Merafong Local Municipality v IMATU obo Sentle and Others (JR2023/2015) [2020] ZALCJHB 250 (4 November 2020)

THE LABOUR COURT OF SOUTH AFRICA

(HELD AT JOHANNESBURG)

Not reportable

CASE NO: JR 2023/2015

In the matter between:

MERAFONG LOCAL MUNICIPALITY

Applicant

and

IMATU obo J SENTLE & OTHERS

First Respondent

D DAWSON N.O.

Second Respondent

SALGBC

Third Respondent

Date enrolled: 3 November 2020

Date of judgment: 4 November 2020

RULING: APPLICATION FOR LEAVE TO APPEAL

VAN NIEKERK J

[1] This is an application for leave to appeal against the judgement delivered by this court on 4 November 2020. In its judgement, the court reviewed and set aside an arbitration award issued by the second respondent and substituted the award by an order that the referral to arbitration be dismissed.

[2] The applicant applies for leave to appeal on the basis that the court assumed jurisdiction in relation to the review application without determining whether the review was deemed to have been archived in terms of clause 16 of the practice manual, that the court erred in granting condonation for the applicant’s failure to comply with the provisions of clause 11 point .7 of the practice manual in section 145 (5) of the LRA that the court pronounced on the review without considering the first respondent’s application to dismiss the review and in the absence of a notice contemplated by rule 7A (8) and by finding that the dispute before the arbitrator fell outside of the ambit of the definition of unfair labour practice.

[3] The test to be applied is established by s 17 of the Superior Courts Act, 2013. The court must determine whether there is a reasonable prospect that another court would come to a different conclusion. The nature of the test is one more stringent than that which previously applied. In Seatlholo and others v Chemical Energy Paper Printing Wood and Allied Workers Union and others (2016) 37 ILJ 1485, the court said the following:

… the use of the word “would” in s17 (1) (a) (i) is 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 had occasion to observe that this court ought to be cautious when leave to appeal is 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.

[4] More precisely stated, the court must determine whether there is a reasonable prospect that the factual matrix would receive a different treatment or where there is some legitimate dispute on the law (see Martin & East (Pty) Ltd v NUM (2014) 35 ILJ 2399 (LAC); Acting National Director of Public Prosecutions & Others v Democratic Alliance In re: Democratic Alliance v Acting Director of Public Prosecutions & Others [2016] JOL 36123 (GP); Mothuloe Inc. Attorneys v The Law Society of the Northern Provinces & Another [2017} ZASCA 17 (22 March 2017), where the raising of the bar in applications for leave to appeal has been affirmed). In this court, there is an additional consideration. In the Martin & East judgment, Davis JA urged labour courts to take care to ensure a balance between expeditious dispute resolution and the rights of the party seeking leave to appeal.

[5] The grounds for leave to appeal all technical in nature. The terms of the judgment make clear that the court was concerned that a matter having its roots in events that occurred in 2008 served before it at the end of 2020, in circumstances where interlocutory issues remained unresolved. What the judgement represents is consistent with the

statutory purpose of expeditious dispute resolution. In so far as the specific grounds for appeal are concerned, the court was empowered, as did, to condone the applicant’s failure to comply with clause 11.2.7 of the practice manual, as well as section 145 (5) of the LRA, and to treat the review application as a material consideration at stake in the present instance of the interests of justice, and the requirement that the practice manual be applied so as to take into account the purpose of expeditious dispute resolution underlined by both the LRA and the manual. Insofar as the first respondent submits that the rule 11 application ought to have first been decided, the merits of that application are inextricably bound with the merits of the review application, which prompted my colleague Judge Whitcher to condone the late filing of the record of the proceedings under review, and which are the foundation of the judgement at issue in these proceedings. It is manifestly clear from the papers in the review application that the true nature of the dispute between the parties is a dispute about job grading, a matter that is not full within the definition of unfair labour practice in section 186 (2) of the LRA. Further, the judgment by the Labour Appeal Court referred to in paragraph 8 of the judgment makes clear that in the absence of an agreed stated case, an arbitration award issued only on the basis of the bundle of documents and written submissions is reviewable. Given that matters concerning an alleged unfair labour practice by definition call into question the fairness of the conduct of the employer party, it was incumbent on the arbitrator to call for oral evidence. In short, the arbitration award

under review is manifestly unreasonable, and the applicant’s prospects of success so strong that any further delay in the

proceedings ought to be avoided. Further, it would be contrary to the interests of justice to allow the award to stand.

I make the following order:

1. Leave to appeal is refused.

André van Niekerk

Judge of the Labour Court of South Africa