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[2016] ZAGPPHC 649
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Pretorius and Another v Transport Pension Fund and Others (42355/2015) [2016] ZAGPPHC 649 (5 August 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(
GAUTENG
DIVISION. PRETORIA
)
Case
no. 42355\2015
5/8/2016
Not
reportable
Not
of interest to other judges
Revised.
IN
THE MATTER BETWEEN:
JOHAN
PIETER HENDRIK
PRETORIUS 1
st
Plaintiff
MONTANA
DAVID KWAPA
2
nd
Plaintiff
and
TRANSPORT
PENSION
FUND 1
st
Defendant
TRANSNET
SECOND DEFINED BENEFIT
FUND 2
nd
Defendant
TRANSNET
LIMITED 3
rd
Defendant
JUDGMENT
ON LEAVE TO APPEAL
LEGODI
J;
HEARD
ON: 21 June 2016
JUDGMENT
HANDED DOWN ON: 4 August 2016
[1]
The parties herein will be referred to as in the main Judgment.
Judgment in this application for leave to appeal was reserved
on 21
June 2016. It is an appeal against the orders in paragraphs 54.1.1,
54.1.2, 54.1.3 and 54.5 of the judgment handed down on
18 May 2015
against the first plaintiff (Johan Pieter Pretorius) and the second
plaintiff (Mr Montana David Kwapa).
[2]
The orders appealed against read as follows:
"54.1.1 The
exception to what is referred to in this judgment as "failure to
identify the terms of the promise,”
and dealt with from
paragraph
22
above, is
hereby upheld.
5.4.1.2 The exception
to what is referred to as "unlawful state conduct" by the
plaintiffs in their amended particulars
of claim, and dealt with from
paragraph [28] of this judgment is hereby upheld.
54.1.3. The exception
to what is referred to as "unlawful labour practice" by the
plaintiffs in their amended particulars
of claim, is hereby upheld in
part for reasons mentioned from paragraph 47 of this judgement.
54.5 Each party to pay
his or her own costs."
[3]
As it would appear from the orders quoted above, this was an
application for leave to appeal against an order upholding the
defendants' exception noted against the plaintiffs' particulars of
claim.
[4]
It is not my intention to deal with the present application as if one
is rewriting the main judgment. In the main judgment,
I dealt with
the terms of 'the state promise' and found that the terms as pleaded
lack sufficient particularities and that they
are vague and
embarrassing. Reasons for the conclusion are stated in the main
judgment and in my view there are no reasonable prospects
of success
on appeal. I also do not think that the order made in this regard is
appealable.
[5]
The other challenge to this court's finding in the main judgment was
the findings on the 'unlawful state conduct'
vis-a vis
'administrative action'. This court is said to have erred in
paragraphs 32 to 42 of the main judgment. It is not my intention to
restate what was said therein. It suffices to mention that I am not
satisfied that there are reasonable prospect of success on
appeal.
[6]
More time was spent in arguing the grounds of appeal with regard to
"unlawful state conduct". When this judgment was
reserved,
I had initially thought that there was a need to deal with the
grounds of appeal in some detail. In hindsight,
I do not think
is necessary to do so. In the main judgment I dealt with several case
law authorities relied upon for the contention
on behalf of the
plaintiffs. I am not persuaded that there are prospects of success on
appeal.
[7]
A swipe was also taken against the findings by this court regarding
'unfair labour practice' in particular paragraphs 47 to
57 of the
main judgment. I am satisfied that there are no merits to the grounds
of appeal. The plaintiffs can do better by clarifying
what they now
say is pleaded in paragraphs14 to 17 of the amended particulars of
claim. Similarly, I am not satisfied that there
are prospects of
success on appeal with regard to the 'unfair labour practice'.
[8]
Regarding the grounds of appeal against a cost order, the contention
was that the entire exception by the defendants should
have been
dismissed. As I said, there are no prospects of success on appeal and
the appeal in this regard is destined to fail.
[9]
Before I conclude, it is important to mention that the first and
second defendants filed conditional application for leave to
appeal.
I do not intend to deal with the merits or otherwise of such
conditional application. My finding with regards to the plaintiffs'
application for leave to appeal makes it unnecessary to deal with the
conditional application for leave to appeal so filed.
[10]
Consequently an application by the plaintiffs for leave to appeal is
hereby dismissed with costs, such costs to include costs
of two
counsel for the first and second defendants.
_________________________
M
F LEGODI
JUDGE
OF THE HIGH COURT
For
the 1st& 2nd Plaintiffs:
Adv Wim Trengove SC
Adv
Jaap Cilliers SC
Adv
J Bleazard
Instructed
by:
GEYSER & COETZEE ATTORNEYS
For
the 1
st
and 2
nd
Defendants
Adv M Chaskalson SC
Adv
A Cockrell SC
Adv
I Goodman
Adv
N Luthuli
Instructed
by:
Attorneys Edward Nathan Sonneberg Inc
For
the 3
rd
Defendant:
Adv CDA LOXTON SC
Adv
MA Chohan SC
Adv
B MAKOLA
ADV
A PANTAZIS
Instructed
by Attorneys:
BOWMAN GILFILLAN INC