Tshipi Entle Manganese Mining (Pty) Ltd v Association of Mineworkers and Construction Union and Others (JS542/16) [2016] ZALCJHB 418 (2 November 2016)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Not Reportable

Case no: JS542/16

In the matter between

TSHIPI E NTLE MANGANESE MINING (PTY) LTD

Applicant

And

ASSOCIATION OF MINEWORKERS AND

CONSTRUCTION UNION

First Respondent

AMCU MEMBERS AS PER ANNEXURE

‘PDM3’ Second to Further Respondents

Decided in Chambers

Delivered: 02 November 2016

JUDGMENT – LEAVE TO APPEAL

TLHOTLHALEMAJE, J.

[1] The Applicant (Respondent in the main claim), had raised a special plea in its statement of response to the Respondents’ claim, contending that this Court lacks jurisdiction to adjudicate an alleged unfair dismissal dispute on the basis that the Respondents allegedly failed to serve it with a referral of the dispute for conciliation, and secondly that the conciliation hearing did not take place. Following the hearing of these preliminary points, a full judgment was delivered on 20 September 2016 in terms of which the following order was made;

i. ‘The preliminary points raised by the Respondent in its statement of response are dismissed with costs.

ii. To the extent that the statement of defence has been filed, the parties are directed to convene a pre-trial conference within 30 days from the date of this judgment, and to file a signed minute in that regard.’

[2] The Applicant has since filed an application for leave to appeal against the whole judgment and the order on a variety of grounds. The application is opposed by the Respondents.

[3] The background to the alleged unfair dismissal dispute between the parties was summarised in the main judgment, together with the submissions made in regards to the preliminary issued raised, and will not be repeated herein. The Applicant however seek leave to appeal on the grounds that;

3.1 The court erred in the finding that it has jurisdiction to hear the substantive unfairness dispute between the parties in the absence of proper service of a referral of the dispute to the CCMA for conciliation using the correct fax details, and in the absence of any opportunity for the substantive unfairness dispute to be conciliated. To this end, it was contended that:

3.1.1 The court erred in finding that the Respondents had substantially complied with the provisions of section 191 (3) of the LRA, read together with Rules 5 and 6 of the CCMA Rules in respect of proper service of the referral of the dispute;

3.1.2 Erred in finding that substantial compliance with the requirements relating to referral to conciliation was sufficient to confer jurisdiction;

3.1.3 In finding that the Applicant’s special plea of lack of jurisdiction was overly technical, formalistic and spurious

3.1.4 In finding that the Applicant’s reliance on the Constitutional Court decision in NUMSA v Intervalve (Pty) Ltd and others[1] was misplaced;

3.1.5 In failing to find that section 157 (4) (a) of the LRA was indicative of the importance the LRA placed upon the need for attempts to be made to try and resolve a dispute through conciliation before resorting to other methods of dispute resolution;

6.1.6 In dismissing the preliminary points with costs

[4] The test applicable to applications for leave to appeal is well established. The enquiry is whether or not there is a reasonable

prospect that another Court might come to a different conclusion to that of the Court a quo[2] .

[5] The test of reasonable prospects of success postulates 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[3]. As correctly pointed out on behalf of the Applicant in reference to R v Kuzwayo[4], the Judge in assessing the matter must seek to apply the test objectively by disabusing his mind of the fact that he/she is convinced of the correctness of his/her judgment, and should ask whether there is a reasonable prospect that a court of appeal may take a different view[5].

[6] The Respondents opposed the application on the grounds that there are no reasonable prospects that the Labour Appeal Court may come to a different conclusion as reached by the court a quo. It was contended inter alia that if the application for leave to appeal was granted, it would result in severe prejudice to the individual respondents, in the form of extensive and unnecessary delays in the determination of the main dispute. It was further contended that the application for leave to appeal was brought mainly for the purposes of delaying the final determination of the main dispute, and ought to be dismissed with costs.

[7] Upon a proper reflection on my judgment and the order made, and further having had regard to the grounds upon which leave to appeal is sought and the opposition in that regard, I am of the view that the application is indeed without merit. The grounds relied upon in seeking leave to appeal are not convincing and I am satisfied that a basis has not been laid for a conclusion to be reached that there are prospects of success on appeal. On the contrary, I hold the view that those prospects, if any, are remote, and that the Applicant has no realistic chance of succeeding in the light of the preliminary points raised and the findings made in that regard.

[8] There is therefore, no sound or rational basis for the conclusion that there are prospects of success on appeal. On the contrary, and as correctly pointed out on behalf of the Respondents, this application is merely intended to delay the finalization of the

main dispute, and it is worth repeating that the preliminary points as dealt with in the main judgment and dismissed, were indeed

spurious. To this end, the application for leave to appeal ought to be dismissed. Furthermore, to the extent that this application was in my view ill-considered, the requirements of law and fairness dictate that it ought to be dismissed with costs. Accordingly, the following order is made;

Order:

(i) The application for leave to appeal is dismissed with costs.

_________________

Tlhotlhalemaje J

Judge of the Labour Court of South Africa

[1] [2015] 3 BLLR 205 (CC)

[2] See Karbochem Sasolburg (A Division of Sentrachem Ltd) v Kriel and Others (1999) 20 ILJ 2889 (LC) at 2890B where it was held that; ‘I have understood that the test in deciding whether to grant leave to appeal is the traditional test. It requires a judge to ask whether there is a reasonable prospect that another court may come to a different conclusion. See North East Cape Forests v SAAPAWU and Others (1997) 18 ILJ 729 (LC); [1997] 6 BLLR 705 (LC) at 710A-B; NEWU v LMK Manufacturing (Pty) Ltd and Others [1997] 7 BLLR 901 (LC) and Landman and Van Niekerk Practice in the Labour Courts (Service 1) at A-41.’

[2] See Karbochem Sasolburg (A Division of Sentrachem Ltd) v Kriel and Others (1999) 20 ILJ 2889 (LC) at 2890B where it was held that;

‘I have understood that the test in deciding whether to grant leave to appeal is the traditional test. It requires a judge to ask whether there is a reasonable prospect that another court may come to a different conclusion. See North East Cape Forests v SAAPAWU and Others (1997) 18 ILJ 729 (LC); [1997] 6 BLLR 705 (LC) at 710A-B; NEWU v LMK Manufacturing (Pty) Ltd and Others [1997] 7 BLLR 901 (LC) and Landman and Van Niekerk Practice in the Labour Courts (Service 1) at A-41.’

[3] See S v Smith 2012 (1) SACR 567 (SCA) at para [7], where it was held that; ‘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] See S v Smith 2012 (1) SACR 567 (SCA) at para [7], where it was held that;

‘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.’

[4] 1949 (3) SA 761 (A) at 765

[5] See also Minister of Safety and Security and Another v Madyibi (1034/2004) [2008] ZAECHC 180 (30 October 2008) at para 20, where it was held that; “In giving consideration to the issues at hand I am enjoined by judicial authority to take due cognisance of the test which is of application in matters of this nature. Judicial authority requires of a Judge considering an application for leave to appeal to reflect dispassionately upon the decision sought to be appealed against and decide whether or not there is a reasonable prospect that the Appeal Court may come to a different conclusion. This necessarily requires of me to disabuse my mind of the fact that I was of the view when I delivered my judgment that it was supportable both on the facts of the case and the law applicable thereto”.

[5] See also Minister of Safety and Security and Another v Madyibi (1034/2004) [2008] ZAECHC 180 (30 October 2008) at para 20, where it was held that;

“In giving consideration to the issues at hand I am enjoined by judicial authority to take due cognisance of the test which is of application in matters of this nature. Judicial authority requires of a Judge considering an application for leave to appeal to reflect dispassionately upon the decision sought to be appealed against and decide whether or not there is a reasonable prospect that the Appeal Court may come to a different conclusion. This necessarily requires of me to disabuse my mind of the fact that I was of the view when I delivered my judgment that it was supportable both on the facts of the case and the law applicable thereto”.