Makhuduthamanga Local Municipality v South African Local Government Bargaining Council and Others (JS 575-16) [2024] ZALCJHB 77 (19 February 2024)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: JS 575/16

In the matter between:

MAKHUDUTHAMAGA LOCAL MUNICIPALITY Applicant

and

SOUTH AFRICAN LOCAL GOVERNMENT

BARGAINING COUNCIL

First Respondent

COMMISSIONER S K NTSUMELA

Second Respondent

IMATU obo ALFRED MALEKANA

Third Respondent

Considered in Chambers

Delivered: This judgment was handed down electronically by circulation to the parties' legal representatives by email and publication on the Labour Court’s website. The date and time for hand-down is deemed to be on 19 February 2024.

JUDGMENT – LEAVE TO APPEAL

MAHOMED, AJ

Introduction

[1] This an opposed application for leave to appeal against the order handed down by the court on 2 October 2023 save it would appear from the submissions on the order related to costs.

[2] The Applicant filed its written submissions on 11 November 2023 and opposition was filed by the Third Respondent on 20 November 2023.

[3] I received the application in mid-January 2024.

The grounds of appeal

[4] Leave to appeal is sought on the following grounds:

4.1. First, that the court erred in holding that the benchmark is negligence.

4.2. Second, that the court erred in finding that the principle stated in the Tuta[1] decision does not come to the assistance of the applicant as the factors which this court needs to consider in granting the retrieval

application were not made out in the papers in the first instance.

4.3. Third, that the court erred in finding that it would not be interest of justice to uphold the retrieval application having regard to the period since dismissal, the delay since filing of the review application and the interests of the dismissed employee in the finality of the proceedings.

4.4. Fourth, the court erred and misdirected itself in holding that there is no case made out for the revival/retrieval of the archived review application in all the circumstances.

4.5. Fifth, that the court erred in finding that the application for retrieval of the review application should be dismissed.

The test for leave to appeal

[5] It is trite that there is no automatic right of appeal against a judgment of the Labour Court. An applicant in an application for leave to appeal must satisfy this court that there is a reasonable prospect that another court would come to a different conclusion.[2]

[6] It is further trite that an applicant in an application for leave to appeal must convince the court a quo that it has reasonable prospects of success on appeal. Appeals should be limited to matters where there is a reasonable prospect that the factual matrix could receive a different treatment or where there is some legitimate dispute on the law.

[7] In Seatlholo and Others v Chemical Energy Paper Printing Wood and Allied Workers Union and Others[3] this Court confirmed that the test applicable in applications for leave to appeal is stringent and held as follows:

‘The traditional formulation of the test that is applicable in an application such as the present requires the court to determine

whether there is a reasonable prospect that another court may come to a different conclusion to that reached in the judgment that is sought to be taken on appeal. As the respondents observe, the use of the word “would” in s17(1)(a)(i) are indicative of a raising of the threshold since previously, all that was required for the applicant to demonstrate was that there was a reasonable prospect that another court might come to a different conclusion (see Daantjie Community and others v Crocodile Valley Citrus Company (Pty) Ltd and another (75/2008) [2015] ZALCC 7 (28 July 2015). Further, this is not a test to be applied lightly – the Labour Appeal Court has recently had occasion to observe that this court ought to be cautious when leave to appeal is granted, as should the Labour Appeal Court when petitions are granted. The statutory imperative of the expeditious resolution of labour disputes necessarily requires that appeals be limited to those matters in which there is a reasonable prospect that the factual matrix could receive a different treatment or where there is some legitimate dispute on the law (See the judgment by Davis JA in Martin and East (Pty) Ltd v NUM (2014) 35 ILJ 2399 (LAC), and also Kruger v S 2014 (1) SACR 369 (SCA) and the ruling by Steenkamp J in Oasys Innovations (Pty) Ltd v Henning and another (C 536/15, 6 November 2015)’.

[8] In deciding this application for leave to appeal, I am also guided by the dicta of the Supreme Court of Appeal where it held in Dexgroup (Pty) Ltd v Trustco Group International (Pty) Ltd and Others[4] that:

‘…The need to obtain leave to appeal is a valuable tool in ensuring that scarce judicial resources are not spent on appeals that lack merit. It should in this case have been deployed by refusing leave to appeal.’

This application

[9] I have considered the submissions made in support of the grounds for appeal and applying the applicable test, I am not convinced that the applicant has made out a case that there is a reasonable prospect that another court would come to a different conclusion. I say this for the following reasons.

9.1. No case is made out on the papers for a retrieval of the review application.

9.2. The Applicant concedes that it failed to outline the prospects of success in its application.

9.3. Gross negligence on the part of Ratale Mahifane Attorneys does not absolve the applicant.

9.4. The judgement in Tuta deals with the question of an error of law which was not raised as a ground of appeal and only in argument. The Constitutional Court found that on appeal it would consider the question of an error of law or an arguable point of law of general public importance where the interests of justice requires its intervention because of the risk of an unsound conviction: "…if the issue can be determined on the papers as they stand and no prejudice arises, this Court should not be precluded from considering

the matter"[5]. However, the principle in Tuta does not assist the applicant as the factors which this court was to consider in granting the revival application were not made out in the papers in the first instance.

9.5. I must point out that the applicant had the opportunity to justify the dismissal at arbitration. The Commissioner was however not satisfied that the dismissal was fair. The structure of the legislation is that this award of the Commissioner is to be set aside on review (not appeal) in limited circumstances and within a tight time frame. Arbitration and a limited right of review was intended to achieve expeditious dispute resolution. The superior courts have bemoaned what has become known as systemic delays in the finalisation of the cases in the field of employment law. This in time gave birth to the Practice Manual in this court which provides for the archival of review applications and allows a party met with an archival the right to seek a retrieval of such archived review application on separate application. This requires that a case is made out for a retrieval/revival on motion. The applicant failed in this regard in that it did not make out a case on the papers. That the Third Respondent was dismissed for alleged corruption does not bring this case within the remit of Tuta.

[10] There is no reasonable prospect that the factual matrix would receive a different treatment by the LAC or that there is a legitimate dispute on the interpretation of the law.

[11] I would have been persuaded that there was a legitimate dispute on the interpretation of the law had the papers before the court provided a basis for the advancement of such case. The papers were not so framed.

[12] In my view, the applicant on the whole has failed to make out a case for leave to appeal and the application stands to be dismissed.

[13] In the premises, I make the following order:

Order

1. The application for leave to appeal is dismissed.

2. There is no order for costs.

I.I Mahomed

Acting Judge of the Labour Court of South Africa

Submissions Drawn:

For the Applicant: Marweshe Attorneys, Mr M Marweshe

For the 3rd Respondent: IMATU, Mr. Manyikana

[1] 2023 (2) BCLR 179 (CC); [2022] ZACC 19.

[2] See Woolworths Ltd v Matthews [1999] 3 BLLR 288 (LC).

[3] (2016) 37 ILJ 1485 (LC) at para 3.

[4] 2013 (6) SA 520 (SCA) at para 24.

[5] Ibid at para 52.