Solidarity obo Swart v Kulisile Civil Works Joint Venture and Others (JR452/19) [2022] ZALCJHB 298 (26 October 2022)
The Court found that the application for leave to appeal was filed late but condonation was warranted due to the minor delay and reasonable explanation. On the substantive grounds, the Court held that the applicant's interpretation of the phrase 'KCWJV Completion' in the employment contract was unbusinesslike and...
Source-derived case information.
- Citation
- [2022] ZALCJHB 298
- Parties
- Applicant: Solidarity obo Mr. W.A. Swart; Respondent: Kulisile Civil Works Joint Venture; Respondent: Commissioner Mohini Soman N.O; Respondent: The Bargaining Council for the Civil Engineering Industry
- Court
- Labour Court Johannesburg
- Jurisdiction
- South Africa
- Case Number
- JR452/19
- Procedural Posture
- Leave to Appeal / Application for Leave to Appeal Following Judgment
- Outcome
- Application for leave to appeal dismissed with no order as to costs.
- Judges
- Nkutha-Nkontwana
- Legal Topics
- Leave to Appeal, Condonation, Employment Contract Interpretation
Source-derived case record
Summary, issues, holding and outcome
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Parties
Solidarity obo Mr. W.A. Swart
Applicant
Kulisile Civil Works Joint Venture
Respondent
Commissioner Mohini Soman N.O
Respondent
The Bargaining Council for the Civil Engineering Industry
Respondent
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Following Judgment
Legal Issues
- 1 Whether condonation for the late filing of the application for leave to appeal should be granted.
- 2 Whether the applicant has demonstrated reasonable prospects of success on appeal.
- 3 Whether the construction of the employment contract phrase 'KCWJV Completion' was correctly interpreted.
Ratio Decidendi
The Court found that the application for leave to appeal was filed late but condonation was warranted due to the minor delay and reasonable explanation. On the substantive grounds, the Court held that the applicant's interpretation of the phrase 'KCWJV Completion' in the employment contract was unbusinesslike and did not accord with commercial reality. The Court concluded that the applicant failed to demonstrate reasonable prospects of success on appeal, as there was no likelihood that another court would reach a different decision. Accordingly, the application for leave to appeal was dismissed without a costs order.
Court Disposition
Application for leave to appeal dismissed with no order as to costs.
Orders
- The application for leave to appeal is dismissed.
- No order as to costs.
Full Case Text
Judgment text and source record
28 paragraphs
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case no: JR452/19
In the matter between:
SOLIDARITY OBO MR. W.A. SWART
Applicant
And
KULISILE CIVIL WORKS JOINT VENTURE
First Respondent
COMMISSIONER MOHINI SOMAN N.O
Second Respondent
THE BARGAINING COUNCIL FOR THE CIVIL
ENGINEERING INDUSTRY
Third Respondent
Decided: In Chambers
Delivered: 26 October 2022
This judgment was handed down electronically by circulation to the parties' legal representatives by email, publication on the Labour
Court’s website and released to SAFLII. The date and time for hand-down is deemed to be 10h00 on 24 October 2022.
LEAVE TO APPEAL – JUDGMENT
NKUTHA-NKONTWANA, J
Introduction
[1] This is opposed leave to appeal wherein the applicant seeks leave to appeal the whole judgment and order of this Court handed down on 7 July 2022. Leave is sought to appeal to the Labour Appeal Court (LAC) on several grounds that are enunciated in its notice of the application for leave to appeal.
[2] The application for leave to appeal was filed late and condonation thereof is sought. The respondent is not opposing the grant of condonation. In light of the inconsequential degree of lateness and sufficiently reasonable explanation, I am satisfied that condonation should be granted.
[3] I propose not to restate grounds of appeal in this judgment as they are addressed in detail in the applicant’s written submissions. To the extent that the issues canvased in this application are addressed in detail in the impugned judgment, I defer to the reasons therein. Even so, I deem it expedient to reiterate that the construction the applicant persistently accords to the phrase “KCWJV Completion” in Mr Swart’s contract of employment is patently unbusinesslike. This matter ultimately turned on a constructional choice that had to be resolved by reference to the text and context of the agreement at the time it was concluded. In my view, the construction accords with commercial reality had to be preferred.
[4] Having holistically assessed all the grounds of appeal, I am convinced that the applicant failed to show that the appeal bears reasonable prospects of success. Put differently, there are no prospects that another court might reasonably arrive at a decision different to the one reached by this Court. It follows that this application stands to be dismissed. I am, however, not inclined to award costs.
[5] 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