provisions, it is now settled that the threshold for the granting of leave to appeal is higher and more stringent than what it was previously, and that a greater measure of certainty of prospects of success on appeal is required than was previously the case[2].

[6] Having reflected on my judgment, the conclusions reached therein and the submissions made in opposition to the application, I am unpersuaded that any of the submissions made on behalf of the Applicant enable me to form the opinion that an appeal would have a reasonable prospect of success. I am equally not persuaded that the submissions made on behalf of the Applicant raise some or other compelling reason, or novel factual or legal material that deserves the attention of the Labour Appeal Court.

[7] I have further had regard to the requirements of law and fairness in respect of an order of costs, and I am of the view that such an order is not warranted in this case.

[8] Accordingly, the following order is made;

Order:

1. The application for leave to appeal is dismissed with no order as to costs.

___________________

Edwin Tlhotlhalemaje

Judge of the Labour Court of South Africa

[1] Act 10 of 2013

[2] See Caratco (Pty) Limited v Independent Advisory (Pty) Limited 2002 (5) SA (SCA) at para 2; Notshokovu v S [2016] ZASCA112 (7 September 2016) at para 2; Acting National Director of Public Prosecutions and others v Democratic Alliance in re: Democratic Alliance v Acting National Director of Public Prosecutions and others [19577/09] [2016] ZAGPHC489 (24 June 2016), at para 25; Mont Chevaux Trust v Goosen 2014 JDR 2325 (LCC) at para 6;