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2024
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[2024] ZALCJHB 188
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Mohlabane v Sandvik Mining Construction (Pty) Ltd (JS507/23) [2024] ZALCJHB 188 (9 May 2024)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
no:
JS 507/23
In
the matter between:
Mohlabane,
Brian
Applicant
and
Sandvik
Mining Construction (Pty) Ltd
Respondent
Handed
down in chambers on 9 May 2024
JUDGMENT
IN APPLICATION FOR LEAVE TO APPEAL
NORTON
AJ
Introduction
1.
On 22 March 2024 I made the following orders:
1.1. The
Respondent’s exception is upheld.
1.2. The
Applicant’s statement of case is dismissed.
1.3. There is no
order as to costs.
2.
The Applicant made an application for leave to appeal on 25 March
2024, and filed submissions on 19 April 2024.
3.
The Respondent filed it’s submissions opposing the application
for leave to appeal on 17 April 2024.
Applicant’s
grounds and the Respondent’s response
4.
With due respect the submissions made by the Applicant in the
application for leave to appeal are largely incomprehensible.
I have
attempted to discern three grounds which I have summarised below.
5.
Ground 1:
The Applicant submits that the exception was premature, and that the
Respondent should have considered the submissions
made in the Pre
trial minute and the Heads of Argument.
[1]
5.1. The Respondent
denies that the documents submitted should have been considered by
the court when adjudicating the exception
application.
5.2. The Respondent
called on the Applicant to remove the cause of complaint with respect
to his pleadings and he did not
do so.
5.3. There was no
pre trial meeting so the minutes submitted carry no weight.
5.4. The Applicant
delivered Heads of Argument before the trial. This was irregular.
6.
Ground 2:
The Applicant submits that the Court erred by ignoring evidence which
included “
material
facts in transcripts placed before it, flowing from a forum purported
to have heard the same facts
…”
[2]
6.1. The Respondent
submits that the court was not required to consider other evidence.
7.
Ground 3:
The Applicant submits that the Court erred by finding that the
Applicant’s pleadings did not disclose a cause of
action.
[3]
7.1. The Respondent
submits that the court simply needed to consider the statement of
case. The statement of case lacked the
necessary averments to sustain
the Applicant’s cause of action.
Legal
considerations: the standard in applications for leave to appeal, and
the nature of exceptions
8.
When considering the standard in applications for leave to appeal,
section 17(1) of the Superior Courts Act 2013 (the “Act”)
applies. That section reads,
“
Leave
to appeal may only be given where the judge or judges concerned are
of the opinion that (a)(i) the appeal would have a reasonable
prospect of success; or (a)(ii) there is some other compelling reason
why the appeal should be heard, including conflicting judgments
on
the matter under consideration
.”
9.
The threshold to cross for an audience with an appeal court is a high
one, requiring a strong prospect that another court
would come to a
different decision, or that there are compelling reasons justifying
the attention of that court.
10.
In
Seathlolo
& others v Chemical Energy Paper Printing Wood & Allied
Workers Union & others
[4]
Judge Van Niekerk, discussing the test to be applied states,
“
The
traditional formulation of the test that is applicable …requires
the court to determine whether there is a reasonable
prospect that
another court may come to a different conclusion to that reached in
the judgment that is sought to be taken on appeal.
…the use of
the word “would” in s 17(1)(a)(i) is indicative of a
raising of the threshold since previously,
all that was required for
the applicant to demonstrate was that there was a reasonable prospect
that another court might come to
a different conclusion…Further
this is not a test to be applied lightly – the Labour Appeal
Court has recently had
occasion to observe that this court ought to
be cautious when leave to appeal is granted…The statutory
imperative of the
expeditious resolution of labour disputes
necessarily requires that appeals be limited to those matters in
which that there is
a reasonable prospect that the factual matrix
could receive a different treatment or where there is some legitimate
dispute on
the law
…”
[5]
11.
The late
Honourable Judge Steenkamp in the case
Volschenk
v Pragma Africa (Pty) Ltd
[6]
with respect to exceptions made the following points:
11.1. The rules of
the Labour Court do not specifically deal with the issue, but may be
raised under Rule 11;
11.2. Rule 23 of
the Uniform Rules of the High Court have application;
11.3. That an
exception is a legal objection intended to address a defect inherent
in the other party’s pleadings;
11.4. There are two
generally recognised categories of exception, namely where the
pleading is vague and embarrassing; and
where pleadings lack
averments necessary to sustain a cause of action; and
11.5.
A litigant
may take an exception to have the action or defence dismissed before
the merits of the matter are considered in evidence.
[7]
12.
The
Constitutional Court in
Pretorius
& another v Transport Pension Fund & others
[8]
made the following points about exceptions:
12.1. In deciding
an exception a court may accept all allegations of fact made in the
particulars of claim as true, and may
not have regard to any other
extraneous facts or documents;
12.2. A court may
uphold an exception only when the excipient has satisfied the court
that the cause of action or conclusion
of law in the pleading cannot
be supported on every interpretation of the facts; and
12.3.
It is a
useful procedure to weed out bad claims at an early stage, but an
overly technical approach must be avoided.
[9]
Analysis
13.
The Applicant in his Statement of Claim dated 29 August 2023 sets out
the following facts to establish his claim:
13.1. His pay was
below the paygrade of some whites and had been subject to unfair
discrimination.
13.2. The employer
withheld his bonus which was unfair and discriminatory.
13.3. He was
dismissed and that amounted to an automatically unfair dismissal.
14.
The Respondent gave notice on 7 September 2023 that it intended to
raise an exception on the basis that the statement
of case was vague
and embarrassing and / or lacks the averments necessary to sustain a
cause of action.
15.
The Respondents explained that the Applicant had:
15.1. failed to
identify the white counterparts who earned more than he did
15.2. failed to
specify the ground on which he alleges he suffered discrimination
15.3. already
referred an unfair dismissal claim to the CCMA and it had been
dismissed and was now the subject of review under
JR 1483/23; and
that the Applicant could not now rely on the same set of facts to
allege an automatically unfair dismissal;
15.4. failed to
identify the differential treatment with respect to the issue of the
bonus.
15.5. referred an
ULP dispute to the CCMA under case number GAJB 7413-23 which had been
dismissed, and was part of the review
under JR 1483/23.
16.
The Applicant was called on within 15 days to remove the cause of
compliant and never did.
17.
The Applicant fails to set out which whites earn more than he does,
and the comparison between what he does and what they
do. He fails to
set out the differentiation; and that the differentiation amounts to
discrimination which is unfair. Similarly
he would need to make such
a comparison with respect to the complaint about none payment of a
bonus. He has not done so.
18.
As the
Respondent says in their Heads of Argument, “
Mr
Mohlabane has not pleaded his claim to sustain his cause of action
and to enable Sandvik to defend his alleged equal pay for
work of
equal value claim. Without the identity of the white male colleagues
who earned more than Mr Mohlabane, the difference
in their
remuneration and the ground(s) on which Mr Mohlabane alleges he was
discriminated on, Mr Mohlabane has not set out the
factual and legal
basis for a cause of action
.”
[10]
19.
He fails to set out the factual circumstances which gives rise to his
claim that he was automatically dismissed. He would
for example need
to say that his dismissal arose from participation in a protected
strike, or related to a section 197 transfer
or that he had made a
protected disclosure to bring the termination within the spectrum of
section 187 of the LRA.
20.
I am satisfied that the Applicant has not set out a factual basis to
sustain a cause of action for discrimination or an
automatically
unfair dismissal. The exception defence of the employer is well
grounded, and the intention of such a step in the
early stages of
litigation is to weed out claims which cannot be sustained. It is
appropriate to do so in these circumstances.
21.
Of course the Applicant’s lack of merits in the leave to appeal
are further aggravated by the fact that he has a
review application
before this very court on matters which he seeks the LAC to hear.
The attack of
lis pendens
would apply.
22.
There is no reason for the Labour Appeal Court (“LAC”) to
hear the matter. The Applicant has not established
any grounds upon
which he has reasonable prospects of success in the LAC, nor are
there any compelling policy or legal reasons
warranting the attention
of that court.
23.
In the circumstances I make the following order
Order
24.
The Application for Leave to Appeal is dismissed.
25.
No order as to costs.
D
Norton
Acting
Judge of the Labour Court of South Africa
[1]
Paragraphs 1.1; 1.2 and 1.3 in the Application for leave to appeal.
[2]
Paragraph 2
[3]
Paragraph 6
[4]
(2016) 37 ILJ 1485 (LC). See too
Sepheka
v Du Pont Pioneer (Pty) Ltd
(2019) 40 ILJ 613 (LC)
[5]
At para 3
[6]
(2015)
36 ILJ 494 (LC)
[7]
Paragraph
12. See too paragraph 4 in
Khan
v MMI Holdings Ltd
(2018) 39 ILJ 1772 (LC)
[8]
(2018)
39 ILJ 1937 (CC)
[9]
Paragraph
15
[10]
Para 30 Respondents Heads of Argument