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THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case No:  JR42/19

In the matter between:

PIETER JAQUES HORN                                                             Applicant

and

COMMISSIONER BEESNAAR N.O.                                            First Respondent

KUMBA IRON ORE (KOLOMELA MINE)                                     Second Respondent

THE COMMISSION FOR CONCILIATION

MEDIATION AND ARBITRATION                                                  Third Respondent

NALEDI LOCAL MUNICIPALITY                                                    Fourth Respondent

Heard   :         In chambers

Delivered:     This judgment was handed down electronically by circulation to the parties’ representatives by email and release to SAFLII. The date and time for hand-down is deemed to be 10h00 on 09 September 2020.  

JUDGMENT- LEAVE TO APPEAL

RHEEDER, AJ

Introduction

[1]           The applicant filed an application for leave to appeal on 30 October 2019, against the judgement of this Court on 9 October 2019. The application for leave to appeal was accompanied by an application for amendment of the applicant’s notice of motion, served on the same date. The application for leave to appeal was submitted timeously in terms of rule 30 of the Rules of Court. Although the review was unopposed, the second respondent filed a notice of intention to oppose the application for leave to appeal. The written submissions opposing the application for leave to appeal were served and filed timeously.

Test for leave to appeal

[2]           Section 17 (1) of the Supreme Courts Act[1] reads as follows:

'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;

[3]           This Court succinctly summarised the test for leave to appeal in the matter of Seathlolo and Others vs Chemical Energy Paper Printing Wood and Allied Workers Union and Others[2] 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.”[3]

[4]           Therefore, in order for the applicant to succeed in an application for leave to appeal it must be shown that another Court, faced with the same material, would arrive at a different conclusion.

[5]           The second respondent correctly also referred to the matter of Martin & East (Pty) Ltd v National Union of Mineworkers and others[4]  where the Labour appeal court held that the interest of the appellant to have his rights vindicated if there is a reasonable prospects that another court may come to a different conclusion and the interest of the respondent which may have to wait years for an appeal to be prosecuted. Secondly, where the matter is resolved on own facts, no new point of law, no misinterpretation of existing law, then the matter must end at the Labour Court.

Application for amendment

[6]           The applicant, in essence, argues that the application for amendment should be granted as it was always his intention to apply for a procedural and substantive unfair dismissal. Furthermore, that it would not cause an injustice nor is it mala fide.

[7]           The applicant further argues that the amendment should be allowed if such an amendment facilitates the proper ventilation of the dispute between the parties.

[8]           The applicant’s attorney explained the failure to pray for a remedy based on a procedural irregularity as an oversight by the attorney for which neglect the applicant should not be punished.

[9]           The second respondent opposed the application and pointed out that the amendment should not be granted as it is late and at odds with the prayers in the notice of motion. Furthermore, that the procedural irregularity was not supported by evidence in the arbitration and that a late amendment at leave to appeal is only allowed in exceptional circumstances.

[10]        The applicant loses sight of the fact that he presented no evidence on procedural irregularity during the arbitration. It is therefore difficult to fathom how a review court must review the first respondent’s conduct and finding on procedure, in the absence of evidence.

[11]        The applicant is indeed trying to advance a case of procedural irregularity at a very late stage, which case is different from the case during arbitration and consequently the subject of review. Advancing any evidence to this effect on appeal will place the Labour Appeal Court in the situation where it will be requested to adjudicate procedural irregularities de novo[5], as procedural irregularities were not fully canvassed during arbitration and on review[6].  The applicant is not before the court as a lay person. He was at all relevant times represented by an attorney and the matter was up to this application, unopposed. The applicant had ample opportunity to amend his notice of motion.

[12]        Another factor to consider is whether prejudice will be occasioned to the respondents, in particular the second respondent. In casu, the second respondent stand to suffer prejudice as granting this application will place it at an impossible task to defend allegations which never came before the first respondent on arbitration. The pre-arbitration agreement is of no help. It merely states that procedure is in dispute and the applicant elected not to make an opening statement, nor did he testify or lead evidence on procedural irregularities. The cross examination of the chairman of the disciplinary hearing mainly resolved around his perceived bias emanating from remarks he made during breaks and the fact that he made a wrong decision. It is noted that the applicant, in his application, does not state what procedural irregularity or irregularities he wants to attack on appeal and it is therefore not possible to discern whether the irregularities were properly ventilated before the commissioner or the review court.

[13]        The applicant did not advance any exceptional circumstances nor could I find any.

[14]        For these reasons, the application for amendment is denied.

Grounds for leave to appeal

[15]        The fact that the applicant disputed procedure in a blanket statement in the pre-arbitration minutes does not constitute evidence as to what procedural irregularity the second respondent committed. The finding of the first respondent, in light of the lack of evidence before him on this point, is not unreasonable and another court is not likely to come to a different conclusion on this point. 

[16]        The applicant, in his grounds for leave to appeal, clearly favours a different view of the evidence, its interpretation and the burden of proof before the first respondent. The applicant presents various reasons why the first respondent was wrong. This is not the test for review in this court.

[17]        Even if the amendment was granted, a finding of procedural irregularity may not assist the applicant, as he still prays for retrospective reinstatement only.

[18]        Although the applicant strongly argues that the first respondent was incorrect in his findings and the award, I am not convinced that there is a reasonable prospect that another court may come to a different conclusion, if the test for review is correctly applied. The evidence, or lack thereof, as is evident from the record of the proceedings before the first respondent, was properly considered by him. He made a decision which another reasonable decision maker would or could also have made. This was based on the evidence before him and the applicant cannot go beyond that in an appeal.

[19]        The matter can clearly be resolved on its own facts, no new point of law is raised nor is there any misinterpretation of existing law. The matter must end at the Labour Court.

[20]        Accordingly, the following order is made;

Order:

1.            The application for leave to appeal is dismissed.

2.            There is no order as to costs.

                                                                                  ___________________________

JS Rheeder

Acting Judge of the Labour Court of South Africa

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