About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2013
>>
[2013] ZAGPPHC 9
|
|
Executor of the late Madlala v Commission for Conciliation, Mediation and Arbitration and Others (47220/2009, A555/2011) [2013] ZAGPPHC 9 (23 January 2013)
NOT
REPORTABLE
IN THE NORTH
GAUTENG HIGH COURT
Appeal
Case No.: A555/2011
Case
No.:47220/2009
DATE:23/03/2013
In
the matter between:
THE
EXECUTOR OF THE LATE
NTOMBIZODWA
CONSTANCE
MADLALA
..............................................................................................................
Applicant
and
COMMISSION
FOR CONCILIATION,
MEDIATION
AND
ARBITRATION
......................................................................
1
st
Respondent
TOKISO
DISPUTE
RESOLUTION
....................................................................
2
nd
Respondent
SOUTH
AFRICAN LOCAL GOVERNMENT
BARGAINING
COUNCIL
....................................................................................
3
rd
Respondent
JUDGMENT
MNGQIBISA-THUSI
J:
[1]
This appeal was heard on 5 November 2012. After hearing argument and
considering the matter a ruling dismissing the appeal was
made. It
was indicated to counsel that reasons for the decision would be made
available later.
[2]
The appellant, in his capacity as
executor of Ntombizodwa Constance Madlala who died before this appeal
could be heard, is appealing
against the judgment of Judge Zondo
handed down on 16 May 2011 dismissing her application for the review
of first respondent’s
decision refusing her application for
accreditation as a panellist on the second respondent’s panel.
[3]
During May 2009 the second respondent
had applied to the first respondent for the accreditation of the
appellant. The first respondent
refused to accredit the appellant
which led the deceased launching the review proceedings.
[4]
The grounds upon which the appellant
relied upon for seeking the first respondent’s decision
reviewed are the following:
4.1
that the first respondent does not have
the power to accredit panellist to bargaining councils or private
agencies in terms of section
127 of the Labour Relations Act, and
therefore acted ultra vires its powers;
4.2
that the
decision refusing appellant’s accreditation was irrational and
therefore liable susceptible to be reviewed in terms
of the Promotion
of Administrative Justice Act 3 of 2000(PAJA).
[5]
The appellant has since died and the
executor of her deceased estate is pursuing this appeal.
[6]
The first respondent has raised a point
in limine, that in terms of section 21A of the Supreme Court Act 59
of 1959 ("the Act’’),
this appeal should be
dismissed on the ground that it has become moot.
[7]
Counsel for the first respondent argued
that in view of the appellant’s death, there would be no
practical benefit for the
deceased estate even if the appeal was to
succeed. Further that although the appellant in its heads of argument
had alluded to
the fact that the executor of the deceased estate
intended pursuing a potential damages claim should the appeal
succeed, there
was no affidavit filed by the executor indicating its
intention to do so. Further, it was argued that, in view of the
provisions
of
section 126
(2) of the
Labour Relations Act 66 of 1995
,
there were no prospects of success in a damages claim against the
first respondent in view of the fact that the appellant had
not
alluded to any mala fides on the part of the first respondent when it
took the decision to refuse to accredit the deceased.
[8]
Section 126(2)
of the
Labour Relations
Act provides
that the first respondent would not be held liable for
any loss suffered by any person as a result of any act performed or
omitted
in good faith in the course of exercising the functions of
the first respondent.
[9]
In response counsel for the appellant
submitted that the appeal was not moot. Relying on the recent yet
unreported SCA judgment
in Buthelezi and another v Minister of Home
Affairs
[2012] ZASCA 174
OF 29 November 2012 counsel submitted that
there was a potential claim for damages should the appeal be upheld.
It was further
argued
that
even if the appeal was moot the court could still exercise its
discretion and hear the appeal in the interest of justice or
public
interest in that the order may have practical effect on others.
However, counsel had no explanation as to how the executor
intended
quantifying its damages with regard to the potential action against
the first respondent.
[10]
Section 21A of the Act reads as follows:
“
(1)
When at the hearing of any civil appeal to the Appellate Division or
any provincial Division of the Supreme Court the issues
are of such a
nature that the judgment or order sought will have no practical
effect or result, the appeal may be dismissed on
this ground alone.
(3)
save under exceptional circumstances, the question of whether the
judgment or order would have no practical effect or result,
is to be
determined without reference to consideration of costs.”
[11]
The import of section 21A is that courts
should be concerned only with matter where there are practical
disputes. The test to be
applied is whether ‘the judgment or
order on appeal will have a practical effect or result, not whether
it might be of importance
in a hypothetical future case. Dorneil
Properties 282 CC v Renasa Insurance Co Ltd and others NNO
2011 (1)
SA 70
(SCA) at 91E-93C. Counsel for the appellant was at pains to
impress on us that there were other potential litigants who were
seeking
the same relief sought by the appellant but could not point
us to actual instances where this was contemplated.
[12]
We are of the view, as correctly pointed
out by counsel for the first respondent that the determination of
this appeal would serve
no practical purpose. The applicant in the
court a qou has passed on and the executor would have difficulties
proving with certainty
that even if the appeal succeeds, the deceased
would have proven the number of cases that would have been allocated
to her including
the commensurate fees. Secondly, there are no facts
before us laying a basis that it is the intention of the executor to
pursue
a damages claim should the appeal succeed. Nowhere in the
founding affidavit is the issue of damages canvassed. Furthermore,
even
if the executor had such an intention, he or she would not be
acting in the public interest but for the benefit of the deceased
estate.
[13]
Furthermore, even if the appeal was
heard and the appellant was successful, the deceased estate would not
be able to sue the first
respondent for damages, as pointed out by
counsel for the first respondent, the appellant has not alluded to
any facts which might
indicate that when the first respondent took
the decision to refuse accreditation to the deceased, it was
motivated by mala fides.
[14]
In the premises we are of the view that
the point in limine should be upheld and the appeal dismissed.
[15]
Accordingly the following order is made:
1.
The appeal is dismissed.
2.
There is no order as to costs.
N.
P MNGQIBISA-THUSI
Judge
of the North Gauteng High Court
I
agree
S
POTTERILL,
Judge-of-the-North
Gauteng High Court
I
agree
W.
HUGHES
Judge
of the North Gauteng High Court