About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: South Gauteng High Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: South Gauteng High Court, Johannesburg
>>
2014
>>
[2014] ZAGPJHC 322
|
|
Mokgatla and Others v South African Municipal Workers Union and Others (21815/2014) [2014] ZAGPJHC 322 (12 November 2014)
REPUBLIC
OF SOUTH AFRICA
GAUTENG
HIGH COURT, JOHANNESBURG LOCAL DIVISION
CASE
NO: 21815/2014
DATE:
12 NOVEMBER 2014
In
the matter between:
Mohau
Williams Mokgatla
.....................................
First
Applicant
NomfezoMdingi
.................................................
Second
Applicant
Dion
Makhura
.....................................................
Third
Applicant
PhumlileShange
.................................................
Fourth
Applicant
SelloSelepe
............................................................
Fifth
Applicant
Jacob
Modimoeng
...............................................
Sixth
Applicant
Lance
Veotte
...................................................
Seventh
Applicant
Andre
Adams
....................................................
Eighth
Applicant
ZakheleKhumalo
...............................................
Ninth
Applicant
WycliffMabusela
................................................
Tenth
Applicant
Kennedy
Nkosi
.............................................
Eleventh
Applicant
KgosiMakwati
................................................
Twelfth
Applicant
ThabisileManqele
......................................
Thirteenth
Applicant
NtokozoNzura
.........................................
Fourteenth
Applicant
MampetiMalete
..........................................
Fifteenth
Applicant
NomceboGumede
......................................
Sixteenth
Applicant
And
South
African Municipal Workers Union
...............
First
Respondent
Samuel
Molope
.................................................
Second
Respondent
John
Dlamini
.......................................................
Third
Respondent
Lorraine
Baitsiwe
..............................................
Fourth
Respondent
Walter
Theledi
......................................................
Fifth
Respondent
Moses
Miya
.........................................................
Sixth
Respondent
JUDGMENT
(Section 18 and Rule 49(11))
Vally
J:
1.
The
applicants apply in terms of s 18 of the Superior Court Act 10 of
2013 (the SCRT) read with Rule 49(11) of the Uniform Rules
of Court
for an order that allows for the operation and execution of an order
made by the Court as part of a judgment delivered
on 29 September
2014 (the main judgment). There has also been an application for
leave to appeal to the Supreme Court of Appeal
(the SCA) against the
mainjudgment, brought by the respondents. A judgment in that
application has been delivered at the same time
as this judgment, and
for reasons of convenience the two judgments, though related, have
not been combined.
2.
Prior
to the enactment of s 18 of the SCRT an application of this nature
was governed by the provisions of Rule 49(11). Rule 49(11)
is simply
stated. It provides:
“
When
an appeal has been noted or an application for leave to appeal
against or to rescind, correct or vary an order of a court has
been
made, the operation and execution of the order in question shall be
suspended, pending the decision of such an appeal or application,
unless the court which gave such order, on the application of a
party, otherwise directs.
”
3.
An
extensive body of common law was developed as a result of its
application. A comprehensive account of this common law can be
found
in the admirably reasoned judgment of Corbett JA (as he then was) in
South
Cape Corporation (Pty) Ltd v Engineering Management Services (Pty)
Ltd.
[1]
4.
Section
18 of the SCRT has radically altered this common law. It provides:
“
18. Suspension
of decision pending appeal
.
—
(1) Subject
to subsections (2) and (3), and unless the court under exceptional
circumstances orders otherwise, the operation
and execution of a
decision which is the subject of an application for leave to appeal
or of an appeal, is suspended pending the
decision of the application
or appeal.
(2) Subject
to subsection (3), unless the court under exceptional circumstances
orders otherwise, the operation and execution
of a decision that is
an interlocutory order not having the effect of a final judgment,
which is the subject of an application
for leave to appeal or of an
appeal, is not suspended pending the decision of the application or
appeal.
(3) A
court may only order otherwise as contemplated in subsection (1) or
(2), if the party who applied to the court
to order otherwise, in
addition proves on a balance of probabilities that he or she will
suffer irreparable harm if the court does
not so order and that the
other party will not suffer irreparable harm if the court so orders.
(4) If
a court orders otherwise, as contemplated in subsection (1)—
(i)
The court must immediately record its reasons for doing so;
(ii)
The aggrieved party has an automatic right of appeal to the next
highest court;
(iii)
The court hearing such an appeal must deal with it as a matter of
extreme urgency; and
(iv)
Such order will be automatically suspended, pending the outcome of
such appeal.
(5)
For the purposes of subsections (1) and (2), a decision becomes the
subject of an application for leave to appeal or of an appeal,
as
soon as an application for leave to appeal or a notice of appeal is
lodged with the registrar in terms of the rules.
”
5.
Previously
courts were empowered with a wide discretion, based on their inherent
jurisdiction, when determining whether to grant
an order allowing
execution pending the outcome of an appeal or not. That discretion
has been curtailed by the enactment of sub-sections
(2) and (3).
Sub-sections (4) and (5), too, are innovative. They now make it
imperative for the court hearing the matter to immediately
record its
reasons if it decides to grant the application to execute, and they
bestow upon the losing party a right to an automatic
appeal which has
to be treated “
as
a matter of extreme urgency
”
by the appellate court.This particular innovation is radical.
Previously,
an
order made in terms of Rule 49(11) was purely interlocutory and,
therefore, not appealable.
[2]
The
court granting the order always had the power to vary it on
application, should it be appraised of changed circumstances.
[3]
This
can no longer occur as the losing party is now afforded an appeal,
and once the appellate court upholds the order it becomes
an order of
that court. It is no longer an order of the court
a
quo
that initially granted it. The court
a
quo
cannot vary a judgment or order of an appeal court.
The
logic underlying these innovations is not clear, and it is yet to be
seen if they will be of any benefit to the public at large,
or if
they are to have any positive effect on the administration of
justice.
6.
In
terms of sub-sections (2) and (3) the applicants are required to show
that:
[4]
6.1.
there
exists “
exceptional
circumstances
”
warranting the operation and execution of the judgment pending the
outcome of the appeal; and,
6.2.
on
a balance of probabilities:
6.2.1.
they
suffer irreparable harm should the order not be made operational;
and,
6.2.2.
there
is no irreparable harm to the respondents, who may, if they prosecute
an appeal, succeed in overturning the judgment and order
granted in
the main case.
7.
The
applicants point out that this Court found that they were unlawfully
treated. They have, without cause, been denied the benefits
of their
membership of the first respondent. They have suffered harm as a
result thereof, but as time proceeds the harm increases
and is in
danger of becoming irreparable. In this case they point to the fact
that two of them, applicants 6 and 7, have already
suffered
irreparable harm notwithstanding the fact that they were successful
in this Court. The harm they refer to concerns their
right to stand
for elections to official posts within the structures of the first
respondent. These structures are identified in
the main judgment.
Elections for the posts for which applicants 6 and 7 should have been
eligible to stand have already been held.
They were not allowed to
stand for these posts as applicant 6 was suspended and applicant 7
was expelled.
[5]
The
finding of this Court that the suspension of applicant 6 and the
expulsion of applicant 7 was unlawful has not benefitted them.
The
applicants contend that should the same fate befall the rest of the
applicants then the order of this Court would be rendered
nugatory.
By not being allowed to stand for election, both they and the members
who wish to vote for them are prejudiced. This,
in my view,
constitutes exceptional circumstances warranting the intervention of
this court. It also demonstrates that the applicants
suffer
irreparable harm should they await the completion of the appeal
process.
8.
The
respondents do not deny that the first respondent has commenced with
elections and do not deny that the applicants will suffer
the harm
referred to by the applicants. What they say in response is that the
first respondent will suffer as much, if not greater,
harm then the
applicants should the order be made operational pending the appeal.
The harm they claim the first respondent is at
risk of suffering
arises from:
8.1.
A
decision of the greater Johannesburg Region of the first respondent,
to which four of the applicants belong (the four are not
identified),
to call on the City of Johannesburg, one of the employers of the
first respondent’s members, to no longer pay
the subscriptions
of the members of that Region to the first respondent but to instead
pay it to another party, called Qlink.
8.2.
The
conduct of the applicants’ “
faction
”
which consists of the formation of a new trade union, called the
Azanian Municipal Workers Union (AMWU) and the recruitment
of the
first respondent’s members for AMWU. In support of this
allegation the respondents attach a blank membership form
of AMWU.
9.
On
the first allegation it is important to note the following. Firstly,
the respondents only claim that the Region (Johannesburg
Region) to
which four of the applicants belong has taken such a decision. They
do not show that any of the applicants are responsible
for the
decision. Secondly they do not present any evidence of a causal
connection between the decision of the Johannesburg Region
and the
actions of any of the applicants. Thirdly, they do not claim or show
that the decision has resulted in the first respondent
suffering any
harm. On the contrary, they claim that they have been able to prevent
the City of Johannesburg and Qlink from acting
upon the request of
the Johannesburg Region. Thus, the first respondent has suffered no
harm at all by this decision.
10.
On
the second allegation, the applicants deny its veracity. The
respondents claim that the denial is bare and therefore valueless.
This, however, is not entirely correct. The allegation itself is
vague, general and refers to the applicants’ “
faction
”
not to any applicant. There are no details given of this “
faction
”
and no allegation as to which particular applicant is party to this
“
faction
”.
Under these circumstances, the denial of the applicants is not
unrealistic. Moreover, the respondents merely present a
blank
application form for membership of a rival Union. They present no
evidence to show that such a Union exists, where it operates,
or
which of the first respondents’ members have joined it because
they have been diverted away from the first respondent
by any of the
applicants. Lastly, there is an illogicality inherent to the
allegation, which the respondents were not able to explain
despite
being invited to do so at the hearing. The illogicality is this: it
makes no sense for the applicants to fight so hard
to retain their
membership of the first respondent and by so doing agree to pay
subscriptions to the first respondent, to potentially
hold office in
the first respondent, and carry the responsibility of that office,
while at the same time engage in activities to
set up, or build, a
rival Union.
11.
Finally,
if the respondents have evidence of the destructive activities
(referred to in paragraph 8 above) they claim the applicants
are
engaged in, they have remedies in terms of the constitution of the
first respondent. In other words, if any applicant is found
to be
responsible for unlawfully trying to divert the funds of the first
respondent to Qlink, or if s/he is found to be responsible
for
recruiting members for a rival Union then the first respondent can
take punitive action against him/her in terms of its constitution.
What is important, though, is that it must comply with those terms.
The form of action, and the manner in which this action is
to be
taken, is dealt with in the main judgment in greater detail.
12.
In
conclusion, the first respondent does not, in my view, suffer
irreparable harm should the order be made operational. Whatever
harm
it suffers, or is in danger of suffering, can be remedied, or
prevented.
13.
On
a more general note, I hold that if a victorious party suffers
irreparable harm because of a pending appeal, as has happened
in this
case with applicants 6 and 7, then the very foundation of our social
contract, the rule of law, will be seriously compromised.
It bears
the risk of people losing faith in the law and in the courts. Such a
consequence is not to be treated lightly.
14.
As
the judgment and order in the leave to appeal application is
delivered at the same time as this judgment, the following order
is
made:
1
The
order of this Court dated 29 September 2014 shall operate pending the
outcome of the appeal process.
2
The
costs of this application shall be the costs in the appeal.
Vally
J
Judge
of the Gauteng High Court
12
November 2014
Appearances:
For
the Applicants : Adv M Petlane with Mr Thagwana
Instructed
by : Mathopo Attorneys
For
the First Respondent : Adv R J Raath SC with Adv R Venter
Instructed
by : Maenetja Attorneys
Date
of hearing : 10 November 2014
Date
of judgment : 12 November 2014
[1]
1977
(3) SA 534
(A). See at 544H-549
in
fin
.
[2]
Id
,
at 551G-552H. See also
Minister
of Health and Others v Treatment Actions Campaign (No 1)
[2002] ZACC 16
;
2002 (5) SA 703
(CC) at
[5]
and [11]
[3]
Steytler
N. O. v Fitzerald
1911
AD 295
at 304;
Blaauwbosch
Diamonds Ltd v Union Government (Minister of Finance)
1915 AD 599
at 601
Minister
of Health and Others v Treatment Actions Campaign (No 1)
[2002] ZACC 16
;
2002 (5) SA 703
(CC) at
[11]
[4]
See
Incubeta
Holdings (Pty) Ltd and Another v Ellis and Another
2014 (3) SA 189
(GJ)
[5]
See
paras 9.1 and 9.4 of the main judgment.