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[2013] ZALCJHB 94
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Soley and Others v University of Pretoria and Another (J 579/11) [2013] ZALCJHB 94 (20 March 2013)
5
REPUBLIC OF SOUTH
AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not reportable
case no: J 579/11
In the matter between:
PROFFESSOR SOLEY J.T
.....................................................................
First
Applicant
DR VAN STADEN S.L
........................................................................
Second
Applicant
PROFFESSOR BOOTH K
......................................................................
Third
Applicant
(Respondents in the
application for leave to appeal)
and
UNIVERSITY OF PRETORIA
.............................................................
First
Respondent
PROFESSOR MADEKUROZWA
...................................................
Second
Respondent
(Applicants in the
application for leave to appeal)
Decided : In Chambers
Judgment : 20 March
2013
Summary :
Interlocutory applications: Application to stay; Application for
leave to amend the response to the statement of claim
and the
application for an order to enrol matter for hearing in terms of Rule
6(5)(a) of the Rules of the Labour Court. Application
for leave to
appeal dismissed. Interlocutory orders are not appealable.
JUDGMENT
AC BASSON J
[1] This is an
application for leave to appeal by the respondent (the University of
Pretoria) against my judgment handed down on
24 December 2013. For
purposes of this brief judgment I will continue to refer to the
parties as “the University” and
“the Professors”).
The second respondent (“Professor Madekurozwa”) is not a
party to this application.
[2] I do not intend for
purposes of this brief judgment to repeat my findings nor to
summarise the comprehensive and lengthy written
submissions submitted
to the Court in this application for leave to appeal. Suffice to
point out that I have studied the submissions
submitted by Mr Freund
SC on behalf of the University and those submitted by Mr Grogan SC on
behalf of the Professors.
[3] I am in agreement
with Mr Grogan SC on behalf of the Professors that there are two
grounds on which this application can be
disposed of: (i) Firstly,
despite the lengthy arguments submitted by Mr Freund on behalf of the
University, I am of the view that
these orders are not appealable.
(ii) Secondly, the application for leave to amend was premature.
[4] I am in agreement
that it is trite law that interlocutory rulings are generally not
appealable unless they satisfy three criteria:
(i) Firstly, they are
final in effect and not susceptible to alteration by the court of
first instance (in this case the Labour
Court); (i) Secondly they are
definitive of the rights of the parties and (iii) Thirdly, they have
the effect of disposing of at
least a substantial portion of the
relief (or defence) claimed in the main proceedings.
1
[5] Briefly, in respect
of the order dismissing the application to stay, I am of the view
that this order does not satisfy any of
the three criteria referred
to. The order dismissing the application to stay is not dispositive
of any of the parties’ rights
nor is this order final in
effect. This order merely results in the trial running its normal
course. Furthermore, this Court has
exclusive jurisdiction of the
claim referred to it and the University does not take issue with this
finding.
[6] Secondly, in respect
of the order dismissing the application to amend, the order merely
orders that the University was not entitled
to introduce an amendment
at this
juncture
–
in
other words at the time of the hearing of the application to amend.
2
This order is likewise
not definitive of any of the parties’ rights – most
notable those of the University. Moreover,
nothing prevents the
University from seeking the amendment at a later stage
if
and
when
the
High Court should ultimately rule that Madekurozwa’s disclosure
were in fact protected. I am further in agreement with
Mr Grogan that
this order will also not prevent the University from leading
evidence, if it can to prove that Madekurozwa’s
conduct did not
warrant disciplinary action. I am also in agreement that this order
does not dispose of any of the relief sought
in the main proceedings
nor of a substantial portion thereof. The crux of the dispute before
the Court as it appears from the papers
is that the Professors are
seeking relief for unfair discrimination on the basis that the
University did nothing up to the time
of
litis
contestation
to
discipline Madekurozwa for accusing them of racism. Furthermore, as
already pointed out, this order does not preclude the University
from
raising the protected disclosure issue if and when it becomes
relevant. However, at the time of hearing of this matter, that
issue
had no relevance. Moreover, the order also does not prevent
Madekurozwa from testifying before this Court as an when this
matter
finally proceeds to trial. The University may even subpoena her to
testify if it wishes to do so. I restate: this Court
merely held that
the alternative defence was premature as the High Court has not yet
ruled on that issue. The application to amend
is premised on the
possibility that a court of competent jurisdiction may yet find that
Madekurozwa’s claim was made in good
faith. This in my view is
not a sufficient basis to have granted the application to amend. In
any event, this order does not preclude
the University from raising
this defence at trial. As already pointed out, the order merely has
the effect that at the time of
this hearing, there was no basis for
raising such a defence. This order certainly does not have the effect
of precluding the University
from raising the defence should such a
defence become available.
[7] Lastly, the
applicants have a right to have their dispute resolved with
reasonable expedition. It is manifestly in the interest
of justice
for this matter to be enrolled for trail. In respect of the cost
order granted by the Court, I am in agreement with
Mr Grogan that a
cost order was warranted in light of the fact that the
country-application was overwhelmingly successful. In respect
of
costs in this application, I am of the view that costs should also
follow the result.
[8] In the premises the
application for leave to appeal is dismissed with costs on the basis
that the orders at issue are not appealable.
_______________________
AC BASSON, J
Judge of the Labour Court
APPEARANCES
Fort the Applicant :
Advocate J G Grogan SC
Instructed by : Du Toit
Attorneys
For the respondent :
Advocate A J Fruend SC
Instructed by : Anton
Bakker Attorneys
1
[zRPz]Guardian
National Insurance Co Ltd v Searle NO
1999 (3) SA 296
(SCA).
2
Ad
paragraph [40] of the judgment.