Bester v Sol Plaatjie Municipality and Others (1038/03) [2004] ZANCHC 56; [2004] 7 BLLR 728 (NC) (2 April 2004)

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[2004] ZANCHC 56
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Bester v Sol Plaatjie Municipality and Others (1038/03) [2004] ZANCHC 56; [2004] 7 BLLR 728 (NC) (2 April 2004)

Reportable: Yes /
No
Circulate to
Judges: Yes / No
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to Magistrates: Yes / No
IN
THE HIGH COURT OF SOUTH AFRICA
(Northern
Cape Division)
Case no: 1038/03
Date heard: 2004-03-23
Date
delivered: 2004-04-02
In
the matter of
:
MARIUS
CHRISTIAAN BESTER APPLICANT
versus
SOL
PLAATJE MUNICIPALITY FIRST RESPONDENT
P
R O SEHUNELO N.O. SECOND RESPONDENT
C
M MAGABANE N.O. THIRD RESPONDENT
Coram:
KGOMO JP
et
MAJIEDT J
JUDGMENT
ON APPLICATION FOR LEAVE TO APPEAL
MAJIEDT
J:
This
is an application for leave to appeal to the Supreme Court of Appeal
(“
the SCA
”)
against the whole of our judgment and orders, (excluding the
question of the jurisdiction of the High Court) dismissing the
Applicant’s application for declaratory orders, the setting aside
of certain resolutions of the council of the First Respondent,
an
interdict restraining the Respondents from proceeding with an appeal
hearing of the Applicant before the Third Respondent and
costs
orders.
On
behalf of the Applicant Mr Strydom has filed full heads of argument
in support of the application before us and has further elaborated
thereon during oral argument. He has advanced numerous submissions
in support of the application, which I deem not necessary to
deal
with in this judgment, given the conclusion which has been reached
herein.
At
this juncture, the test is simply whether a reasonable prospect
exists that another Court, namely the SCA, will reach a different
finding on the issues which we have decided against the Applicant.
I
am of the view that the following grounds of appeal advanced by the
Applicant bear reasonable prospects of success on appeal to
the SCA:
a) The
contention that there is no inconsistency between the provisions of
the Municipal Systems Act, 32 of 2000, and the collective
agreement
which forms the basis of the dispute between the parties herein,
which inconsistency would set in motion the operation
of section 52
of the aforementioned Act in terms whereof the labour legislation
prevails in the event of such an inconsistency.
It is without a
doubt so that the judgment appealed against was to a large extent
premised on such inconsistency in fact existing
which would lead to
the application of the provisions of section 52 of the aforementioned
Act.
b) I
am also of the view that the Applicant has reasonable prospects of
success, concerning the finding that the First Respondent’s
council
has implied authority to delegate its power to hear the appeal. This
particular finding is again crucial to the eventual
outcome of the
matter and it seems to me that the Applicant should be granted the
opportunity to test our findings in another court.
Mr
Strydom has referred us to the as yet unreported judgment of the SCA
in
Denel (Pty) Limited
v Vorster
, case no.
13/2003, delivered on 5 March 2004. That matter concerned the
question whether an employer (the Appellant) had breached
an
employment contract which incorporated a disciplinary code. We have
in particular been referred to pages 8 and 9 of the judgment
of
Nugent JA. It seems to me that the present case is
distinguishable not only on the facts, but in particular on the law,
from the Denel-case,
supra
.
In the matter before us a central issue is the question of
conflicting provisions between labour legislation (in the form of a
collective agreement) and provisions in another statute. In any
event, even if I am wrong in the assessment that the Denel-case
does
not assist the Applicant, it seems to me that the Applicant has
advanced sufficient grounds on which leave to appeal should
be
granted as will be presently shown.
c) I
am also persuaded that there appears to be merit in the contention
that this Court may have erred in its finding that the council
has
the right of delegation of the power to hear the appeal and in this
Court then not having addressed the issue that the subject
matter of
such delegation by the First Respondent to the Second Respondent in
fact had consisted of the power to designate another
person to hear
the appeal. If the Applicant’s contentions in this regard are
upheld on appeal, the effect may well be that the
Third Respondent
had no authority to hear the appeal through delegated power, since he
is neither an official nor a staff member
of the First Respondent.
d) The
Applicant’s submissions on the finding that it is premature to
consider the question of the alleged abdication of power by
the First
Respondent’s council, can in my view also not be said to be devoid
of merit. If the SCA finds that the impugned resolution
itself is of
sufficient finality so as to require adjudication on whether it
amounts to an unlawful abdication of power or not, then
concomitantly
the Applicant would have reasonable prospects of success on appeal on
this point. I say this because it is indicated
in the judgment that
there is considerable merit in Applicant’s submissions on this
aspect. The alternative argument that prejudice
has in fact already
ensued even if the resolution cannot be said to be of a final nature,
also seems to me to have reasonable prospects
of success on appeal.
e) Although
I am convinced of the correctness of the rejection of the Applicant’s
averments that he was unaware of the existence
and meaning of clause
7.2.8.5, there is much to be said for the contention that the
Applicant cannot in law acquiesce to such unlawfulness
and that this
Court cannot give legality to an unlawful act by enforcing it.
f) Finally,
there may be reasonable prospects of success on appeal with regard to
the fact that the need to refer the matter of waiver
and the disputes
of facts thereon for oral evidence was not addressed in the judgment.
In
all the circumstances there appears to be reasonable prospects of
success on appeal and that another Court might come to a different
conclusion than the one that we have arrived at. Consequently the
application for leave to appeal is granted.
____________
SA
MAJIEDT
JUDGE
I
concur. The Applicant is granted leave to appeal to the Supreme
Court of Appeal against the whole of the judgment and the orders
issued therein excluding the question of the jurisdiction of the High
Court. Costs of this application for leave to appeal will
be costs
in the appeal.
___________
FD
KGOMO
JUDGE-PRESIDENT
ADVOCATE FOR THE APPLICANT : ADV FP
STRYDOM
ADVOCATE
FOR THE RESPONDENTS : ADV CH BOTHA
ATTORNEY FOR THE
APPLICANT : ENGELSMAN, BENADE & VAN DE WALT
ATTORNEY
FOR THE RESPONDENTS : MJILA & PARTNERS
DATE
OF HEARING : 2004-03-23
DATE OF JUDGMENT :