Solidarity obo Members v Sahara African Living (Pty) Ltd - Application For Leave to Appeal (JS829/21) [2024] ZALCJHB 245 (24 June 2024)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case No: JS829/21

In the matter between:

SOLIDARITY obo

MEMBERS

Applicant

and

SAHARA AFRICAN LIVING (PTY)

LTD

Respondent

Heard: In Chambers

Delivered: 24 June 2024

This judgment was handed down electronically by circulation to the parties’ legal representatives by email. The date for hand-down

is deemed to be 24 June 2024.

JUDGMENT:

APPLICATION

FOR LEAVE TO APPEAL

MAKHURA, J

[1] The respondent applies for leave to appeal against the substantial part of the judgment and order of this Court issued on 17 April 2024. The matter relates to two primary claims lodged by the applicant relating to (1) a claim for breach of contract lodged in terms of section 77(3) read with sections 73A(3) and 77A(e) of the Basic Conditions of Employment Act (BCEA)[1] and (2) an unfair dismissal claim in terms of section 191(5)(b)(ii) of the Labour Relations Act (LRA)[2]. Related to the latter claim, the applicant also claimed notice pay, which is regulated in terms of section 37(1) of the BCEA.

[2] The test for applications for leave to appeal is set out under section 17(1) of the Superior Court Act. An application for leave to appeal would succeed if the appeal would have a reasonable prospect of success or if there is some other compelling reason why the appeal should be heard, including conflicting judgments on the matter under consideration.

[3] The respondent’s application is opposed by the applicant. I have considered the grounds upon which leave to appeal is sought and the parties’ respective written submissions. I note that the respondent does not seek leave to appeal the judgment and order insofar as they relate to Burton’s breach of contract claim and the payment of shortfall of March 2020 salaries. The leave to appeal application is therefore limited to the judgment and order relating to the breach of contract claims of Steyn and Clark, the unfair dismissal or retrenchment dispute and the claim for notice pay.

[4] The respondent accepts the Court’s findings insofar as they relate to Burton but not Clark and Steyn. The parties referred me to the judgment in Solidarity obo members v Sahara African Aviation Operation (Pty) Ltd[3] (Solidarity I), where this Court, dealing with a claim for breach of contract, granted leave to appeal. The Court in Solidarity I dealt with that matter on its facts and clearly adopted a different legal approach to the one adopted in this matter. These two matters do not in my view give rise to conflicting judgments on this issue. In casu, the respondent conceded, correctly so, that it unilaterally changed the terms and conditions of the employees’ contracts of employment. This was fatal. The respondent’s appeal would have no prospects of success and stands to be refused.

[5] With regard to the application for leave to appeal against the judgment and order in respect of the unfair retrenchment dispute, the respondent’s case was woeful and hopeless. On the facts and the applicable legal principles, the appeal in this regard would have no prospects of succeeding and there are no compelling reasons to burden the appeal court with this issue. Equally, the application for leave to appeal against the findings and order that the respondent must pay the employees their notice pay has no merit and stands to fail.

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

Order

1. The application for leave to appeal is dismissed.

2. There is no order as to costs.

M. Makhura

Judge of the Labour Court of South Africa

[1] Act 75 of 1997.

[2] Act 66 of 1995, as amended.

[3] (2024) 45 ILJ 1084 (LC).