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2024
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[2024] ZALCJHB 84
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Leshabane v Minister of Human Settlements and Others (J 1615-21) [2024] ZALCJHB 84 (16 February 2024)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
case
no: J 1615 / 21
In
the matter between:
LESHABANE, JOSEPH
MALEKUTU
Applicant
and
MINISTER OF HUMAN
SETTLEMENTS
First Respondent
DIRECTOR GENERAL OF
THE DEPARTMENT
OF HUMAN
SETTLEMENTS
Second Respondent
DEPARTMENT OF HUMAN
SETTLEMENTS
Third Respondent
Decided:
In Chambers
Delivered:
16 February 2024
T
his
judgment was handed down electronically by circulation to the parties
and legal representatives by email. The date and time
for hand-down
is deemed to be 16 February 2024
Summary:
Leave to appeal – no proper grounds made out –
application for leave to appeal dismissed
JUDGMENT
– LEAVE TO APPEAL
SNYMAN,
AJ
Introduction
[1]
In this instance, the applicant in the main application brought an
application starting out as an urgent application,
which was struck
from the roll for want of urgency, and then proceeding in the
ordinary course which is how the application came
before me. In the
application before me, the only remaining relief sought by the
applicant was an order that the applicant’s
fixed term contract
with the third respondent be declared to be valid and binding between
the parties until 31 December 2024. The
applicant contended that the
termination of that contract by the third respondent was unlawful,
unreasonable, irrational, unjustifiable
and unfair. The application
was opposed by the respondents.
[2]
The application came before me on 30 August 2023 for argument. After
hearing argument by all parties, I reserved judgment.
Written
judgment in the application was then handed down on 1 December 2023,
in terms of which the applicant’s application
was dismissed
with costs.
[3]
Dissatisfied with the judgment, the applicant, on 20 December 2023,
filed an application for leave to appeal. The application
for leave
to appeal also incorporated written submissions as contemplated by
Rule 30(3A) of the Labour Court Rules and clause 15.2
of the Practice
Manual. The respondents did not engage in the application for leave
to appeal. The time limit in terms of the Practice
Manual for filing
submissions has now passed, and the application is ripe for
determination.
[4]
Clause 15.2 of the Practice Manual further provides that an
application for leave to appeal will be determined by a Judge
in
chambers, unless the Judge directs otherwise. I see no reason to
direct otherwise and will therefore determine the applicant’s
leave to appeal application in chambers.
Analysis
[5]
In
J
& L Lining (Pty) Ltd v National Union of Metalworkers of SA and
Others (2)
[1]
the Court summarized the legal position that applies when a litigant
seeks leave to appeal from this Court as follows:
‘
Leave
to appeal is not there for the asking. When deciding whether to grant
leave to appeal to the Labour Appeal Court, the Labour
Court must
determine whether there is a reasonable prospect that another court
would come to a different conclusion to that of
the court a quo, or
in other words, whether the appeal would have a reasonable prospect
of success. This was summarised in
SA
Clothing & Textile Workers Union & others v Stephead Military
Headwear CC
, as follows:
‘
It
is trite that for an application for leave to appeal to be
successful, it is required of the party seeking such leave to
demonstrate
that there are reasonable prospects that another court,
in this instance, the Labour Appeal Court, would come to a different
conclusion
to that reached in the judgment that is sought to be taken
on appeal.’’
[6]
As to the
meaning of ‘
reasonable
prospects of success’
,
the Court in
Member
of the
Executive
Council for Health, Eastern Cape v Mkhitha and Another
[2]
said the following:
‘
Once
again it is necessary to say that leave to appeal, especially to this
Court, must not be granted unless there truly is a reasonable
prospect of success. Section
17(1)(a) of the Superior Cou
rts
Act 10 of 2013 makes it clear that leave to appeal may only be given
where the judge concerned is of the opinion that the appeal
would
have a reasonable prospect of
success; or there is some other compelling reason why it should be
heard.
An
applicant for leave to appeal must convince the court on proper
grounds that there is a reasonable prospect or realistic chance
of
success on appeal. A mere possibility of success, an arguable case or
one that is not hopeless, is not enough. There must be
a sound,
rational basis to conclude that there is a reasonable prospect of
success on appeal.’
[7]
Firstly, the applicant contends that I erred in deciding that the
applicant’s case was not founded on a breach of
contract. I
deal with this issue in full in my original judgment. There can be
little doubt that the applicant never advanced a
case based on breach
of contract, but squarely founded his case on either an unfair or
unlawful termination of employment. The
applicant’s founding
affidavit speaks for itself, and I am not going to repeat what I have
already set out in full in my
judgment. There is simply no prospects
of success at all in this ground for seeking leave to appeal.
[8]
The applicant also contends that I erred in finding that the Court
had no jurisdiction to entertain the application. The
problem with
this contention is that the applicant simply does not understand the
jurisdictional issues, which arise specifically
based on the case he
has pleaded. It is trite that jurisdiction is determined on the case
as pleaded. Considering the one part
of the pleaded case, this Court
does not have the jurisdiction to decide a case of unlawful
dismissal. The case law in this regard
is well settled. And secondly,
where the applicant seeks to rely on an unfair dismissal, this Court
would equally have no jurisdiction
if that dispute was not first
referred to the CCMA and conciliated, and thereafter, depending on
the nature of the dispute, referred
to arbitration or adjudication. A
direct approach to this Court is simply not competent. Again, the
case law in this regard is
settled and clear. As this was the other
basis of his pleaded case, this Court had no jurisdiction to come to
his assistance. The
applicant accordingly has no prospects of success
on appeal where it comes to this ground for seeking leave to appeal.
[9]
According to the applicant, I erred in finding that the 2021 contract
did not extend the 2016 contract. I do not understand
how this
contention can be made by the applicant. The applicant relies on a
letter of 15 February 2021 in support of his contention
in this
regard. But what the applicant completely fails to appreciate is that
this letter was superseded by a
de novo
contract of employment
that replaced,
in toto
, the 2016 agreement, which contract the
applicant signed on 10 June 2021. There is accordingly no substance
at all in this ground
for seeking leave to appeal.
[10]
When the matter was originally argued before me, the applicant
squarely relied directly on section 23 of the Constitution
in support
of his claim. As I found in my original judgment, this approach was
not competent because of the principle of subsidiarity.
In seeking
leave to appeal, the applicant now argues that his direct reliance on
the Constitution was ‘in addition’
to relying on section
158(1) of the LRA, and hence permissible. The proposition is
ludicrous. The fact is that under subsidiarity,
the applicant cannot
rely on the Constitution at all. He can only rely on the LRA. There
is no prospect at all that another Court
would conclude otherwise.
[11]
The applicant continues, in his application for leave to appeal, to
assert a case based on breach of contract under section
77(3) of the
BCEA, despite never having pleaded the same. I am compelled to
reiterate that there was no such case made out in the
pleadings, by
the applicant. This case was raised for the first time in the
applicant’s heads of argument when the matter
came before me.
It is trite that such an approach is simply not permissible. One
simply is not allowed to raise a case for the
first time in heads of
argument. The applicant has no prospects of success on appeal in this
regard.
[12]
In the end, and what the applicant stubbornly refuses to appreciate,
despite the plethora of authorities including several
Constitutional
Court authorities (referred to in my original judgment) that
pertinently say so, is that if one wants to rely on
the LRA to
substantiate a case and obtain a remedy, then one is compelled to
follow the processes prescribed by the LRA. The applicant
did not
follow those processes, bypassed the same, and came directly to this
Court. That is just not competent. These principles
are so well
settled that any contention by the applicant to the contrary is
hopeless, and no other Court would decide otherwise.
[13]
In the end, I am unpersuaded that any of my findings in this case was
erroneous to the extent that it would justify interference
with on
appeal. Overall considered, I believe that the applicant in effect
simply disagrees with the findings I had made, however
such a
disagreement does not make out a case for leave to appeal. Where it
comes to these findings, I simply do not believe that
there exists a
reasonable prospect that another Court would find otherwise, and the
applicant has no prospects of success on appeal
in this regard.
[14]
Accordingly,
the applicant has thus failed to show that there exists a reasonable
prospect that another Court would come to a different
conclusion, and
that the applicant has little prospect of success on appeal. The
application for leave to appeal falls to be dismissed.
I believe the
following
dictum
from the judgment in
Martin
& East (Pty) Ltd v National Union of Mineworkers and Others
[3]
to be appropriate in deciding to refuse leave to appeal, especially
considering the delay that has already taken place in this
case:
‘…
The Labour Relations Act
was designed to ensure an expeditious resolution of industrial
disputes. This means that courts, particularly
courts in the position
of the court a quo, need to be cautious when leave to appeal is
granted. …’
[15]
This only leaves the issue of costs. For the reasons I have set out
in my original judgment, I would have been inclined
to make a costs
award against the applicant. But since the respondents have no
engaged in the application for leave to appeal,
I shall treat the
application as unopposed and make no costs order.
[16]
In the premises the following order is made:
Order
1. The applicant’s
application for leave to appeal is dismissed.
2. There is no
order as to costs.
S. Snyman
Acting Judge of the
Labour Court of South Africa
[1]
(2019)
40 ILJ 1303 (LC) at para 5.
[2]
[2016]
JOL 36940
(SCA) at paras 16 – 17.
[3]
(2014)
35
ILJ
2399 (LAC)
at
2405J-2406A