Liesering v City of Ekurhuleni Metropolitan Municipality and Others (J769/22) [2024] ZALCJHB 246 (24 June 2024)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: J 769/22

In the matter between:

YUL CRAIG LIESERING Applicant

and

CITY OF EKURHULENI METROPOLITAN MUNICIPALITY First Respondent

CITY MANAGER, CITY OF EKURHULENI METROPOLITAN

MUNICIPALITY

Second Respondent

DIRECTOR: SPECIALISED SERVICES

Third Respondent

COMMANDER OF SWAT INTERVENTION UNIT

Fourth Respondent

Delivered: This judgment was handed down electronically by circulation to the parties' representatives through email. The date for hand-down is deemed to be 24 June 2024.

JUDGMENT

MAHOSI, J

[1] This is an opposed application for leave to appeal against the ex-tempore judgment and order in which this Court struck the applicant’s matter off the roll for lack of urgency with costs.

[2] The traditional test for determining whether to grant an application for leave to appeal is whether there is a reasonable prospect that another court will reach a different conclusion.[1] In terms of section 166(1) of the Labour Relations Act[2] (LRA), 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 order of the Labour Court.

[3] Section 17 of the Superior Court Act,[3] which applies to the Labour Court and 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 do 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.’

[4] 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.’

[5] 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]

[6] In this matter, the applicant premised his application on the ground that this Court erred in finding that he failed to make out a case for urgency. The respondents contended that a different Court would not come to a different conclusion on the urgency or substance of the application.

[7] Considering the grounds upon which leave to appeal is sought, the parties’ written submissions and the test for leave to appeal, this Court is not persuaded that there are reasonable prospects of a successful appeal. As such, this application is without merit and ought to be dismissed.

Costs

[8] Regarding costs, the requirements of law and fairness dictate that there should be no order as to costs.

[9] 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 of South Africa

[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.

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

[5] Ibid at 2405-2406.