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2024
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[2024] ZALCJHB 141
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Luphondo v Pieterse N.O and Another (J102/24) [2024] ZALCJHB 141 (10 April 2024)
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
Not Reportable
case
no:
J102/24
In
the matter between:
MATRIC
LUPHONDO
Applicant
and
rg
pieterse
NO
First Respondent
NATIONAL
PROSECUTING AUTHORITY
Second Respondent
Heard
:
Considered in Chambers
Delivered
:
This judgment was handed down electronically by emailing a
copy to the parties. 10 April 2024 is deemed to be the date of
delivery
of this judgment).
Summary
:
Order issued on 9 February 2024 and reasons followed on 19 February.
Application for leave to appeal lodged. Application for leave to
appeal refused with costs.
JUDGMENT: APPLICATION
FOR LEAVE TO APPEAL
DANIELS
J
Introduction
[1]
On 9 February 2024, I heard this application as one of urgency. Later
that same day, I handed down an order, dismissing the application. In
the absence of reasons for the order, an application for leave
to
appeal was filed on 12 February. Reasons for the order was issued on
19 February 2024. On 4 March 2024, the applicant filed
an affidavit
setting out its grounds for leave to appeal. The third respondent
filed opposing submissions on 15 March 2024. The
applicant filed a
replying affidavit on 5 April 2024. These processes do not strictly
accord with the Rules of this Court or the
Practice Manual.
Nevertheless, taking the approach of substance over form, I will
consider and determine the matter.
[2]
Having read the papers filed by the applicant, I note that the
grounds
for leave to appeal, apart from spewing forth broad legal
contentions leaves little of substance to engage with. The
application
for leave to appeal is largely a repetition of the
erroneous submissions made in the application itself.
The Main Application
[3]
The urgent application rested principally on three grounds:
3.1
The arbitration hearing, conducted in terms of
section 188A
of the
Labour Relations Act No. 66 of 1995
as amended (the “LRA”)
would proceed on 12, 13 and 14 of February 2024 in the absence of the
applicant’s legal
representatives, thus demonstrating the
second respondent’s bias. The interdict was refused on 9
February. It is unclear
what occurred on 12, 13 and 14 February, but
those dates have since passed. The issue of representation at the
arbitration can
therefore no longer be in issue.
3.2
The third respondent cannot lawfully and fairly discipline the
applicant, because of his position
as an acting director of the NPA,
in the absence of Ministerial authorisation. This court found that
the applicant is not in the
same position as other senior public
servants in the NPA, and Ministerial authorisation is not required
for disciplinary action
to fairly proceed. The applicant contends
this finding is wrong but sets out no basis for this.
3.3
The applicant’s rights under the SMS Handbook, and the
Bargaining Council Rules are being
violated and the arbitration
cannot fairly proceed. The court found that these contentions had no
merit. The applicant has been
provided with the charges, documents,
and the broad nature of the evidence against him. The applicant’s
desire for a pre-arbitration
minute lies within the discretion of the
arbitrator. These allegations create no exceptional circumstances
justifying this court’s
intervention in incomplete disciplinary
proceedings.
Test for leave to
appeal.
[4]
In
J
& L Lining (Pty) Ltd v National Union of Metalworkers of SA and
Others (2)
[1]
this Court summarized the legal position when seeking leave to appeal
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
.’’ (Own emphasis)
[5]
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
Courts 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
.’
Grounds for the
application for leave to appeal.
[6]
Below I attempt to distil and deal with the grounds for the
application
for leave to appeal which, as previously explained, are
not the model of clarity.
6.1
The applicant contends that this court usurped the powers of the
court of review by embroiling itself in the merits on review
.
6.1.1
It was necessary for this court to assess whether there is a
reasonable prospect of success
in the main application – the
review application. Accordingly, the court was required to peek into
the merits.
6.1.2
To assess the merits, it was necessary, at least on a provisional
basis, to interpret
the NPA Act and consider whether acting directors
may only be disciplined by the Minister, as the applicant alleged.
This court
considered the legislation and rendered its views.
However, those views do not prevent the review court from finally
determining
the issue.
6.1.3
This court specifically pointed out, in para 27 of the reasons for
the order, that the
applicant’s rights are not finally
determined. In the circumstances, there can be no question that this
court has usurped
the powers of the court of review.
6.1.4
In any
event, I note that the applicant fails to understand the proper
context of
Masethla
v President of
the
Republic
of South Africa and Another.
[3]
There, the Constitutional Court held that the President had an
implied power to dismiss the head of the NPA. The power was an
executive one, capable of review only on the grounds of legality and
rationality. Importantly, the court held that the power to
dismiss
the head of Intelligence Services Agency need not only be sought in
national legislation but may also be sourced from the
Public Servants
Act
[4]
(the “PSA”).
In
this matter, as the third respondent points out, section 16B(4) of
the PSA gives this power to the head of department –
the
National Director. In relation to
acting
directors
of the NPA, the power to institute disciplinary action lies in the
hands of the head of department (the National Director).
6.2
The applicant contends that this court incorrectly found that the
complaint of bias against the third respondent was unsubstantiated.
6.2.1
The applicant presented no evidence establishing any reasonable
foundation for the allegation
of bias.
6.2.2
The applicant relied on the fact that the third respondent ruled
against him on the numerous
technical points he raised. This did
establish a reasonable foundation for bias.
6.3
The
applicant contends that this court failed to appreciate the “multiple
fundamental matters of law and fact” that
were clarified by the
Labour Appeal Court in
Booysen
v Minister of Safety
.
[5]
6.3.1
It is unclear what the applicant is referring to.
6.3.2
This submission is frivolous and takes the application no further.
6.4
The applicant contends that this court incorrectly referred to the
applicant as a “senior public servant”.
6.4.1
The applicant sets out no basis as to why he is not a public servant.
The applicant does
not explain why this is relevant.
6.4.2
The applicant’s submission contradicts the express wording in
the NPA Act.
6.4.3
In any event, more importantly, the summary is not part of the
judgment. This contention
too is frivolous.
6.5
The
applicant submits that this court wrongly refused to follow the
authority of
Tshavhunga
v National Director of Public Prosecutions and Others
[6]
where the High Court held that only the Minister can take a decision
to terminate the services of a
deputy
director
of the NPA.
6.5.1
First, the
submission fails to take into consideration that the deputy director
position is a permanent post, while that of an acting
director is
not.
6.5.2
Secondly, the
applicant does not explain why another court would likely find that
the reasoning in paras 29 – 37 of the judgment
is flawed.
Costs
[7]
The
application for leave to appeal is fundamentally flawed, and
frivolous. In fairness, and law, it is appropriate to order costs.
Order
[8]
In the result, there is no sound rational basis to
conclude that an appeal would have a reasonable prospect of success.
The application
for leave to appeal is therefore dismissed, with
costs.
R Daniels
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]
2008
(1) SA 566 (CC)
[4]
Proclamation
103 of 1994, as amended.
[5]
[2011]
1 BLLR 83 (LAC)
[6]
(TPD
42117/06 dated 19 March 2008)