Kirk Marketing v Commission for Conciliation, Mediation and Arbitration and Others (JR 1673/16) [2022] ZALCJHB 136 (19 May 2022)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: JR 1673/16

In the matter between:

KIRK MARKETING

Applicant

and

COMMISSION FOR CONCILIATION,

MEDIATION AND ARBITRATION

First Respondent

L MATLALA N.O

Second Respondent

NUMSA OBO N. MUKWEVHO

Third Respondent

Decided: In Chambers

Delivered: This judgment was handed down electronically by circulation to the parties' legal representatives by email. The date for hand-down is deemed to be 19 May 2022

JUDGMENT - APPLICATION FOR LEAVE TO APPEAL

MAHOSI J

Introduction

[1] The applicant brought an application for leave to appeal against the whole judgment of this Court that was handed down on 24 February 2022 in terms of which the Court dismissed the application to review and set aside the arbitration award dated 11 August 2016 issued by the second respondent, under the auspices of the first respondent, under

case number GAJB 3849-16 with no order as to costs. The application is opposed by the third respondent.

Submissions

[2] The applicant raised a number of grounds, but in essence it submitted that the Court failed to correctly consider and analyse the various submissions made in the applicant’s Heads of Arguments, which provides in depth analysis of the matter displaying the precise reasons for the employee’s dismissal.

[3] Further that the Court failed to compare the outcome of the second respondent with the detailed submissions made in its pleadings and the heads of arguments. In particular, the applicant submitted, inter alia, that the Court failed to attach weight to the applicant’s claim supported by evidence that purchases of alcohol were made at two different locations at more or less the same time, which implicates the third respondent and proves on balance of probabilities his direct involvement in the misappropriation of company funds.

[4] It is the applicant’s further submission that the Court accepted the findings and conclusion of the second respondent without considering the applicant’s submissions and analysing the evidence objectively. According to the applicant, the Court failed to provide clarity as to why these findings were accepted as is, especially in comparison to the evidence submitted by the applicant.

[5] Furthermore, it is the applicant’s submission that the Court did not appropriately address many material contradictions emanating from the employee’s case in the judgment and committed a gross irregularity in considering the facts of the matter from a completely objective perspective.

[6] Lastly, the applicant submitted that exceptional circumstances exist for the leave to appeal to be granted, considering the lack of appropriate analysis in the relevant judgment and specifically due to lack of consideration on the aspect of retrospective reinstatement given the various delays caused by parties in this matter. According

to the applicant, lack of analysis of various aspects would serve as compelling reasons that justifies the granting of leave to appeal.

[7] In opposing this application, the third respondent submitted that this application was not bona fide, meritless and served as a delaying tactic by the applicant in a matter where he was dismissed 7 years ago, which undermines justice and his rights.

[8] The third respondent further submitted that the applicant adopted an incorrect approach and conflated the test for review that is reasonableness with that of an appeal, which is correctness. Furthermore, the third respondent submitted that it is only the findings made by the Court regarding such reasonableness that can form the subject matter of the appeal not the correctness of the findings made by the second respondent.

[9] According to the third respondent the applicant misconstrued the nature of the relief awarded, as retrospective reinstatement in instances where a finding of substantive unfairness was made was a competent relief in terms of the LRA. It was for the above reason that the third respondent submitted that it would not be in the interests of justice to grant leave to appeal and that the application ought to be dismissed with costs and that.

Applicable law and analysis

[10] In determining whether to grant an application for leave to appeal, the traditional test is whether there is a reasonable prospect that another court may come to a different conclusion.[1] In terms of section 166(1) of the Labour Relations Act (LRA),[2] a party to proceedings before the Labour Court, may apply to the Labour Court for leave to appeal to the Labour Appeal Court (LAC)

against any final judgment or final order of the Labour Court. Section 17 of the Superior Court Act,[3] which applies to the Labour Court, regulates instances in which the appeal may be granted. Section 17(1) provides as follows:

‘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.’

[11] Section 16(2)(a) of the Superior Court Act provides as follows:

‘(i) When at the hearing of the appeal the issues are of such a nature that the decision sought will have no practical effect, the appeal may be dismissed on this ground alone.

(ii) save under exceptional circumstances, the question whether the decision would have no practical effect or result is to be determined without reference to any consideration of costs.’

[12] In Martin and East (Pty) Ltd v National Union of Mineworkers and Others,[4] the LAC made it clear that leave to appeal is not simply there for the taking, and that this Court must be cautious in granting leave to appeal and in assessing the requirement of the prospect of success. In this case, the Court stated as follows:

‘…The Labour Relations Act was designed to ensure an expeditious resolution of industrial disputes. This means that courts, particularly courts in the position of the court a quo, need to be cautious when leave to appeal is granted, as should this Court when petitions are granted.

There are two sets of interests to consider. There are the interests of the parties such as appellant, namely who are entitled to have their rights vindicated, if there is a reasonable prospect that another court might come to a different conclusion. There

are also the rights of employees who land up in a legal “no-man’s-land” and have to wait years for an appeal (or two) to be prosecuted.

This was a case, which should have ended in the labour court. This matter should not have come to this court. It stood to be resolved on its own facts. There is no novel point of law to be determined nor did the Court a quo misinterpret existing law. There was no incorrect application of the facts; in particular the assessment of the factual justification for the dismissals/alternative sanctions.

I would urge labour courts in future to take great care in ensuring a balance between expeditious resolution of a dispute and the rights of the party, which has lost. If there is a reasonable prospect that the factual matrix could receive a different treatment or there is a legitimate dispute on the law that is different. But this kind of case should not reappear continuously in courts on appeal after appeal, subverting a key purpose of the Act, namely the expeditious resolution of labour disputes.’[5]

[13] In the current matter, I find that there is no merit in the applicant’s submissions. It is my view that the second respondent dealt with substantial merits of the dispute between the parties, took all the facts and the evidence presented before him into consideration and arrived at a reasonable conclusion. I am, therefore, not persuaded that there are reasonable prospects that the Labour Appeal Court could come to a different conclusion.

[14] Accordingly, the following order is made:

Order

1. The application for leave to appeal is dismissed.

2. There is no order as to costs.

D. Mahosi

Judge of the Labour Court

[1] See Karbochem Sasolburg (A Division of Sentrachem Ltd) v Kriel and Others (1999) 20 ILJ 2889 (LC) at 2890B; Ngcobo v Tente Casters (Pty) Ltd (2002) 23 ILJ 1442 (LC) at 1443 para 2 and Tsotetsi v Stallion Security (Pty) Ltd (2009) 30 ILJ 2802 (LC) at 2804 para 14.

[2] Act 66 of 1995 as amended.

[3] Act 10 of 2013, as amended.

[4] (2014) 35 ILJ 2399 (LAC).

[5] At 2405-2406.