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[2013] ZALCJHB 59
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Bezuidenhout v Econoflex (Pty) Ltd (J 2463/2010) [2013] ZALCJHB 59 (29 April 2013)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not
reportable
CASE NO:
J
2463/2010
In the matter between:
JJA
BEZUIDENHOUT
..................................................................................................
APPLICANT
and
ECONOFLEX
(PTY) LTD
..........................................................................................
RESPONDENT
Date of ruling: 29
April 2013
RULING: APPLICATION
FOR LEAVE TO APPEAL
VAN
NIEKERK J
[1] This is an
application for leave to appeal against the whole of the judgment of
this court delivered on 8 March 2013. In its
judgment, the court
dismissed a claim brought in contract for some R1.6 million,
principally on the basis that what the applicant
sought was a claim
of specific performance, there being no tender of services on his
part. The court found further that to the
extent that specific
performance was a discretionary remedy, the matter was not one in
which a discretion ought to be exercised
in favour of the applicant,
whose real claim was one for damages. The reasons for the court’s
finding appear in the judgment,
and I do not intend to repeat them
here.
[2] The applicant submits
that the court failed to apply its mind in a number of respects. All
of these submissions relate to the
evidence led, and in essence,
amount to a proposition that another court might reasonably take a
different view of the facts. This
submission ignores the basis of the
court’s finding, one based on a legal proposition not dependent
on any particular factual
finding. In essence, the court found that
the applicant’s failure to tender his services was fatal to his
claim. The composition
of the applicant’s remuneration package
is not relevant to this issue, nor is the fact that he had been
suspended by the
respondent. What the applicant failed to do was to
claim specific performance as against a tender to work.
[3] To the extent that
the application for leave to appeal relies on an inappropriate degree
of intervention by the court in the
proceedings, the same point
holds. In any event, in the absence of any legal representation of
the respondent and the attempts
by clearly inexperienced directors to
undertake that task, this court has recognized that it may be
necessary to adopt a more inquisitorial
approach to ensure that the
case is properly and fully ventilated. There is obviously a limit;
the court must ensure that an injustice
is not done to the other
party. No objection to any intervention was taken by the applicant’s
counsel during the course of
the proceedings. Since the applicant
clearly did not have any difficulty at that stage, I fail to
appreciate how at this point
it is an issue that warrants an appeal.
For
these reasons, I make the following order:
Leave to appeal is
refused.
André van Niekerk
Judge of the Labour Court