Mathole v The Governing Body of the Commission for Conciliation, Mediation and Arbitration (CCMA) and Others (J 2417/18) [2022] ZALCJHB 235 (12 August 2022)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: J 2417/18

In the matter between:

EPHRAIM MATHOLE

Applicant

and

THE GOVERNING BODY OF THE COMMISSION FOR

CONCILIATION, MEDIATION AND ARBITRATION (CCMA) First Respondent

THE SOUTH AFRICAN NATIONAL BIODIVERSITY

INSTITUTE (SANBI)

Second Respondent

ANTI-CORRUPTION TASK TEAMS OF THE HAWKS

Third Respondent

Decided: In Chambers

Delivered: 12 August 2022

(This judgment was handed down electronically by circulation to the parties' representatives by email. The date and time for hand-down is deemed to be 12 August 2022.)

JUDGMENT – LEAVE TO APPEAL

MAHOSI. J

Introduction

[1] On 24 June 2022, the applicant brought an application for leave to appeal against the Order of this Court that was handed down on 13 May 2022 and the reasons for the order that were delivered on 9 June

2022, in terms of which the Court strucked off the application from the roll for lack of urgency with costs.

[2] Following the launching of this application, the Court issued the directive to the parties on 27 June 2022 for them to file their submissions in terms of Rule 30(3A) of the Rules[1] read with 15.2 of the Practice Manual of the Labour Court[2].

[3] In response, the applicant’s submissions were emailed to the Court on 1 July 2022 and were filed with the Court on 18 July 2022. The first respondent filed its submissions to the Court through email

on 8 July 2022, whilst the second respondent filed with the Court on 8 July 2022. The Court is indebted to the parties for filing the submissions.

Submissions

[4] The basis on which the applicant brought this application was that the Court erred and misdirected itself in that his application was urgent and the respondents continue with the same unlawful activities

prohibited and sanctioned by the Court through an agreement dated 30 January 2019 that was made an order of Court, which was allegedly not complied with.

[5] The applicant further submitted that he has a pending unopposed contempt application dated 23 February 2020 that was filed on 24 February 2020 and that is to be heard in the normal cause due to the coronavirus pandemic in 2020 and 2021.

[6] It is the applicant’s submission that the Court erred and misdirected itself by considering the two answering affidavits from the respondents while the applicant had properly filed and served preliminary points in the application that he brought in terms of Rule 11 read with Rule 7 of the Uniform Court Rules, in terms of which he challenged the lateness of the two answering affidavits and the authority of the deponents thereto.

[7] The applicant further submitted that the Court order dated 13 May 2022 and the reasons for the order dated 9 June 2022 were improperly granted as the respondents were not properly before the Court on 13 May 2022. The basis of this submission was that the law firms representing both respondents were allegedly appointed illegally with the intention to defeat the ends of justice.

[8] According to the applicant, the Court ought to have not allowed the person whose authority to act was challenged to represent the respondents and the Court ought to have postponed the matter to allow such a person to file additional papers.

[9] The applicant submits that he could not file a replying affidavit because of the defects contained in the two answering affidavits, which had to be dealt with first. In this regard, the applicant submitted that the Court committed serious irregularities and injustice.

[10] The applicant is of the view that another court can come to a different conclusion, taking into account the serious injustices and irregularities that occurred in Court on 13 May 2022, as well as the failure by this Court to address preliminary points that he raised in his Rule 11 application.

[11] The first respondent opposed this application on three grounds. The first ground was that the applicant has failed to satisfy the onerous test for leave to appeal as he failed to demonstrate that there was a realistic possibility of another court coming to a different conclusion in respect of the findings of fact identified in his application for leave to appeal.

[12] In addition, the first respondent submitted that there was nothing in this application to suggest that the applicant relies on section

17(1)(a)(ii) of the Superior Courts Act[3] which provides that the applicayion for leave to appeal may be granted, notwithstanding the Court’s view of the prospects of success, where there are nonetheless “compelling” reasons why an appeal should be heard.

[13] Further that the applicant failed to make out a cogent case that requires the leave to appeal to be granted only on those limited 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.

[14] The second ground was that the applicant is re-arguing the urgent application as he relies on the arguments already made in that application and has failed to advance any new grounds.

[15] The third ground was that the order is not appealable because on the applicant’s own version, his urgent application was in fact on an interlocutory basis and that the Order granted by the Court dismissing the meritless interlocutory urgent application did not dispose of any issue or portion of any issue in the main proceedings. Further that in dismissing the applicant’s interlocutory urgent application and in determining whether the matter ought to be heard

on an urgent basis, the Court was exercising its discretion, which cannot be interfered with by the Court of appeal.

[16] The second respondent submitted that the applicant continues to argue urgency on appeal on the basis that there has been various non-compliance with the Order over the course of 3 years, but fails to demonstrate why he did not react to any of the earlier alleged instances of non-compliance that he raises.

[17] Further that in this application, the applicant continues to focus on the authority of the deponents of the respondents’ respective affidavits to represent the respondents, and despite being presented with the Board resolutions confirming the authority of the respective deponents, the applicant refuses to accept these for no good reason.

[18] In addition, the second respondent submitted that the applicant’s desire to bar the respondents’ answering papers from consideration by the Court is based on his belief that he is entitled to prescribe inflexible and unjustified timelines in an urgent application.

[19] According to the second respondent, there is no urgency in this matter and the respondents’ affidavits were filed within the Court’s ordinary timelines as per Rule 7 and within the reasonable period relative to the date of hearing. It was on this basis that it argued that the Court was not required to consider applications for condonation of the alleged late filing of the answering affidavits.

[20] The second respondent is of the view that the applicant’s conduct, as a litigant, amounts to abuse of the Court’s processes, as he persisted in a patently meritless application despite having ample opportunity to consider the answers of both the first and second respondent. Further that the Court appropriately exercised its discretion in striking the applicant’s application from the roll with costs. For the above reasons, the second respondent argues that the applicant failed to demonstrate a reasonable prospect that the appeal Court would come to a different conclusion and that his application for leave to appeal ought to be dismissed with costs.

Applicable law ad analysis

[21] Section 166(1) of the Labour Relations Act (LRA)[4] provides that 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 Courts Act, 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 concerned 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 decision 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 issues between the parties.’

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

‘(i) When at the hearing of an appeal the issues are of such a nature that the decision sought will have no practical effect or result, 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.’

[23] In Martin and East (Pty) Ltd v National Union of Mineworkers and Others,[5] 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, 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.’

[24] 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.[6]

[25] Having had regard to the submissions from both parties, I find that there is no merit in the applicant’s submissions. As such, I am not persuaded that there are reasonable prospects that another court could come to a different conclusion. As such, his application ought to be dismissed.

Costs

[26] Guided by the principles of law and fairness, this Court has a discretion in awarding costs.[7] In Zungu v Premier of KwaZulu-Natal & others,[8] the Constitutional Court confirmed that the rule of practice that costs follow the result does not apply in labour matters. The Court should seek to strike a fair balance between unduly discouraging parties from approaching the Labour Court to have their disputes dealt with and, on the other hand allowing those parties to bring to this Court or oppose cases that should not have been brought to Court or opposed in the first place.

[27] This is a case where the Court has to strike a balance, considering the requirements of law and fairness. This is one of those matters where costs against the applicant are warranted as its persistence in bringing this application when there was no urgency was unreasonable. In the premise, the requirements of law and equity prompted this Court to exercise its discretion in favour of the respondents and to order the applicant to pay the respondents’ costs.

[28] Accordingly, the following order is made:

Order

1. The application for leave to appeal is dismissed with costs.

D. Mahosi

Judge of the Labour Court

[1] GN 1665 of 1996: Rules for the conduct of proceedings in the Labour Court.

[2] Effective 1 April 2013.

[3] Act 10 of 2013, as amended.

[4] Act 66 of 1995, as amended.

[5] (2014) 35 ILJ 2399 (LAC) at 2405I-2406E.

[6] 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 para 2; and Tsotetsi v Stallion Security (Pty) Ltd (2009) 30 ILJ 2802 (LC) at para 14.

[7] See section 162 of the Labour Relations Act.

[8] (2018) 39 ILJ 523 (CC) at para 24.