Ngidi v G4S Cash Services SA (PTY) Ltd and Another (J 717/2022) [2022] ZALCJHB 316 (7 October 2022)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Case No: J 717/2022

Not Reportable

In the matter between:

XOLILE NGIDI

Applicant

and

G4S CASH SERVICES SA (PTY) LTD

First Respondent

The Sheriff, Centurion East Second Respondent

Delivered: 7 October 2022

JUDGMENT: APPLICATION FOR LEAVE TO APPEAL

WHITCHER J

[1] The applicant seeks leave to appeal against the whole judgment and order of this Court delivered on 29 June 2022. The application is opposed by the first respondent (the respondent).

[2] The test to determine whether to grant an application for leave to appeal to the Labour Appeal Court requires the Labour Court to determine whether there is a reasonable prospect that another Court may come to a different conclusion to that of the Court a quo.[1]

[3] In Seatlholo and Others v Chemical Energy Paper Printing Wood and Allied Workers Union and Others,[2] this Court confirmed the test applicable in applications for leave to appeal and provided as follows:

'The traditional formulation of the test that is applicable in an application such as the present requires the court to determine

whether there is a reasonable prospect that another court may come to a different conclusion to that reached in the judgment that is sought to be taken on appeal. As the respondents observe, the use of the word "would" in s17(1)(a)(i) are 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 recently had occasion to observe that this court ought to be cautious when leave to appeal is granted, as should the Labour Appeal Court when petitions are 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 (See the judgment by Davis JA in Martin and East (Pty) Ltd v NUM (2014) 35 ILJ 2399 (LAC), and also Kruger v S 2014 (1) SACR 369 (SCA) and the ruling by Steenkamp J in Oasys Innovations (Pty) Ltd v Henning and another (C 536/15, 6-November 2015)'.

[4] Given the above test and having considered the respective submissions, I find no basis to grant leave to appeal.

[5] Further to my finding in the main judgment, I concur with the following submissions made by the respondent.

[6] A review application is not severable from the arbitration award, as there cannot be a review application without an arbitration award.

[7] By entering into a settlement agreement on the alleged basis that it only pertains to the review application and not the arbitration award, is inconsistent with the above and illogical. Moreover, this purported basis robbed the respondent of its right to have the arbitration award set aside when it intended to do so.

[8] As explained in the main judgment, the settlement agreement specifically and clearly stated that the review application and the rule 11 application was settled on the basis that the settlement is in full and final settlement of the dispute and all claims of any nature that the parties may have against each other, i.e. the arbitration award as per the notice of motion, the (review application and the prescription application.

[9] The settlement agreement leaves no room for interpretation that there is a lis between the original arbitration award and the settlement agreement.

[10] With regard to the punitive costs order made against the applicant and his legal representatives and the reason therefor, it is further noted, as pointed out by the respondent, that the conduct of the applicant and his representative was not only mala fide in applying for a warrant of execution after the matter had been settled between the parties, but further after the respondent had served its urgent application and a date of set down was provided to the applicant, the applicant instructed the second respondent to remove a vehicle needed by the respondent's business.

[11] Furthermore, despite repeated attempts by the respondent's representative to communicate with the applicant's representative, with regards to the settlement agreement, the warrant of execution and the cost implications thereof, the applicant's representative refused to respond to any and all correspondence and elected to proceed with the mala fide attachment and removal of the respondent's property.

[12] Turning to the issue of costs in the present application, to my mind it is a further abuse of process given my judgment which was clear and grounded in referenced legal authorities and given the test for an appeal.

Order

[13] In the result, the following order is made:

1. The application for leave to appeal (J 717/2022) is dismissed.

2. The applicant is ordered to pay the costs of the first respondent.

B Whitcher

Judge of the Labour Court of South Africa

[1] See: Woolworths Ltd v Matthews (1999) 3 BLLR 288 (LC); Karbochem Sosolburg SA (a division of Sentrachem Ltd) v Krief and Others (1999) 20 IU 2889 (LC); Singh and Others v Mondi Papers (2000) 21 IU 966 (LC); Glaxo Welcome SA (Pty) Ltd v Mashaba and Others (2000) 21 IU 1114 (LC); Volkswagen SA (Pty) Ltd v Brand NO and Others (2001) 22 IU 933 (LC); Ngcobo v Tente Casters (Pty) Ltd (2002) 23 IU 1442 (LC); National Education Health and Allied Workers Union v University of Cape Town and Others (2003) 24 IU 95 (CC).

[2] (2016) 37 IU 1485 (LC) at para 3.