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[2022] ZAECMHC 18
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Padayachee v Municipal Manager, King Sabata Dalindyebo Municipality and Another (2511/2020) [2022] ZAECMHC 18 (26 July 2022)
[Not
reportable]
IN
THE HIGH COURT OF SOUTH AFRICA
[EASTERN
CAPE LOCAL DIVISION, MTHATHA]
CASE
NO: 2511/2020
HEARD
ON: 14/06/2022
DELIVERED
ON: 26/07/2022
ROMILA
SALOME PADAYACHEE Applicant
And
THE
MUNICIPAL MANAGER, KING SABATA
DALINDYEBO
MUNICIPALITY First
Respondent
KING
SABATA DALINDYEBO MUNICIPALITY Second
Respondent
JUDGMENT
ON THE APPLICATION FOR LEAVE TO APPEAL
NHLANGULELA
DJP
[1]
Stripped to its bare essentials, the judgment dismissing the
applicant’s application for re-instatement
to her job at KSD
was made on the following bases.
[2]
The applicant had a fixed term contract of employment with KSD that
had commenced on 11 November 2012, and
terminated on 30 June 2019. In
anticipation of the termination date, KSD made a written offer of a
permanent job that would have
commenced at the end of the fixed term
contract. However, the permanent contract could not kick-in for the
reason that the applicant
did not accept the salary package offered
under the permanent contract. She raised a counter-offer that KSD did
not accept with
the result that the offer of permanent employment
lapsed on 20 June 2019. Notwithstanding lapsing of the offer, KSD
allowed the
applicant more time, whilst on the job, to weigh-up her
options whether to accept or reject the offer. That indulgence was
accompanied
with payment of a discretionary salary at the rate that
had been applied during the term of the fixed contract; and it
endured
until 30 November 2019 when KSD terminated the indulgence.
[3]
On the foregoing, I found no room for the interpretation advanced on
behalf of the applicant that KSD terminated
a contract of employment
and,
ergo
, that the re-instatement sought was legally
competent as the permanent contract of employment never came to
fruition.
[4]
A long list of statements, replete with repetitiveness, that are
encapsulated on the notice of application
for leave translate to a
ground for leave that there is a reasonable prospect that another
court might find that annexure “E”,
the disputed
acceptance letter, is the requisite acceptance of the KSD offer. A
further ground of appeal that I could decipher
from the notice of
appeal is that the negotiations for an improved salary package
between the applicant and Dr Letuka, the head
of Human Resources for
KSD, established a contract of employment. Another ground that is
advanced is that some interactions that
took place between the
parties after 30 November 2019 established a contract of employment.
In so far as I did not look into the
case from these perspectives I
erred
, so the arguments went.
[5]
I am not persuaded that I erred in the manner in which I evaluated
the oral evidence against the test that
is stated in the case of
Stellenbosch
Farmers' Winery Ltd v Stellenvale Winery (Pty) Ltd
1957
(4) SA 234 (C)
.
[6]
In brief, a written acceptance of a salary package in terms of
annexure “D6” and delivered to
Mr Pakade would have
established a contract of employment between the applicant and KSD.
But that did not happen. The applicant
chose to sign annexure “E”
that was never delivered to Mr Pakade.
[7]
It is my judgment that this application for leave does not pass
muster in terms of the provisions of
s 17
of the
Superior Courts Act,
10 of 2013
, which have been interpreted in
Mont Chevaux Trust
(IT2012/28)
v Tina Goosen & 18 Others,
in the
following terms:
“
It is clear that
the threshold for granting leave to appeal against a judgment of a
High Court has been raised in the new Act. The
former test whether
leave to appeal should be granted was a reasonable prospect that
another court might come to a different conclusion,
see
Van
Heerden v Cronwright & Others
1985 (2) SA
342
(T) at 343H. The use of the word “would” in the new
statute indicates a measure of certainly that another court will
differ from the court whose judgment is sought to be appealed
against.”
[8]
In this case the success of the applicant’s application for
leave is founded on a hope rather than certainty
that another court
will differ from the court
a quo.
[98]
In the result the following order shall issue:
(a)
The application for leave to appeal is
dismissed.
(b)
The applicant to pay the costs of the
application.
Z
M NHLANGULELA
DEPUTY
JUDGE PRESIDENT OF THE HIGH COURT, MTHATHA
Counsel
for the applicant: Adv.
P.V. Msiwa SC
appearing with Adv. Matotie
Instructed
by: Zilwa
Att.
MTHATHA.
Counsel
for the Respondents: Adv. B. Metu
Instructed
by: Nosindwa
Att. Inc
MTHATHA.