National Union of Metalworkers South Africa and Others v Commission For Conciliation, Mediation and Arbitration and Others (JR 2875/17) [2022] ZALCJHB 216 (10 August 2022)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: JR 2875/17

In the matter between:

NATIONAL UNION OF METALWORKERS

OF SOUTH AFRICA

First Applicant

LYDIA DINGALIBALA

Second Applicant

DYNAH MAILA

Third Applicant

JABULANI NOPHA

Fourth Applicant

SIBONGILE SHIRINDA

Fifth Applicant

and

COMMISSION FOR CONCILIATION,

MEDIATION AND ARBITRATION

First Respondent

M. A. HAWYES N.O.

Second Respondent

EXCELLERATE SECURITY SERVICES (PTY) LTD

Third Respondent

Decided: In Chambers

Delivered: 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 and time for hand-down is deemed to be 10 August 2022.

JUDGMENT – LEAVE TO APPEAL

MAHOSI, J

Introduction

[1] The third respondent brought an application for leave to appeal against the order of this Court that was handed down on 26 October 2021 in terms of which it was ordered as follows:

‘1. The arbitration award issued by the second respondent dated 17 November 2017 under case number GAJB 6550-17 is reviewed and set aside;

2. The matter is remitted back to the first respondent for an arbitration de novo, before an arbitrator other than the second respondent;

3. There is no order as to costs.’

[2] The parties are cited as they were in the review application.

[3] The applicants opposed the application.

Grounds for Leave to Appeal

[4] The first ground on which the third respondent brought this application was that the Court erred in finding that the commissioner placed inferential weight on the fact that the attendance of the applicant’s corroborating witness, Sihle Ngubane, to testify at the arbitration proceedings was secured by means of a subpoena whereas its witness was a better witness on the simple fact that he freely testified in the arbitration.

[5] To support its contention, the third respondent submitted that the commissioner was presented with the task of deciding which of the two destructive versions he would accept in corroborating either its version or that of the applicants. Further that the commissioner’s assessment was not confined to whether each of the witness was subpoenaed or not, this was just one factor amongst a litany of others which was considered by the commissioner.

[6] Furthermore, third respondent submitted that the commissioner fully and properly considered all of the evidence before him and on a proper construction of the evidence, including the totality of all of the witnesses’ oral testimonies, concluded that the applicants did not have permission to leave the site early. In addition, the third respondent submitted that the Court acted with undue haste when interfering with the commissioner’s credibility findings while there was nothing in the record or the order of the court to suggest that such were out of kilter with the probabilities of the evidence

as a whole.

[7] The second ground was that the Court erred in finding that the commissioner had failed to undertake an enquiry into the alleged inconsistent application of discipline. In this regard, the third respondent submitted that the most plausible conclusion that can be drawn from the evidence concerning OB entry 2022/0117 was that it was fabricated and an unreliable source of evidence which the Court ought to have rejected and which did not by any means constitute ‘objective

fact’ as noted from the reasons for the Order.

[8] According to the third respondent, the commissioner’s decision to reject this entry was reasonable considering the probabilities and the Court failed to grapple with the fact that this particular OB entry was an unreliable source of evidence and not objective fact. It was for this reason that the third respondent submitted that the

Court erred in favouring this particular OB entry over Ngwako’s evidence.

[9] The third and last ground was that the reasons for the Order only dealt with aspects pertaining to the dismissal of the first and second applicants and was silent on the dismissal of the fourth and fifth applicants. Further that to an extent that the Court has failed to provide any reasons as to why it has interfered with the commissioner’s finding as it relates to the dismissal of the third and fourth applicants, it’s order can in no way be imputed to their circumstances.

[10] Furthermore, the third respondent submitted that the Court’s failure to address the findings of the commissioner on the dismissal of the fourth and fifth applicants renders his ruling in respect of the two applicants unaffected by the Order and that under the circumstances the Court ought to have confirmed their dismissal to be fair instead of remitting their matters back to the CCMA along with the matters of the first and second applicants.

Grounds of opposition

[11] In opposing, the applicants submit that this application was not bona fide, but was delaying tactics employed by the third respondent to undermine justice. The applicants further submitted that they were

dismissed in February 2017, which is more than five years ago and again their rights are being undermined by this meritless application.

[12] Furthermore, the applicants submitted that the commissioner’s failure to properly evaluate the material evidence led by Ngubane resulted in an unreasonable outcome, one that a reasonable decision maker would not have reached. According to them, the Court did not err in arriving at the conclusion it did in this regard.

[13] In addition, the applicants submitted that the Court correctly found that the commissioner failed to inquire into the inconsistent application of discipline in respect of the remaining security guards who had left the site early, together with the applicants and that he committed gross irregularities in that he misconstrued the nature of the inquiry and disregarded material evidence, which resulted in the entire award being unreasonable. Lastly, the applicants submitted that the award was reviewed in its totality and that the dispute remitted to the CCMA for hearing de novo.

Applicable law and analysis

[14] The traditional test in determining whether to grant an application for leave to appeal is whether there is a reasonable prospect that another court may come to a different conclusion.[1]

[15] In terms of section 166(1) of the Labour Relations Act (LRA),[2] 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 Court Act,[3] 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 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 issue between the parties.’

[16] 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.’

[17] 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 by 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.’

[18] Having had regard to both parties’ submissions, I am not persuaded that there are reasonable prospects of a successful appeal. As such, I am of the view that this application is without merit and ought to be dismissed.

Costs

[19] With regard to costs, taking into account the requirements of law and equity, I am of the view that this is a matter in which there should be no order as to costs.

[20] 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, as amended.

[4] (2014) 35 ILJ 2399 (LAC) at 2405-2406.