Davies Ndumiso Sibanda
MANY employers and workers have lost a lot of money and in some instances assets in cases that are appealed to the Supreme Court without success.
There are a number of things one needs to consider before making a decision to appeal to the Supreme Court against a Labour Court judgment.
The first thing is to establish whether the matter is appealable or not, given the fact that only matters of law are appealable to the Supreme Court and only in exceptional cases where the decision of the Labour Court defies logic how it was arrived at will the Supreme Court entertain matters of fact. By this statement alone, it can be seen that deciding on matters of law and fact requires legal expertise if one is to lodge a successful appeal.
One needs to establish prospects of success, this can be done through going through the record and establishing gaps in the judgment, which must be of material nature to such an extent that the prospects of success in the higher court exist.
For example, I recall a case where the Labour Court judge made a ruling on an application for condonation while the worker had applied for the matter to be thrown out in terms of rule 19 which says, “if a lawyer fails to file heads of arguments within a stipulated time, the unrepresented party can file for the matter to be dismissed.”
The judge ignored the rule 19 application and proceeded to deal with the application for condonation. In my view in such cases if the condonation is granted as was the case in this particular matter, the worker had good grounds to apply for leave to approach the Supreme Court arguing that he was prejudiced by the Labour Court’s failure to hear him on rule 19 application prior to hearing the application for condonation.
One has to further look at pointers from similarly decided cases as these will give an indication as to whether one has chances of success or the matter could fail. There is no point in going to the Supreme Court only to lose a case as in almost all cases Supreme Court will order costs. There are four types of costs one has to look at as well and these are the costs of applying for leave to approach the Supreme Court or if leave is not granted, the cost of approaching the Supreme Court seeking permission to present your case before it.
Then there is the third cost of presenting one’s argument before the Supreme Court and the fourth cost is added on in the event one loses the case with costs. This has led to many workers losing property after losing cases.
Some people have also said there is a need to look at the track record of the Labour Court judge in terms of number of the judge’s decision that are overturned by the Supreme Court as that gives pointers as to the quality of judgment. I, however, feel this approach is too risky as each case is dealt with on its own merits.
In conclusion, before one appeals to the Supreme Court, there is a need to get expert advice from labour lawyers so as to minimise the risk of wasted costs.
Davies Ndumiso Sibanda can be contacted on: email: [email protected] or cell No: 0772 375 235.