Komatsu South Africa (Pty) Ltd v NUMSA obo Mahlangu and Others (JR327/16) [2021] ZALCJHB 320 (30 September 2021)
The court found that the applicant failed to demonstrate reasonable prospects of success on appeal. There was no evidence provided to support the consistent application of the workplace rule relied upon for the dismissals. On the contrary, the evidence showed that the rule was regularly flouted without consequence,...
Source-derived case information.
- Citation
- [2021] ZALCJHB 320
- Parties
- Applicant: Komatsu South Africa (Pty) Ltd; Respondent: NUMSA obo Mahlangu & 4 Others; Respondent: Commissioner AP Venter N.O; Respondent: The Commission for Conciliation, Mediation and Arbitration
- Court
- Labour Court Johannesburg
- Jurisdiction
- South Africa
- Case Number
- JR327/16
- Procedural Posture
- Leave to Appeal / Application for Leave to Appeal Following Review Judgment
- Outcome
- Application for leave to appeal dismissed; condonation for late filing granted; no order as to costs.
- Judges
- H Cele
- Legal Topics
- Leave to Appeal, Condonation, Unfair Dismissal, Consistent Application of Rule
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Komatsu South Africa (Pty) Ltd
Applicant
NUMSA obo Mahlangu & 4 Others
Respondent
Commissioner AP Venter N.O
Respondent
The Commission for Conciliation, Mediation and Arbitration
Respondent
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Following Review Judgment
Legal Issues
- 1 Whether condonation for the late filing of the application for leave to appeal should be granted.
- 2 Whether the applicant has demonstrated reasonable prospects of success on appeal.
- 3 Whether the rule relied upon by the employer was consistently applied.
Ratio Decidendi
The court found that the applicant failed to demonstrate reasonable prospects of success on appeal. There was no evidence provided to support the consistent application of the workplace rule relied upon for the dismissals. On the contrary, the evidence showed that the rule was regularly flouted without consequence, and the employer failed to monitor or enforce compliance. The applicant's argument that it was unnecessary to prove consistent application prior to management intervention was rejected. As a result, the application for leave to appeal was dismissed on the merits.
Court Disposition
Application for leave to appeal dismissed; condonation for late filing granted; no order as to costs.
Orders
- Condonation for the late filing of this application is granted.
- The application for leave to appeal is dismissed.
Full Case Text
Judgment text and source record
36 paragraphs
IN THE LABOUR COURT OF SOUTH AFRICA,
JOHANNESBURG
Not Reportable
Case no: JR327/16
In the matter between:
KOMATSU SOUTH AFRICA (PTY) LTD Applicant
and
NUMSA OBO MAHLANGU & 4 OTHERS First
Respondent
COMMISSIONER AP VENTER N.O Second
Respondent
THE COMMISSION FOR CONCILIATION,
MEDIATION AND ARBITRATION Third
Respondent
Heard: 30 September 2021 [In Chambers]
Delivered: 30 September 2021
JUDGMENT
CELE J,
[1] The application for consideration is in terms of Section 166 of the Labour Relations Act[1] for leave to appeal against a decision of this Court. Condonation for the late filing of this application is also sought. This application was timeously served. The Applicant could not produce proof of timeous filing. Sufficient submissions are made for the granting of the condonation application. The appellation of the parties as used in the review application is retained here.
[2] The Applicant had sought to review and set aside the arbitration award issued by the Second Respondent as a Commissioner of the Third Respondent, dated 18 January 2016. The Commissioner found the dismissal of the five employees (individual employees) who were members of the First Respondent (the union) to have been unfair and he ordered their reinstatement.
[3] The success of this application lay in the Applicant demonstrating that there are good prospects that another court would come to a conclusion materially different to the one this Court reached. I bear in mind that in terms of Section 17 (1) (a) of the Superior Courts Act[2], leave to appeal may only be granted where the Judge concerned is persuaded 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”.
[4] The use of the word “would” in Section 17(1) (a) has been held to reflect a raising of the threshold for the grant of leave to appeal, which previously entailed a determination whether there was a reasonable prospect that another court might come to a different conclusion.[3] Leave to appeal must clearly therefore, not be easily granted.
[5] The grounds of appeal are about the merits of this matter and were well covered in the assailed judgment where this Court said:
“[40] I agree with the applicant that there was a rule; the rule was a valid or reasonable rule or standard; the employees were aware or could reasonably be expected to have been aware, of the rule or standard….. The employer should have demonstrated its intolerance of this kind of misbehaviour, particularly when mind is had to the allegation that the employer was condoning conduct until Mr du Plessis intervened.”
[6] It behoved the Applicant to have demonstrated the existence of evidence that the rule had been consistent applied. There is not an aorta of evidence pointed out for this application to have been given in support of the consistent application of the rule. On the contrary, there is undisputed evidence of the First Respondent that the rule was consistently flouted with impunity. Implicit in the consistent application of the rule is the putting in place of measures to detect its observance.
[7] Where an employer puts a rule in practice, there arises a duty to ensure its observance. Where monitoring is not enforced, the employer has itself to blame. Ignorance of infractions cannot be an excused when consistency in applying the rule is to be proved. Effectively, the Applicant’s submissions are that it was not necessary for it to prove that the rule was consistently applied before Mr du Plessis joined the Applicant. That averment cannot be true. Should it aver that it was necessary to prove this requirement, it has to concede that such evidence is lacking. This application therefore is lacking on the merits necessary for its success.
[8] Accordingly, the following order shall issue:
1. Condonation for the late filing of this application is granted.
2. The application for leave to appeal is dismissed.
3. No order as to costs is issued.
H Cele
Judge of the Labour Court of South Africa.
[1] Act Number 66 of 1995, the LRA.
[2] 10 of 2013.
[3] Daantjie Community and Others v Crocodile Valley Citrus Company (Pty) Ltd and Another (75/2008) [2015] ZALCC 7 (28 July 2015)