Technology Corporate Management (Pty) Ltd v Mosue and Others (J 186/23) [2023] ZALCJHB 122 (26 April 2023)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case No: J 186/23

In the matter between:

TECHNOLOGY CORPORATE MANAGEMENT(PTY) LTD Applicant And MOGOTSI JEFFREY MOSUE First Respondent LUCAS MAKALELA Second Respondent PHILEMON LETJIANE Third Respondent PETRUS PHUKUBJE Fourth Respondent LAVIOUS MPHELA Fifth Respondent THOMAS NGOVENI Sixth Respondent RODNEY MOKGOTHADI Seventh Respondent PERCY MOFOKENG Eighth Respondent SANNA MATJAOLA Ninth Respondent JASMANE JOSEPH N.O. Tenth Respondent COMMISSION FOR CONCILIATION, MEDIATION AND ARBITRATION Eleventh Respondent

Considered in Chambers

Delivered: This judgment was handed down electronically by circulation to the parties' legal representatives by email and publication on the Labour Court’s website. The date and time for the hand-down is deemed to be on 26 April 2023

JUDGMENT: LEAVE TO APPEAL

TLHOTLHALEMAJE, J

[1] In this application, the applicant seeks leave to appeal against the whole judgment and order of this Court issued on 12 March 2023. In its judgment, the Court had dismissed with costs, the applicant’s urgent application to stay the yet to start arbitration proceedings before the eleventh respondent, the Commission for Conciliation Mediation and Arbitration (CCMA). The dispute before the CCMA pertains to the alleged unfair dismissal referred by the first to ninth respondents (ex-employees) by the applicant. The application for leave to appeal is opposed.

[2] The principles applicable to applications for leave to appeal are fairly settled. Flowing from the provisions of section 17(1) of the Superior Courts Act[1], leave to appeal may only be granted where it would have reasonable prospects of success; or where there is some other compelling reason why the appeal should be heard, including whether there exist conflicting judgments on the subject issue under consideration[2]. Furthermore, it has been held that the substantial importance of the matter to the party seeking leave to appeal is equally of

importance[3].

[3] In Seathlolo & others v Chemical Energy Paper Printing Wood & Allied Workers Union & others[4] it was held that the use of the word ‘would’ in section 17(1) of the Superior Courts Act has raised the threshold when

considering such applications. This thus entails in this case that the Court must be satisfied that there are indeed reasonable

prospects, that the Labour Appeal Court (LAC) would come to a different conclusion.[5]

[4] In Smith v S[6] it was held that an applicant in an application for leave to appeal must demonstrate on proper grounds that the prospects of success on appeal are not remote, but that in fact there are realistic chances that the appeal would succeed[7]. Similarly in Martin & East (Pty) Ltd v National Union of Mineworkers & others[8] it was held that in view of the statutory imperative which requires that labour disputes be disposed of expeditiously, appeals should only be limited to those disputes in which there are reasonable prospects that the factual matrix of the case would receive different treatment from another court or where there is a legitimate dispute on the law.

[5] In seeking leave to appeal, various grounds were set out in the Notice of application and the submissions, which for the purposes of this judgment I do not deem necessary to restate in full, save to state that the language and tone used in these papers is purposefully directed at the reasoning in the judgment. What needs to be reiterated however for the purposes of context is that the dismissed urgent application came about because of a refusal by the ex-employees to voluntarily disclose certain information as requested by the applicant for a variety of reasons. An application for a disclosure before the CCMA was made and refused. Since then, review proceedings were launched against the CCMA’s ruling as well as a refusal to postpone the arbitration proceedings.

[6] Amongst the grounds relied on is that the Court committed a material error of facts by relying on an incorrect date of dismissal in respect of the first to ninth respondents. This is so since the Court had in the main judgment recorded that the dismissal had occurred in March 2018 instead of 31 March 2020. In that respect, it was contended that this material error had culminated in the Court misunderstanding or misapplying the concepts of fairness; just and equitable; exceptional circumstances; and grave injustice.

[7] Clearly this ground does not go to the substance of the order nor can it seriously be said it is of such material nature as to a compelling reason for the LAC to consider the leave to appeal. This ground is demonstrative of nit-picking on the part of the applicant and it is indeed superfluous as correctly pointed out on behalf of the ex-employees. The fact remains that since the dismissal of the individual respondents even if it took place in March 2020, as of 13 February 2023 when the main application was brought, the arbitration hearing before the CCMA had not even started. The point that was being made in the judgment was that with all the delays clearly caused by the applicant, this did not enhance in any manner the expeditious resolution of disputes which the Labour Relations Act[9] (LRA) calls for.

[8] Furthermore, it was contended that the Court committed a misdirection in respect of the principle that arbitration proceedings are a hearing de novo together with the proper understanding of what that principle entails and moreover the effect on the probative material admitted into evidence in those proceedings. It was contended that the Court’s conclusions in this respect conflicted with the jurisprudence of this Court and of the LAC. It was further contended that the Court’s misunderstanding of the principles of a de novo hearing culminated in the Court’s failure to recognise the trite law on the meaning of a prima facie right and irreparable harm together with the purported infringement of the applicant’s rights to a fair labour practice; fair hearing; access to courts; and equality.

[9] I do not deem it necessary to address this ground of appeal in any specific detail in the light of what was stated in the main judgment in that regard. Furthermore, all that can be added is that there is nothing that can be read into the judgment to imply that the applicant was prohibited from adducing any further evidence in support of the reasons that led to the dismissal, and clearly the applicant purposefully misread the import of paragraphs 31 to 33 of the main judgment. In the end however, any further evidence sought by the applicant as evident from repeated assertions in the main answering affidavit and in the submissions in opposition

to this leave to appeal, is neither in the possession and control of the ex-employees, and some if not most of it can be obtained through other means except having to try to extract it directly from them.

[10] It was further contended that the Court committed an error by in effect making findings in respect of the review application in circumstances where the Court had no requisite authority to do so. How it can be argued that this Court in an urgent application before it could possibly have made findings in respect of a review application before it is beyond me. Of course, the Court was

entitled to have regard to inter alia the underlying causa when considering whether a stay should be granted or not. The mere fact that the import of the main judgment is that the arbitration

proceedings ought to proceed on account of the urgent application for a stay having failed can only imply that based on the underlying

causa pleaded, the Court was not satisfied that there was a reason to grant the stay, i.e., a case for a prima facie right and all other requirements for interim relief, and that exceptional circumstances, had not been established.

[11] It is not even necessary to deal with whether the Court misdirected itself in respect of the issue of costs. Full reasons why the costs were awarded can be gleaned from the main judgment and more need not be said.

[12] In the end however, there is a specific reason why the provisions of section 158(1B) of the LRA[10] were enacted, and it is clearly something that the applicant fails to appreciate with its urgent application and compounded by this very application. Worst still, the applicant fails to appreciate that the rulings issued by the CCMA pertaining to the disclosure or even the order of this Court in the main judgment, were interlocutory in nature as correctly pointed out on behalf of the ex-employees. This is so in that the matter is still pending before the CCMA where the parties will be afforded an opportunity to have their respective say in the matter. Clearly a refusal to grant a stay of proceedings is hardly final and determinative in nature.

[13] There is an abundance of authority on the folly of appealing such orders[11]. In fact, the Constitutional Court in International Trade Administration Commission v SCAW South Africa (Pty) Ltd[12] dealing with an interim interdict, warned that courts are reluctant to encourage wasteful use of judicial resources and legal costs by allowing appeals against interim orders that have no final effect. This was so in that such appeals had the effect of delaying the final determination of disputes. For reasons that cannot be explained, the applicant nonetheless fails to appreciate that basic premise.

[14] In the end, the application for leave to appeal failed to meet the threshold required. The applicant has not advanced any cogent grounds to establish any reasonable prospects that the LAC would come to a different conclusion on appeal, nor has it demonstrated any compelling reasons why the appeal should be heard. If ever there is any substantial importance attached to this matter, it is that of the right of the ex-employees to have their dispute expeditiously determined before the CCMA. Consequently, the application for leave to appeal falls to be dismissed.

[15] I have further had regard to the requirements of law and fairness regarding an order of costs. I agree with the submissions made on behalf of the ex-employees that indeed this application was ill-conceived. For the same reasons advanced in the main judgment at paragraph 38, it is my view that similarly, the applicant should be burdened with the costs of this application.

[16] 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] Section 17(1)(a)(ii) of the SCA

[3] See also (Pty) United plant Hire Ltd v Hills and others 1976 (1) SA 717 (A)

[4] (2016) 37 ILJ 1485 (LC) at para 3.

[5] See Centre for Autism Research and Education CC v Commission for Conciliation, Mediation and Arbitration and others (2) [2020 12 BLLR 1260 (LC) at para 2.

[6] 2012 (1) SACR 567 (SCA) at para 7; see also Kruger v S 2014 (1) SACR 369 (SCA) at para 2.

[7] See also Ramakotsi and others v African National Congress and another [2021] ZASCA 31 at para 10, where it was stated, inter alia: ‘The test of reasonable prospects of success postulates dispassionate decision based on the facts and the law that

a court of appeal could reasonably arrive at a conclusion different than that of the trial court. In other words, the appellants in this matter need to convince this court on proper grounds that they have prospects for success on appeal. Those prospects of success must not be remote, but there must exist a reasonable chance of succeeding. A sound rational basis for the conclusion that the prospects of success must be shown to exist'.

[7] See also Ramakotsi and others v African National Congress and another [2021] ZASCA 31 at para 10, where it was stated, inter alia:

‘The test of reasonable prospects of success postulates dispassionate decision based on the facts and the law that

a court of appeal could reasonably arrive at a conclusion different than that of the trial court. In other words, the appellants in this matter need to convince this court on proper grounds that they have prospects for success on appeal. Those prospects of success must not be remote, but there must exist a reasonable chance of succeeding. A sound rational basis for the conclusion that the prospects of success must be shown to exist'.

[8] (2014) 35 ILJ 2399 (LAC) at 2405J – 2506E.

[9] Act 66 of 1995, as amended.

[10] Which provides: ‘The Labour Court may not review any decision or ruling made during conciliation or arbitration proceedings conducted under the auspices of the Commission or any bargaining council in terms of the provisions of this Act before the issue in dispute has been finally determined by the Commission or the bargaining council, as the case may be, except if the Labour Court is of the opinion that it is just and equitable to review the decision or ruling made before the issue in dispute has been finally determined.’

[10] Which provides:

‘The Labour Court may not review any decision or ruling made during conciliation or arbitration proceedings conducted under the auspices of the Commission or any bargaining council in terms of the provisions of this Act before the issue in dispute has been finally determined by the Commission or the bargaining council, as the case may be, except if the Labour Court is of the opinion that it is just and equitable to review the decision or ruling made before the issue in dispute has been finally determined.’

[11] Zweni v Minister of Law and Order 1993 (1) SA 523 (A); Atkin v Botes 2011 (6) SA 231 (SCA); National Treasury and Others v Opposition to Urban Tolling Alliance and Others [2012] ZACC 18; 2012 (6) SA 223 (CC); 2012 (11) BCLR 1148 (CC).

[12] [2010] ZACC 6; 2012 (4) SA 618 (CC); 2010 (5) BCLR 457 (CC).