UASA - Union v Anglo American Platinum Limited and Others (Leave to Appeal) (J400/23) [2024] ZALCJHB 371 (27 September 2024)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case No: J 400/23

In the matter between:

UASA-THE UNION Applicant and ANGLO AMERICAN PLATINUM LIMITED First Respondent RUSTENBURG PLATINUM MINES LIMITED Second Respondent THE MINISTER OF MINERAL RESOURCES AND ENERGY Third Respondent THE CHIEF INSPECTOR OF MINES Fourth Respondent THE PRINCIPAL INSPECTOR OF MINES: (NORTH-WEST, RUSTENBURG) REGION DEPARTMENT OF MINERAL RESOURCES AND ENERGY Fifth Respondent THE MINISTER OF EMPLOYMENT AND LABOUR Sixth Respondent THE CHIEF INSPECTOR –OHS Seventh Respondent NATIONAL UNION OF MINEWORKERS Eight Respondent ASSOCIATION OF MINEWORKERS AND CONSTRUCTION UNION Ninth Respondent

Heard: In Chambers

Delivered: 27 September 2024

JUDGMENT - LEAVE TO APPEAL

DIKOTLA, AJ

Introduction

[1] On 10 May 2024, this Court handed down its judgment in which the applicant’s application to declare the Mine Health and Safety

Act[1] (MHSA) as the applicable Act was dismissed with costs, including the costs of two Counsel. On the other hand, the Court also ruled that it lacked the necessary jurisdiction against the determination of whether the Occupational Health and Safety Act[2] (OHSA) was applicable, and as a creature of statute was not empowered by any of its provision.

[2] The applicant now applies for leave to appeal against the judgment, whereas the application is opposed by the first and second respondents, accordingly.

[3] Since this judgment against which leave to appeal is sought is detailed, I therefore do not intend to rehash my reasoning and findings thereof.

[4] In summation, the dispute between the parties concerned the applicable statute between MHSA and OHSA respectfully.

Principles to Leave of Appeal

[5] Learning from the wisdom of the Superior Court’s statutory framework, the ultimate test applicable for leave to appeal is drawn from section 17(1)(a) of the Superior Courts Act[3] which provides that:

“(1) Leave to appeal may only be given where the judge or judges concerned are of the opinion that-

(a) (i) the appeal would have a reasonable prospect of success; or

(ii) there is some other compelling reason why the appeal should be heard, including conflicting judgments on the matter under consideration.”

[6] In MEC for Health, Eastern Cape v Mkhita[4], the Supreme Court of Appeal emphasized the correct considerations in granting leave to appeal, as follows:

“[16] Once again it is necessary to say that leave to appeal, especially to this court, must not be granted unless there truly is a reasonable prospect of success. Section 17(1)(a) of the Superior Courts Act 10 of 2013 makes it clear that leave to appeal may only be given where the judge concerned is of the opinion that the appeal would have a reasonable prospect of success; or there is some other compelling reason why it should be heard.

[17] An applicant for leave to appeal must convince the court on proper grounds that there is a reasonable prospect or realistic chance of success on appeal. A mere possibility of success, an arguable case or one that is not hopeless, is not enough. There must be a sound, rational basis to conclude that there is a reasonable prospect of success on appeal.”

[7] The Supreme Court of Appeal set out the application for a test to grant leave to appeal in Cook v Morrisson and Another[5] as follows:

“[8] The existence of reasonable prospects of success is a necessary but insufficient precondition for the granting of special

leave. Something more, by way of special circumstances, is needed. These may include that the appeal raises a substantial point of law; or that the prospects of success are so strong that a refusal of leave would result in a manifest denial of justice; or that the matter is of very great importance to the parties or to the public. This is not a closed list..”

Conclusion

[8] In my view reasonable prospects of success in this matter is insufficient. However, the case as alluded above raises a substantial point of law regarding the fundamental right to health, which if not safeguarded may implicate a person’s right to life which is a sui generis right and of great importance to the public.

[9] On the other hand, the eight respondents has since instituted similar proceedings in the High Court which is of more or less same standing with the Labour Court, and that on its own should be a clear indication that the appeal should be granted in order to provide clarity and avoidance of conflicting judgments thereof.

[10] It is against the above substantial position, that leave to appeal shall succeed.

Costs

[11] Since this application concerns important questions of law pertaining to inter alia the fundamental rights as applicable within the mining industry and also a matter of public interest, costs shall be determined in the same context.

[12] In exercising its judicial discretion, the Constitutional Court in Long v South African Breweries (Pty) Ltd and Others[6], reaffirmed the principle set in Zungu v Premier of the Province of KwaZulu-Natal and Others[7], with regard to costs in employment disputes and stated that “when making an adverse costs order in a labour matter, a presiding officer is required to consider the principle of fairness and have due regard to the conduct of the parties”.

[13] In the premises, the following order is made:

Order

1. Leave to appeal is granted.

2. There is no order to costs.

B. J. Dikotla

Acting Judge of the Labour Court of South Africa

[1] No. 29 of 1996.

[2] No. 85 of 1993.

[3] No. 10 of 2013.

[4] 2016 JDR 2214 (SCA) at para 16.

[5] 2019 (5) SA 51 (SCA)

[6] (2019) 40 ILJ 965 (CC) at para 30.

[7] (2018) 39 ILJ 523 (CC) at para 25.