National Union of Food Beverage Wine Spirits and Allied Workers Union and Another v Coca Cola Beverages South Africa (Pty ) Ltd (CCBSA) (JS189/19) [2022] ZALCJHB 10 (7 February 2022)

Not Reportable

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Case no: JS189/19

In the matter between:

THE NATIONAL UNION OF FOOD BEVERAGE WINE

SPIRITS AND ALLIED WORKERS UNION

First Applicant

ESIAH MNDAWE AND 91 OTHERS Second and Further Applicant

and

COCA COLA BEVERAGES SOUTH AFRICA (PTY)

LTD (CCBSA) Respondent

Considered: In Chambers

Delivered: 7 February 2022 (In view of the measures implemented as a result of the Covid-19 outbreak, this judgment was handed down electronically by circulation to the parties' representatives by email. The date for hand-down is deemed to be on 7 February 2022)

JUDGMENT

APPLICATION FOR LEAVE TO APPEAL

PHEHANE, J

Introduction

[1] The applicants seek leave to appeal against the judgment and order of this Court, handed down on 10 December 2021, insofar as the finding on substantive fairness is concerned.[1]

[2] The application is opposed.[2] The applicants however, incorrectly submit that the application for leave to appeal is unopposed. Further, that no directions, (as I understand the submission, as contemplated in rule 30(3A) of the Rules for the Conduct of Proceedings in the Labour Court), were received from the Court.[3]

[3] Rule 30(3A) read with item 15.2 of the Practice Manual[4] provide for the time frame within which parties are to submit their written submissions, on the basis of which, the application for leave to appeal will be considered. This is precisely what the parties have done. I have read and considered their written submissions.

Test to succeed in an application for leave to appeal

[4] The applicants submit that the test is that there is a measure of certainty that there are reasonable prospects of success because

another court is likely to come to a different conclusion.[5] The applicants rely on authorities that indicate that the threshold to succeed in an application for leave to appeal has been raised.[6] This reliance is correct.

[5] It is now a settled principle in our law that in order to be entitled to leave to appeal, an applicant must convince the Court that it has reasonable prospects of success on appeal.[7] Further, there has to exist, a likelihood that another Court, presented with the same facts, would come to a different conclusion.

[6] Section 17(1) of the Superior Courts Act[8] reads as follows:

‘17. Leave to appeal.—(1) 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.’

[7] In Acting National Director of Public Prosecutions and Others v Democratic Alliance In Re: Democratic Alliance v Acting Director of Public Prosecutions & Others[9] the Court stated that the Superior Courts Act[10] has raised the bar for the granting of leave to appeal. The Court quoted Bertelsman, J in The Mont Chevaux Trust (IT12012/18) v Tina Goosen and 18 Others[11] when he held as follows:

‘It is clear that the threshold for granting leave to appeal against the judgement of the High Court has been raised in the new act. The former test whether leave to appeal should be granted was a reasonable prospect that another court might come to a different

conclusion, see Van Heerden v Cronwright and others 1985 (2) SA 342 (T) at 343H. The use of the word “would” in the new statute indicates a measure of certainty that another court will

differ from the court whose judgement is sought to be appealed against”.

[8] I have noted the parties’ submissions that written closing arguments were filed on 5 November 2021 by the applicant, by the

respondent on 12 November 2021 and replying submissions by the applicant on 16 November 2021. However, such submissions are to date, not contained in the Court file.[12]

[9] The applicants raise the issue of the Court not taking cognizance of the closing arguments as a ground of appeal.[13] The respondent contends that this is no basis for leave to appeal and that the question to be answered is whether the factual and legal findings of the Court provide a basis for the conclusion that another Court would come to a different conclusion.[14]

[10] I have once more considered the judgment, the application for leave to appeal and the written submissions filed. I am not persuaded that the applicants have made out a case for the granting of leave to appeal.

[11] In the premises, the following order is made:

Order

1. The application for leave to appeal is dismissed.

2. There is no order as to costs.

M.T.M Phehane

Judge of the Labour Court of South Africa

[1] Applicants’ written submissions, para 7.

[2] The Respondent has field opposing written submissions as contemplated in item 15.2 of the Practice Manual of 2013.

[3] Applicants’ written submissions, para 6.

[4] Effective 2 April 2013.

[5] Applicants’ written submissions para 8. The applicants do not seek leave to appeal the judgment insofar as it relates to their automatically unfair dismissal claim. In my judgment, I found that the Court had no jurisdiction to adjudicate the applicants’ automatically unfair dismissal claim as contemplated in sections 187(1)(c) and (g) of the Labour Relations Act, Act 66 of 1995, as amended.

[6] See fn 3 of the applicants’ written submissions.

[7] Section 17(1) of the Superior Courts Act, Act 10 of 2013.

[8] No. 10 of 2013.

[9] [2016] ZAGPPHC 489 at para 13.

[10] fn 3 supra.

[11] LCC 14R/2014 (unreported judgment dated 3 November 2014).

[12] Rule 1 makes provision for the definition of ‘deliver’ and states as follows: “‘deliver’ means serve on other parties and file with the registrar”. Rule 4 and item 14.1 of the Practice Manual make provision for the service of documents or processes. Rule 5 provides for the filing of documents with the registrar and provides as follows: ‘(1) Documents may be filed with the registrar in any one of the following ways, namely – (a) by handing the document to the registrar; (b) by sending a copy of the document by registered post; or (c) by faxing the document. (2) a document is filed with the registrar – (a) on the date on which the document is handed to the registrar; (b) on the date on which the document sent by registered post was received by the registrar; or (c) on completion of the whole transmission of the facts. (3) the original document must be lodged with the registrar. In the case of filing by faxing the document, the original document must be lodged with in five days of it being faxed.’

[12] Rule 1 makes provision for the definition of ‘deliver’ and states as follows: “‘deliver’ means serve on other parties and file with the registrar”. Rule 4 and item 14.1 of the Practice Manual make provision for the service of documents or processes. Rule 5 provides for the filing of documents with the registrar and provides as follows:

‘(1) Documents may be filed with the registrar in any one of the following ways, namely –

(a) by handing the document to the registrar;

(b) by sending a copy of the document by registered post; or

(c) by faxing the document.

(2) a document is filed with the registrar –

(a) on the date on which the document is handed to the registrar;

(b) on the date on which the document sent by registered post was received by the registrar; or

(c) on completion of the whole transmission of the facts.

(3) the original document must be lodged with the registrar. In the case of filing by faxing the document, the original document must be lodged with in five days of it being faxed.’

[13] Notice of application for leave to appeal, paras 1 to 6.

[14] Respondent’s written submissions, paras 10 and 11.