Osho Steel (Pty) Ltd v Ngobeni NO and Others (JR2768/17) [2019] ZALCJHB 325 (12 November 2019)

Osho Steel (Pty) Ltd v Ngobeni NO and Others (JR2768/17) [2019] ZALCJHB 325 (12 November 2019)

The Court found that the applicant failed to raise the issue of directive 11.2.3 of the Practice Manual in its pleadings or submissions during the review application. The applicant persisted with its position that the review was properly before the Court, despite clear non-compliance with Rule 7A and objections from the third respondent. The Court held that new points cannot be raised on appeal unless they were part of the original pleadings and evidence, and that the applicant's reliance on directive 11.2.3 was opportunistic and unsupported. There were no reasonable prospects that the Labour Appeal Court would reach a different conclusion. The application for leave to appeal was deemed...

Citation
[2019] ZALCJHB 325
Parties
Applicant: Osho Steel (Pty) Ltd; Respondent: Eva Ngobeni NO; Respondent: Commission for Conciliation Mediation and Arbitration; Respondent: Mahomed Rafiq Quereshi
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
12 November 2019
Case Number
JR 2768/17
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Following Dismissal of Review Application
Outcome
Application for leave to appeal dismissed with costs.
Judges
E Tlhotlhalemaje
Legal Topics
Constructive Dismissal, Review of Arbitration Award, Rule 7a Compliance, Leave to Appeal, Practice Manual Directive
Labour Law Civil Procedure Constructive Dismissal Review of Arbitration Award Rule 7a Compliance Leave to Appeal Practice Manual Directive

Case Brief

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Parties

Osho Steel (Pty) Ltd

Applicant

Eva Ngobeni NO

Respondent

Commission for Conciliation Mediation and Arbitration

Respondent

Mahomed Rafiq Quereshi

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal Following Dismissal of Review Application

Legal Issues

  1. 1 Whether the applicant demonstrated reasonable prospects of success for leave to appeal.
  2. 2 Whether the applicant was entitled to rely on directive 11.2.3 of the Practice Manual despite not raising it in the review application.
  3. 3 Whether the applicant complied with Rule 7A regarding the filing and service of the arbitration record.

Ratio Decidendi

The Court found that the applicant failed to raise the issue of directive 11.2.3 of the Practice Manual in its pleadings or submissions during the review application. The applicant persisted with its position that the review was properly before the Court, despite clear non-compliance with Rule 7A and objections from the third respondent. The Court held that new points cannot be raised on appeal unless they were part of the original pleadings and evidence, and that the applicant's reliance on directive 11.2.3 was opportunistic and unsupported. There were no reasonable prospects that the Labour Appeal Court would reach a different conclusion. The application for leave to appeal was deemed...

Court Disposition

Application for leave to appeal dismissed with costs.

Orders

  • The application for leave to appeal is dismissed.
  • The applicant is ordered to pay the costs of this application.