NEHAWU v Commission for Conciliation Mediation and Arbitration and others
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | Lancaster AJ |
| Judgment Date | 20 January 2023 |
| Citation | 2023 JDR 2624 (LC) |
| Hearing Date | 20 January 2023 |
| Docket Number | JR 1970/17 |
| Court | Labour Court |
Lancaster AJ:
2023 JDR 2624 p2
Lancaster AJ
Introduction
The Applicant applies for leave to appeal against the whole judgment and order of this Court, dismissing the Applicant’s review application, in which he sought to review and set aside an arbitration award made by the second respondent in her capacity as an arbitrator of the first respondent.
The review application was argued before me on 15 January 2021 and in my judgment delivered on 8 September 2021, I dismissed the applicant’s review application with no order as to costs.
The Applicant filed its application for leave to appeal on 1 October 2021, together with submissions in respect of its application.
The Third respondent only filed its opposing submissions on 4 November 2021, together with a substantive application for condonation, which is unopposed.
Clause 15 of the Practice Manual [1] applies to applications for leave to appeal to this Court. It provides that:
‘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. . .’
The third respondent’s submissions have been filed 17 days outside of the 5 days provided for in the Practice Manual. This delay is not excessive.
I am satisfied that good cause has been shown for the late filing of the submissions and accordingly condone the late filing of same.
The below judgment has been made in chambers in terms of Clause 15.2 of the Practice Manual.
In doing so, I have considered the grounds of appeal of the Applicant as recorded in the Application for Leave to Appeal and the respective submissions filed by the parties.
2023 JDR 2624 p3
Lancaster AJ
Leave to appeal
In terms of Section 17(1)(a) of the Superior Courts Act [2] , in coming to a decision on whether leave to appeal should be granted to the Labour Appeal Court from this court, I must be determined whether:
the appeal would have reasonable prospects of success; or
there is some other compelling reason why the appeal should be heard, including conflicting judgments on the matter under consideration.’
As early as R v Ngubane and others [3] the court said the following:
‘It was for the applicants to satisfy the Court that there was a reasonable prospect of success on appeal if leave were granted. When in Rex v Nxumalo (1939 AD 580 at p. 588), the presant Chief Justice stated that there was “no probability of the applicant succeeding”, that did not mean, of course, that he had merely failed to show that there was a balance of probabilities in his favour. That test would obviously place too heavy a burden upon the applicant. Equally clearly, when Lord De Villiers, CJ., in Rex v Gannon (1911 AD 269 at p270), spoke of the appeal as “hopeless”, or Innes CJ, in Rex v Mahomed (1924 AD 237 at p238), referred to “the possibility of success”, they did not mean that leave will only...
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