Van Wyk v Khewija Engineering and Construction (J 859/2022) [2022] ZALCJHB 249 (12 September 2022)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: J 859/2022

In the matter between:

CHRIS VAN WYK

Applicant

And

KHEWIJA ENGINEERING AND CONSTRUCTION

Respondent

Decided: In Chambers

Delivered: 12 September 2022

This judgment was handed down electronically by circulation to the parties by email. The date for hand-down is deemed to be on 12 September 2022.

JUDGMENT: APPLICATION FOR LEAVE TO APPEAL

PRINSLOO J

[1] The Respondent filed an application for leave to appeal against the order handed down on 26 July 2022.

[2] The Respondent filed its application for leave to appeal on 29 July 2022. On 3 August 2022, and subsequent to the filing of the said application, the Respondent requested reasons for the order that was handed down on 26 July 2022.

[3] The reasons for the order were provided to the parties on 23 August 2022. On the same date, my associate directed the parties to file submissions, as per paragraph 15 of the Practice Manual of the Labour Court of South Africa[1] (Practice Manual).

[4] Paragraph 15 of the Practice Manual deals with applications for leave to appeal and provides as follows in paragraph 15.2:

‘Within 10 days of the filing of the application for leave to appeal, the party seeking leave must file its submissions in terms of Rule 30(3A) and the party opposing the leave must file its submissions five days thereafter. An application for leave to appeal will be decided by the judge in Chambers on the basis of the submissions filed in terms of Rule 30 (3A), unless the judge directs that the application be heard in open court.’

[5] The parties were directed to file submissions in respect of the application for leave to appeal, as per paragraph 15 of the Practice Manual on 23 August 2022, thus the submissions had to be filed by 6 September 2022. My associate followed up with the Respondent as to whether it intended to pursue the application for leave to appeal and she enquired as to when the submissions would be filed. No response was received.

[6] No submissions were filed by the Respondent on 6 September 2022, nor was any application filed to condone the non-compliance with the provisions of the Practice Manual.

[7] Be that as it may, the application for leave to appeal will be considered and decided on the application only as no submissions were filed.

The test for leave to appeal

[8] It is trite that there is no automatic right of appeal against a judgment of the Labour Court. This much is clear from section 166(1)

of the Labour Relations Act[2] (LRA) which provides that any party to any proceedings before the Labour Court may apply for leave to appeal to the Labour Appeal Court (LAC) against any final judgment or final order of the Labour Court. In order to be entitled to leave to appeal, an applicant in an application for leave to appeal must satisfy this Court that there is a reasonable prospect that another court would come to a different conclusion[3].

[9] The test is not whether or not there is a possibility that another court could come to a different conclusion, the test is whether or not there is a reasonable prospect that another court would come to a different conclusion.

[10] It is further trite that an applicant in an application for leave to appeal must convince the court a quo that it has reasonable prospects of success on appeal. Appeals should be limited to matters where there is a reasonable prospect that the factual matrix could receive a different treatment or where there is some legitimate dispute on the law.

[11] In Seatlholo and Others v Chemical, Energy, Paper, Printing, Wood and Allied Workers Union and Others,[4] this Court confirmed that the test applicable in applications for leave to appeal is stringent and held as follows:

‘The traditional formulation of the test that is applicable in an application such as the present requires the court to determine

whether there is a reasonable prospect that another court may come to a different conclusion to that reached in the judgment that is sought to be taken on appeal. As the respondents observe, the use of the word “would” in s17(1)(a)(i) are indicative of a raising of the threshold since previously, all that was required for the applicant to demonstrate was that there was a reasonable prospect that another court might come to a different conclusion (see Daantjie Community and others v Crocodile Valley Citrus Company (Pty) Ltd and another (75/2008) [2015] ZALCC 7 (28 July 2015). Further, this is not a test to be applied lightly – the Labour Appeal Court has recently had occasion to observe that this court ought to be cautious when leave to appeal is granted, as should the Labour Appeal Court when petitions are granted. The statutory imperative of the expeditious resolution of labour disputes necessarily requires that appeals be limited to those matters in which there is a reasonable prospect that the factual matrix could receive a different treatment or where there is some legitimate dispute on the law (See the judgment by Davis JA in Martin and East (Pty) Ltd v NUM (2014) 35 ILJ 2399 (LAC), and also Kruger v S 2014 (1) SACR 369 (SCA) and the ruling by Steenkamp J in Oasys Innovations (Pty) Ltd v Henning and another (C 536/15, 6 November 2015)’.

[12] In deciding this application for leave to appeal, I am also guided by the dicta of the Supreme Court of Appeal where it held in Dexgroup (Pty) Ltd v Trustco Group International (Pty) Ltd and Others[5] that:

‘…The need to obtain leave to appeal is a valuable tool in ensuring that scarce judicial resources are not spent on appeals that lack merit. It should in this case have been deployed by refusing leave to appeal.’

This application

[13] The Applicant approached this Court on an urgent basis for relief, seeking an order that he be paid his monthly salary, with benefits, for May, June and July 2022.

[14] The Respondent opposed the application primarily on the grounds of urgency. Exercising its discretion and after a consideration of all the relevant factors, this Court dealt with the matter on an urgent basis.

[15] It is evident from the grounds for appeal raised by the Respondent that issue is taken with the fact that this Court dealt with the application on an urgent basis. The merits of the case are not raised as a ground for leave to appeal and that is not surprising as the merits were conceded during the argument of the matter.

[16] The gist of the Respondent’s case is that the Court should have found that the matter was not urgent and if the Court found that the matter did not warrant urgency, the relief would not have been granted to the Applicant. The Respondent’s case is not that the Applicant was not entitled to the relief granted or that this Court had erred in granting the relief it granted on 26 July 2022.

[17] In deciding whether a matter is to be adjudicated on an urgent basis, the Court exercises a discretion.

[18] In MEC for Environmental Affairs and Development Planning v Clairison’s CC,[6] the Supreme Court of Appeal described the test that applies to the review of a discretion as follows:

‘[18] When the law entrusts a functionary with a discretion it means just that: the law gives recognition to the evaluation made by the functionary to whom the discretion is entrusted, and it is not open to a court to second-guess his evaluation. The role of a court is no more than to ensure that the decision-maker has performed the function with which he was entrusted.

…

[22] …The law remains, as we see it, that when a functionary is entrusted with a discretion, the weight to be attached to particular factors, or how far a particular factor affects the eventual determination of the issue, is a matter for the functionary to decide, and as he acts in good faith (and reasonably and rationally) a court of law cannot interfere.’

[19] When the exercising of a discretion is challenged, the test that the court, called upon to interfere with the discretion, will apply is to evaluate whether the decision maker acted capriciously, or upon the wrong principle, or with bias, or whether or not the discretion exercised was based on substantial reasons or whether or not the decision maker adopted an incorrect approach.

[20] Considering the test to be applied in challenging a discretion, the Respondent has not made out a case to show that there is a possibility that the Labour Appeal Court would come to a different conclusion.

[21] This application for leave to appeal is effectively to say that the Court should not have dealt with the matter urgently, notwithstanding the fact that the Respondent has no defence on the merits of the case. Had the Court not dealt with the matter urgently, the relief, to which the Applicant is entitled, should not be granted on an urgent basis but in due course. This application borders on an abuse of process.

Conclusion

[22] I have considered the grounds for appeal and applying the applicable test, I am not convinced that the Respondent has made out a case that passed the test and the high threshold of a reasonable prospect that another court would come to a different conclusion. More so where the appeal is premised on an attack on urgency only.

[23] In the premises, I make the following order:

Order

1. The application for leave to appeal is dismissed.

Connie Prinsloo

Judge of the Labour Court of South Africa

[1] Practice Manual of the Labour Court of South Africa, effective 1 April 2013.

[2] Act 66 of 1995, as amended.

[3] See: Woolworths Ltd v Matthews [1999] 3 BLLR 288 (LC).

[4] (2016) 37 ILJ 1485 (LC) at para 3.

[5] 2013 (6) SA 520 (SCA) at para 24.

[6] 2013 (6) SA 235 (SCA) paras 18 and 22.