Road Traffic Management Corporation v Commission for Conciliation, Mediation and Arbitration and Others (JR2751/2018) [2021] ZALCJHB 323 (5 October 2021)

THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN

Not Reportable

Case no: JR2751/2018

In the matter between:

ROAD TRAFFIC MANAGEMENT CORPORATION Applicant

and

COMMISSION FOR CONCILIATION

MEDIATION AND ARBITRATION First

Respondent

L NAIDOO N.O Second

Respondent

ANTON VAN DER ZANDT 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 for hand-down is deemed to be 05 October 2021.

JUDGMENT: APPLICATION FOR LEAVE TO APPEAL

NKUTHA-NKONTWANA. J

[1] This is an unopposed application, the applicant seeks leave to appeal against the whole ex tempore judgment and order handed down by this Court on 02 February 2020 and edited on 17 May 2020.

[2] I note with regret that there is excessive lapse between the period when this application was filed and when it came to my attention. It would seem that the initial papers were misfiled due to the infrequent manner in which the support staff members in this Court

have been operating in line with the health protocols in terms of the National Disaster Management Act[1] in response to COVID-19 pandemic. As a result, this application only came to my attention on 29 September 2021.

[3] This application is hinged on several grounds which are articulated in detail in applicant’s written submissions and I do not intend repeating them in this judgment, save to state that I have considered all of them. Also, I am of the view that I have clearly addressed all the issues canvased in this application in the impugned judgment and to that extent, I defer to the reasons therein.

[4] However, I deem it expedient to address some few issues. In respect of the first ground of appeal, the applicant persists with the contention that its counsel had to be allowed an opportunity to cross-examine the third respondent. I must stress that the applicant’s counsel deliberately absented himself from the arbitration because of double briefing. The applicant concedes that when its application for postponement was refused, its attorney who had argued the application refused to proceed and preferred to be an observer. Since the applicant’s attorney decided to withdraw his representation and opted for an observer status, the matter commenced on default basis.

[5] Yet, the applicant’s counsel was expecting to be allowed to enter appearance only to cross examine the third respondent when the applicant’s attorneys has already withdrew their representation and failed to lead the applicant’s case. Clearly, by that time the horse had already bolted and the commissioner’s decision not to allow cross examination cannot be faulted. The applicant’s counsel ought to have known that, by accepting a brief to attend to the urgent application on the same date when he had already accepted a brief to appear at the CCMA, he was acting improperly and to the prejudice of his client, the applicant. This ground of appeal is obviously untenable

[6] Likewise, the second ground is untenable. The applicant seems to be oblivious to the fact that arbitration proceedings are conducted de novo. The evidence of the third respondent that there was no breach of trust as he had continued with his duties as normal after the

incident and was also rewarded with promotion was never challenged and had to stand. In my view, the applicant is deliberately blurring the line between review and appeal. The Commissioner reasonably found that the sanction of dismissal was unfair on the basis of unchallenged evidence.

[7] It is accepted that a party seeking leave to appeal must show that there is a reasonable prospect that the factual context could receive a different treatment or that there is a legitimate dispute on the law. However, in labour matters another consideration, which is pivotal, is the imperative in terms of the LRA for the expeditious resolution of labour disputes, a principle well-articulated by the LAC, as per Davis JA, in Martin and East (Pty) Limited v National Union Mineworkers and Others.[2]

[8] In the present instance, I am not persuaded that there is a reasonable prospect that the factual matrix in this case might receive a different treatment at the appeal. Put differently, the applicant has failed to make out a case that another court might reasonably arrive at a decision different to the one reached by this Court.

[9] In the circumstances, the application for leave to appeal is dismissed with no order as to costs.

P. Nkutha-Nkontwana

Judge of the Labour Court of South Africa

[1] Act 57 of 2002, as amended.

[2] (2014) 35 ILJ 2399 (LAC).