Springs Car Wholesalers (Pty) Ltd t/a Dollar Thifty Car Rental v Chakanyuka and Others (JR 415/18) [2021] ZALCJHB 124 (18 June 2021)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case No: JR 415/18

In the matter between:

SPRINGS CAR WHOLESALERS (PTY) LTD

t/a DOLLAR THIFTY CAR RENTAL

Applicant

and

ROMANA NYARADZO CHAKANYUKA

First Respondent

COMMISSION FOR CONCILIATION, MEDIATION

AND ARBITRATION

Second Respondent

COMMISSIONER AMOS MTHIMUNYE N.O Third

Respondent

Considered in Chambers

Delivered: This judgment was handed down electronically by circulation to the parties' legal representatives by email, publication on the Labour Court’s website. The date and time for hand-down is deemed to be 18 June 2021 at 18:00

JUDGMENT: LEAVE TO APPEAL

TLHOTLHALEMAJE, J

Introduction:

[1] The applicant’s application to review and set aside the arbitration award issued by the third respondent (Commissioner) was dismissed by this Court on 8 April 2021. The applicant has since filed an application for leave to appeal against the ‘whole order’. The application for leave to appeal is opposed by the first respondent.

[2] The test when considering applications for leave to appeal is well-known as codified in terms of section 17(1) of the Superior Courts Act[1]. It entails an assessment of whether or not there are reasonable prospects that another court would come to a different conclusion

than that arrived at by the court a quo. This test was summarised in Smith v S[2] as follows:

“What the test of reasonable prospects of success postulates is a dispassionate decision, based on the facts and the law that a court

of appeal could reasonably arrive at a conclusion different to that of the trial court. In order to succeed, therefore, the appellant

must convince this court on proper grounds that he has prospects of success on appeal and that those prospects are not remote but have a realistic chance of succeeding. More is required to be established than that there is a mere possibility of success, that the case is arguable on appeal or that the case cannot be categorised as hopeless. There must, in other words, be a sound, rational basis for the conclusion that there are prospects of success on appeal.

[3] In seeking leave to appeal, the applicant relies on various grounds, contending that the Court erred in evaluating certain factual conclusions made by the Commissioner, more particularly in regards to the existence of the rules breached by the first respondent; that Court misdirected itself in not taking into account certain material evidence that was placed before the Commissioner in regards to how the conduct complained of took place; and further in concluding that the dismissal of the first respondent was unfair despite making a finding of negligence on the her part.

[4] Having had regard to the grounds upon which leave to appeal is sought, the submissions made by the first respondent in opposition thereto, and further having reflected on my judgment, it is apparent that the issues relied upon in seeking the relief in question are matters extensively dealt with in that judgment.

[5] A consideration of all the above factors however point to no basis upon which it can be concluded that based on the facts and the law, the Labour Appeal Court (LAC) could reasonably arrive at a conclusion different to that of the court a quo. The leave to appeal does not raise any novel issues of fact or law that deserves the attention of the LAC, and in a nutshell, there is no sound or rational basis for the conclusion that there are prospects of success on appeal. It is my further view that considering the grounds relied upon, this application for leave to appeal is clearly ill-considered, and the requirements of law and fairness therefore dictate that the first respondent should not be burdened with its costs.

[6] Accordingly, the following order is made;

Order:

1. The applicant’s application for leave to appeal is dismissed with costs.

___________________

Edwin Tlhotlhalemaje

Judge of the Labour Court of South Africa

[1] Act 10 of 2013

[2] 2012 (1) SACR 567 (SCA) at para 7.