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[2018] ZAGPPHC 729
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Feni v Pan African Language Board and Another (25170/2016) [2018] ZAGPPHC 729 (17 January 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
(1)
NOT REPORTABLE
(2)
NOT OF INTEREST TO
OTHER JUDGES
(3)
REVISED.
CASE
NO: 25170/2016
DATE:
17/1/2018
IN
THE MATTER BETWEEN
:
ZIXOLISILE
FENI
Applicant
and
THE
PAN SOUTH
AFRICAN
First Respondent
LANGUAGE
BOARD
MPHO
REGINALD
MONARENG
Second Respondent
JUDGMENT
KOLLAPEN
J:
1.
The
application for leave to appeal in this matter was argued
simultaneously with the application for leave to appeal in the matter
of
Joyce Sukumane v Mpho Reginald
Monareng
&
Another
(High Court case no.
12023/2016).
The basis of the
argument and the submissions made were identical in both applications
for leave to appeal, and to that extent the
judgments will accord
with those arguments and submissions.
2.
This
is an application for leave to appeal against the judgment of this
Court of the 27
th
of June 2017. The grounds on which the application for leave to
appeal is based are comprehensively set out in the Application
for
leave to Appeal.
3.
Those
grounds include
inter alia
that:
a)
The
Court erred in granting condonation in respect of the late filing of
the Respondents' answering affidavit;
b)
The
Court erred in finding that the applicant had failed to prove that
she was excluded from consideration for the post of CEO on
account of
her age;
c)
The
Court erred in not finding that the first Respondent did not meet the
inherent requirements of the post concerned;
d)
The
Court erred in not determining whether the failure to subject the
first Respondent to a competency assessment was lawful and
valid; and
e)
The
Court erred in concluding that the circumstances under which the
contract of employment of the first respondent was signed,
were
lawful.
4.
Section 17(1) of the Superior Courts Act
(10 of 2013) provides 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.
(b)
The decision sought on appeal does not
fall within the ambit of section 16(2)(a); and
(c)
Where the decision sought to be appealed
does not dispose of all the issues in the case, the appeal would lead
to a just and prompt
resolution of the real issues between the
parties.
5.
In
The Mont Chevaux Trust (IT
2012/28) v Tina Goosen and 18 Others
LCC14R/2014
(an unreported judgment of this Court delivered on 3 November 2014),
it was held that s 17(1) has raised the bar and
that there must now
be a measure of certainty that another Court would come to a
different conclusion. This approach has been held
to be correct in
this division in
Acting National
Director of Public Prosecutions and Others v Democratic Alliance, In
Re: Democratic Alliance v Acting Natonal Director
of Public
Prosecutions and Others
(19577/09)
[2016] ZAGPPHC 489 (24 June 2016), a judgment by Ledwaba DJP,
Pretorius J and Mothle J (concurring in para 25).
6.
In
its judgment of the 27
th
of June 2017 this Court made the following findings and conclusions
all of which have a bearing on the very question of whether
it can be
said that there is a measure of some certainty that another Court
will come to a different conclusion:
a)
"[A]ll that the applicant states
is that she was reliably informed that she was excluded on account of
her age. No further
details are given nor does she indicate why she
is not able to say who informed her of her exclusion and why such
person is unable
to depose to an affidavit.
"
(in paragraph 6)
It
is inconceivable that the applicant can hope to seek and obtain legal
relief on such a bald and unsupported allegation.
b)
On
the evidence it was clear that the second respondent met the
requirements of the job and the conclusion in this regard by the
Interview Panel was unassailable.
c)
That
there was no requirement in law for the first respondent to undergo a
competency assessment, this being a matter of discretion
of the
second respondent.
d)
That
whatever the position of Professor Madiba may have been, he was
authorised by the Board of the first respondent to handle matters
relating to the contract between the first respondent and the second
respondent.
7.
In
my view it can hardly be said that the application for leave to
appeal bears any prospects of success.
Order
8.
In
the circumstances I make the following order:
The
application for leave to appeal is dismissed with costs including the
costs of two counsel.
HEARD
ON: 3 October 2017
APPEARANCES:
FOR
THE APPLICANT: Adv. Z Feni
INSTRUCTED
BY: Makhafola & Verster Incorporated (ref.: S
Makhafola/ZF/SMO1631
FOR
THE RESPONDENTS: Adv. K PILLAY SC (appearing with Adv. A DIPA)
INSTRUCTED
BY: Bowman Gilfillan Inc. (ref.: C Mkiva/6158833)