Thlaule v Metal and Engineering Industries Bargaining Council and Others (JR 558/2018) [2021] ZALCJHB 125 (7 June 2021)

The Labour Court of South Africa

(Held at Johannesburg)

Not reportable

Case No: JR 558/2018

In the matter between:

SEGONE CORNELIUS THLAULE

Applicant

and

METAL AND ENGINEERING INDUSTRIES

BARGAINING COUNCIL

First Respondent

TA DLAMINI N.O

Second Respondent

THEMBELIHLE EQUIPMENT (PTY) LTD

Third Respondent

Date of judgment: 7 June 2021. Judgment delivered by email.

RULING: APPLICATION FOR LEAVE TO APPEAL

VAN NIEKERK J

[1] This is an application for leave to appeal against the whole of the judgment delivered by this court on 16 April 2021. In its judgment, the court dismissed an application to review and set aside an arbitration award issued by the second respondent.

[2] The material facts are recorded in the award under review, and I do not intend to burden this ruling with their repetition.

[3] The test to be applied is established by section 17 of the Superior Courts Act, 2013. The court must determine whether there is a reasonable prospect that another court would come to a different conclusion. The nature of the test is one more stringent than that which previously applied. In Seatlholo and others v Chemical Energy Paper Printing Wood and Allied Workers Union and others (2016) 37 ILJ 1485, the court said the following:

… the use of the word “would” in s17 (1) (a) (i) is indicative of a raising of the threshold since previously, all that was required for the applicant to demonstrate was that there was a reasonable prospect that another court might come to a different conclusion (see Daantjie Community and others v Crocodile Valley Citrus Company (Pty) Ltd and another (75/2008) [2015] ZALCC 7 (28 July 2015). Further, this is not a test to be applied lightly – the Labour Appeal Court has had occasion to observe that this court ought to be cautious when leave to appeal is granted. The statutory imperative of the expeditious resolution of labour disputes necessarily requires that appeals be limited to those matters in which there is a reasonable prospect that the factual matrix could receive a different treatment or where there is some legitimate dispute on the law.

[4] More precisely stated, the court must determine whether there is a reasonable prospect that the factual matrix would receive a different treatment or where there is some legitimate dispute on the law (see Martin & East (Pty) Ltd v NUM (2014) 35 ILJ 2399 (LAC); Acting National Director of Public Prosecutions & Others v Democratic Alliance In re: Democratic Alliance v Acting Director of Public Prosecutions & Others [2016] JOL 36123 (GP); Mothuloe Inc. Attorneys v The Law Society of the Northern Provinces & Another [2017} ZASCA 17 (22 March 2017), where the raising of the bar in applications for leave to appeal has been affirmed). In this court, there is an additional consideration. In the Martin & East judgment, Davis JA urged labour courts to take care to ensure a balance between expeditious dispute resolution and the rights of the party seeking leave to appeal.

[5] The grounds for appeal are difficult to discern. In so far as the applicant submits that it was not proven that he had committed an act of theft, the ‘sign in’ rule was not disputed, nor was the fact that the tools were found in the applicant’s possession. The applicant failed to challenge the evidence of Jan, corroborated by Khwinana, to this effect. In so far as the applicant relies on the fact that he was unrepresented at the arbitration hearing, the record indicates that he excused his representative initially present and that he confirmed that he would proceed without the benefit of his assistance. Finally, the applicant appears to have conflated an appeal and a review, and fails to appreciate the limited scope for intervention in the latter case.

[6] In short, the applicant has failed to establish that there is a reasonable prospect that another court would come to a different conclusion.

I make the following order:

1 The application is dismissed.

André van Niekerk

Judge of the Labour Court of South Africa