South African Revenue Service v NEHAWU obo Makgakga and Others (JR 2718/17) [2022] ZALCJHB 115 (23 May 2022)
The court found that condonation for the late filing of the application for leave to appeal should be granted on the side of caution. However, the First Respondent failed to demonstrate reasonable prospects of success or any compelling reason for the appeal to be heard. The explanations provided by the applicant for...
Source-derived case information.
- Citation
- [2022] ZALCJHB 115
- Parties
- Applicant: South African Revenue Service; Respondent: NEHAWU obo Masai Gilbert Makgakga; Respondent: James Ngoako Matshekga N.O; Respondent: Commission for Conciliation Mediation and Arbitration
- Court
- Labour Court Johannesburg
- Jurisdiction
- South Africa
- Case Number
- JR 2718/17
- Procedural Posture
- Leave to Appeal / Application for Leave to Appeal Following Review Judgment
- Outcome
- Leave to appeal refused; costs awarded against First Respondent.
- Judges
- H Cele
- Legal Topics
- Leave to Appeal, Condonation, Inconsistent Dismissal, Arbitration Review, Costs Award
Source-derived case record
Summary, issues, holding and outcome
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Parties
South African Revenue Service
Applicant
NEHAWU obo Masai Gilbert Makgakga
Respondent
James Ngoako Matshekga N.O
Respondent
Commission for Conciliation Mediation and Arbitration
Respondent
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Following Review 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 or other compelling reasons for leave to appeal.
- 3 Whether the Labour Court erred in its treatment of inconsistent disciplinary action between two employees.
Ratio Decidendi
The court found that condonation for the late filing of the application for leave to appeal should be granted on the side of caution. However, the First Respondent failed to demonstrate reasonable prospects of success or any compelling reason for the appeal to be heard. The explanations provided by the applicant for the differential treatment of the two employees were addressed in the judgment, and the Commissioner failed to deal with those explanations. The grounds of appeal were found to be overlapping and did not meet the raised threshold for leave to appeal. Consequently, leave to appeal was refused and costs were awarded against the First Respondent.
Court Disposition
Leave to appeal refused; costs awarded against First Respondent.
Orders
- Condonation for the late filing of leave to appeal is granted.
- Leave to appeal is refused.
Full Case Text
Judgment text and source record
34 paragraphs
IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: JR 2718 /17
In the matter between:
SOUTH AFRICAN REVENUE SERVICE
Applicant
and
NEHAWU OBO MASAI GILBERT MAKGAKGA
First Respondent
JAMES NGOAKO MATSHEKGA N.O
Second Respondent
COMMISSION FOR CONCILIATION
MEDIATION AND ARBITRATION
Third Respondent
Heard: 19 May 2022
Delivered: 23 May 2022
JUDGMENT
CELE, J
[1] This is an application in terms of section 166(1) of the Labour Relations Act[1] (LRA), read with section 17(6) of the Superior Courts Act[2],where the applicant seeks leave to appeal against an ex-tempore judgment of this Court, issued on 5 September 2019, in this matter. An arbitration award in this matter was successfully reviewed, set aside and substituted at the instance of the applicant, who opposes this application. The appellation of the parties as they were in the review application shall be retained. The application for leave to appeal was filed late and condonation thereof is sought. On the side of caution, condonation shall be granted.
[2] To succeed in an application for leave to appeal, an applicant has to satisfy me that the appeal has reasonable prospects of success or that there is some other compelling reason why the appeal should be heard, including conflicting judgments on the matter under consideration. The threshold to grant leave to appeal has been raised higher. The onus rests with the First Respondent to demonstrate the presence of any of these identified circumstances.
[3] The First Respondent initially outlined seven grounds of appeal. Through supplementary submissions six more grounds were added. There is an overlap in some of these. Essentially, this matter turns on whether the Applicant acted fairly in retaining in its services Mr Maarten Pieterse (Mr Pieterse), whom it similarly found guilty of misconduct while it dismissed Mr Masai Gilbert Makgakga (Mr Makgakga) represented by the First Respondent.
[4] Paragraphs 36 to 44 of the assailed judgment deal succinctly with this issue. Put differently, the applicant gave two explanations[3] why it treated its two offending employees differently but the Commissioner failed to deal with those explanations. Further, the
applicant has demonstrated through its submissions in opposing this application that leave to appeal should not be granted as the test set has not been met by the first respondent.
[5] Accordingly, the following order shall issue:
Order:
1. Condonation for the late filing of leave to appeal is granted.
2. Leave to appeal is refused.
3. The First Respondent is to pay the costs hereof.
____________________
H. Cele
Judge of the Labour Court of South Africa
[1] Act No. 66 of 1995, as amended.
[2] Act No. 10 of 2013.
[3] See: paras 38 and 39 of the assailed judgment.