Tleane v National Bargaining Council for the Road Freight and Logistics Industry & Others (JR 1194/17) [2021] ZALCJHB 100 (7 June 2021)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

JR 1194/17

In the matter between:

BROWN MOTHIKENG

TLEANE Applicant

and

NATIONAL

BARGAINING COUNCIL FOR THE

ROAD FREIGHT AND

LOGISTICS INDUSTRY First Respondent

H.B. DOCRAT N.O. Second Respondent

STAFFING LOGISTICS (PTY) LTD – DHL SUPPLY CHAIN Third Respondent

Decided 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 hand-down is deemed to be 7 June 2021 at 11:00

JUDGMENT: LEAVE

TO APPEAL

TLHOTLHALEMAJE, J

[1] On 20 January 2021, this Court delivered a judgment and order in terms of which the applicant’s application to review and set aside the ‘jurisdictional ruling’ dated 29 March 2017 issued by the second respondent (Arbitrator) acting under the auspices of the first respondent (NBCRFLI) was dismissed.

[2] The applicant has since filed an application for leave to appeal against the whole judgment and order. The third respondent opposes the application and further raises a point in limine contending that the applicant’s application for leave to appeal was filed belatedly.

[3] In respect of the point in limine, it is uncontested that the applicant had received the written judgment on 8 February 2021. The third respondent nevertheless contends that the applicant ought to have in terms of rule 9(2) of the Rules of this Court filed his application within 10 days from the date of receipt of the judgment.

[4] It is however trite that the time periods for the filing of an application for leave to appeal must be computed in terms of the provisions of rule 30(2) of the Rules of this Court. The provisions of rule 30(2) affords a party a period of 15 days in which to file its notice for leave to appeal.

[5] It is further trite that in an event that a party does not receive a judgment on the date that it is delivered, the time periods contemplated in terms of rule 30(2) of the Rules of this Court must to be computed from the date in which the party became aware of the judgment.

[6] In this case, the applicant averred that he received a copy of the judgment on 8 February 2021. The dies for the filing of the application for leave to appeal would have been 2 March 2021, and the applicant filed his application on 26 February 2021. The filing of the application was therefore within the prescribed timeframes. It follows therefore that the preliminary point raised on behalf of the third respondent lacks merits and must thus be dismissed.

[7] In respect of the grounds for leave to appeal, it was correctly pointed out by the third respondent in opposing the application that the grounds upon which leave top appeal is sought essentially constitute a rehashing of the issues that were raised in the review application and dealt with by the Court in its judgment. It is therefore not even necessary to deal with each ground upon which leave to appeal is sought.

[8] The principles applicable in applications for leave to appeal are well-known. The Court whose judgment and order is the subject of an application for leave to appeal, must determine whether or not there are reasonable prospects that the facts before it would receive different treatment from another Court and/or whether there is a legitimate legal issue that deserves the attention of another Court, including but not limited to the existence of conflicting judgments on the subject-matter. In Smith v S, the test was summarised 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."[1]

[9] Having had regard to the above principles, and further having reflected on my judgment and order, it is concluded that further based on the grounds upon which leave to appeal is sought, the submissions made in that regard, and the third respondent’s written submissions in opposition thereto, there exist no reasonable prospects that another court would come to a different conclusion to that reached by this Court. The application for leave to appeal and the submissions made in that regard do not raise any novel issues or issues of law, and there is no sound or rational basis for any conclusion to be reached that this application enjoys even remote prospects of success.

[10] The third respondent sought a costs order against the applicant for pursuing this meritless dispute. To a large extent I agree that this dispute should have ended at a point when the Arbitrator issued a ruling on 29 March 2017, and essentially advised the applicant what further steps he ought to have taken, if he insisted on pursuing his alleged unfair dismissal dispute. The applicant nonetheless failed to take heed and instead persisted with this hopeless matter. Inasmuch as I agree that a costs order would have been warranted, the requirements of justice however militates against such an order.

[11] Accordingly, the following order is made;

Order:

1. The third respondent’s point in limine is dismissed.

2. The applicant’s application for leave to appeal is dismissed.

3. There is no order as to costs.

Edwin Tlhotlhalemaje

Judge of the Labour Court of South Africa

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