Nkosana v Commission for Conciliation Mediation and Arbitration and Others (JR 182/2017) [2022] ZALCJHB 245 (26 August 2022)

THE LABOUR COURT OF SOUTH AFRICA

(HELD AT JOHANNESBURG)

Not reportable

CASE NO: JR 182/2017

In the matter between:

MOZONDWA JOSEPH NKOSANA

Applicant

and

COMMISSION FOR CONCILIATION

MEDIATION AND ARBITRATION

First Respondent

COMMISSIONER W KOEKEMOER N.O

Second Respondent

CITY OF TSHWANE

Third Respondent

(This judgement was handed down electronically by circulation to the parties’ legal representatives, by email, publication on the Labour Court’s website and released to SAFLI. The date on which the judgment is delivered is deemed to be 26 August 2022.)

RULING: APPLICATION FOR LEAVE TO APPEAL

VAN NIEKERK J

[1] The applicant seeks leave to appeal against the judgement delivered by this court on 21 April 2022, when the court refused to condone the late filing of an application to review and set aside an arbitration award issued by the second respondent.

[2] 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. 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.

[3] 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 a 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.

[4] In his application for leave to appeal, the applicant seeks for the judgment to be ‘reviewed and set aside’. I would assume in the applicant’s favour that he seeks leave to appeal. Nothing in the voluminous affidavit filed by the applicant adds anything to the matters that already the subject of decision and full watchful reasons have been supplied. Given the threshold that the applicant is required to meet, in my view, he has failed to establish any substantive basis on which leave to appeal might be granted.

I make the following order:

1. The application for leave to appeal is dismissed.

André van Niekerk

Judge of the Labour Court of South Africa