NEHAWU obo Malatji v Minister of Justice and Constitutional Development and Another (J1552/14) [2018] ZAGPJHC 581 (9 November 2018)

IN THE HIGH COURT OF SOUTH AFRICA, JOHANNESBURG

Not reportable

Case no: J1552/14

In the matter between:

NEHAWU obo DANIEL MASILU MALATJI

Applicant

and

MINISTER OF JUSTICE AND

CONSTITUTIONAL DEVELOPMENT First

Respondent

DEPARTMENT OF JUSTICE AND

CONSTITUTIONAL DEVELOPMENT

Second Respondent

Considered: In chambers

Delivered: 9 November 2018

JUDGMENT – LEAVE TO APPEAL

SEDILE, AJ

[1] The respondents have launched an application for leave to appeal against the judgment and order granted in respect of the applicant’s notice to compel application which was delivered on 24 August 2018. The application is opposed by the NEHAWU obo Malatji.

[2] The principles where leave to appeal is sought are trite. The enquiry is whether there is a reasonable prospect that another court (in this case, the Labour Appeal Court) may come to a different conclusion to that reached in the judgment that is sought to be taken on appeal. In explaining what ‘reasonable prospects’ entail, the Supreme Court of Appeal in S v Smith[1] held thus:

‘What the test of reasonable prospects of success postulates is a dispassionate decision, based on the facts and the law that a court

of appeal could reasonably arrive at a conclusion different to that of the trial court. In order to succeed, therefore, the

appellant must convince this court on proper grounds that he has prospects of succeed on appeal and that those prospects are not

remote but have realistic chance of succeeding. More is required to be established than that there is a mere possibility of success, that the case is arguable on appeal or that the case cannot be categorised as hopeless. There must, in other words, be a sound, rational basis for the conclusion that there are prospects of success an appeal’.

[3] The threshold or test for the granting of leave to appeal is stringent as further demonstrated in Martin and East (Pty) Ltd v NUM[2], where it was emphasised that this Court ought to be cautious when granting leave to appeal, as the statutory imperative of expeditious

resolution of labour disputes necessitates that appeals be limited to those matters in which there is a reasonable prospect that the factual matrix could receive different treatment or where there is some legitimate dispute on the law.

[4] I have had regard to the submissions made on behalf of the applicant and in particular, authorities referred therein. Having further reflected on my judgment, I hold the view that the grounds upon which leave to appeal is sought and the arguments raised in that regard were sufficiently dealt with in the judgment, and it would thus not be necessary to address each and every ground.

[5] Based on the facts and the law as addressed in the judgment, the grounds upon which leave to appeal is sought and submissions made on behalf of the respondents, I am thus not convinced that there are compelling reasons or sound and/or rational basis for a conclusion to be reached that the applicant has prospects of success on appeal.

[6] I have further had regard to the requirements of law and fairness in regard to an award of costs, and again hold the view that any costs order is not warranted in this case.

[7] Accordingly, the following order is made:

Order

1. The application for leave to appeal is dismissed;

2. There is no order as to costs.

P. Sedile

Acting Judge of the Labour Court of South Africa

[1] 2012 (1) SACR 567 (SCA) (15 March 2011) at para 17.

[2] (2014) 35 ILJ 2399 (LAC); See also Seatlholo and Others v Chemical Energy Paper Printing Wood and Allied Workers Union and Others

(2016) 37 ILJ 1485 (LC)