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[2014] ZALCJHB 123
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Chauke v Pan South African Language Board and Another (J690/14) [2014] ZALCJHB 123 (10 April 2014)
REPUBLIC
OF SOUTH AFRICA
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
REPORTABLE
CASE
NO:J 690/14
In
the matter between -
MIKATEKO
FLOYD
CHAUKE Applicant
And
PAN
SOUTH AFRCAN LANGUAGE
BOARD First
Respondent
MXOLISI
ZWANE
Second
Respondent
Heard:
08 April 2014
Date
of Judgment: 10 April 2014
Summary:
Application to declare Judgment executable consequent leave to
appeal. Principles applicable when considering application
to
have judgment executable not withstanding leave to appeal.
JUDGMENT
MOLAHLEHI
J
[1]
On 28 March 2014, the
Court per Lagrange J having found that the applicants’
application was urgent made the following order:
“
b.
The respondents’ suspension of the first to fifth applicants on
19 March [2014]
is set aside and the respondents must allow the said
applicants to return to work with effect from 31 March 2014, pending
the outcome
of the unfair labour practice dispute referred to the
Commission for Conciliation, Mediation and Arbitration is set out in
Annexure
“KFC 24-30 to the founding affidavit.”
[2]
It is common
cause that the respondent did not comply with the Court order and
thus the applicants remained suspended. In the meantime
the
respondent filed an application for leave to appeal against the
judgment.
[3]
The applicant has on the other hand applied to have the judgement
given effect in terms of rule 11 of the Rules of the Labour
Court
read with rule 49 (11) of the High Court's Rules. The
applicants in this respect seek to have the judgement implemented
despite the leave to appeal filed by the respondent. Rule 49 (11) of
the High Court Rules provides as follows:
“
Where
an appeal has been noted or an application for leave to appeal
against or to rescind, correct, review or vary an order of
a court
has been made, the operation and execution of the order in question
shall be suspended, pending the decision of such appeal
or
application, unless the court which gave such order, on the
application of a party, otherwise directs.”
[4]
Mr Nowosentz, for the respondent, argued
that the matter was not urgent because the dispute referred to in the
judgement is scheduled
for conciliation the day after the hearing in
this matter which is on 9 April 2014 at the CCMA offices. This was
not disputed by
Mr Faku, for the applicants. He however contended
that, there was no prospect of success in the leave to appeal because
the order
made was interim and not final. He correctly pointed out
that as a general principle of our law interim orders are not
appealable.
[5]
As
concerning the prospect of success Mr Nowosentz contended that
the respondent has prospect of success on leave to appeal
because the
decision of the Lagrange J was in conflict with other decisions such
as MEC for Education: Northwest v Gradwell’s,
[1]
where the Court held that:
“
[46]
Disputes concerning alleged unfair labour practices must be referred
to the CCMA or a bargaining council for conciliation
and arbitration
in accordance with the mandatory provisions of section 191(1) of the
LRA. The respondent in this case instead sought
a declaratory order
from the Labour Court in terms of section 158(1)(a)(iv) of the LRA to
the effect that the suspension was unfair,
unlawful and
unconstitutional. A declaratory order will normally be regarded as
inappropriate where the applicant has access to
alternative remedies,
such as those available under the unfair labour practice
jurisdiction. A final declaration of unlawfulness
on the grounds of
unfairness will rarely be easy or prudent in motion proceedings. The
determination of the unfairness of a suspension
will usually be
better accomplished in arbitration proceedings, except perhaps in
extraordinary or compellingly urgent circumstances.
When the
suspension carries with it a reasonable apprehension of irreparable
harm, then, more often than not, the appropriate remedy
for an
applicant will be to seek an order granting urgent interim relief
pending the outcome of the unfair labour practice proceedings.
(Footnote omitted)
[6]
Turning to principles governing
applications of this nature, it is trite that the judgement or the
order of the Court is upon the
filing of leave to appeal suspended
pending the outcome of the appeal. In other words the operation or
execution of a judgement
or order is suspended pending the outcome of
the appeal. The court may however on application direct that, that
judgement or order
be given effect or be executed notwithstanding the
application for leave to appeal.
[7]
It
trite that in considering an application to have the judgement
or order implemented despite the leave to appeal, the Court
has a
discretion to exercise which it does by taking into account the
factors set out in
South
Cape Corporation (Pty) Ltd v Engineering Management Services (Pty)
Ltd
,
per Corbett JA in the following terms:
[2]
“
The
Court to which application for leave to execute is made has a wide
general discretion to grant or refuse leave and, if leave
be granted,
to determine the conditions upon which the right to execute shall be
exercised. This discretion is part and parcel
of the inherent
jurisdiction which the Court has to control its own judgments. In
exercising this discretion the Court should,
in my view, determine
what is just and equitable in all the circumstances and, in doing so,
would normally have regard,
inter
alia
, to the following factors:
(1)
the potentiality of irreparable harm or prejudice being sustained by
the appellant on appeal
(respondent in the application) if leave to
execute were to be granted;
(2)
the potentiality of irreparable harm or prejudice being
sustained by the respondent
on appeal (applicant in the application)
if leave to execute were to be refused;
(3)
the prospects of success on appeal, including more particularly
the question as to
whether the appeal is frivolous or vexatious or
has been noted not with the
bona fide
intention of
seeking to reverse the judgment but for some indirect purpose, e.g.,
to gain time or harass the other party;
and
4.
Where there is the potentiality of irreparable harm or prejudice to
both appellant
and respondent, the balance of hardship or
convenience, as the case may be.”
[8]
In considering whether it should be
ordered that the judgment in question should be given effect despite
the leave to appeal account
should be taken of the nature of that
judgement.
[9]
Before dealing with the essential
aspects of that judgement, I need to point out that I do not agree
with Mr Nowesentz that, that
the judgement is in conflict with that
in Gladwell’s case. It is clear that the Court in this matter
intervened in the suspension
of the applicants on the basis that the
conduct of the respondent was unlawful and also amounted to
occupational detriment as envisaged
in the Protection of Disclosure
Act 26 of 2000.
[10]
Turning to the issue of the prospect of
success, in the leave to appeal, I am in agreement with Mr Faku that
the prospects are weak
when regard is had to the nature of the order
made by the Court. The court uplifted the suspension of the
applicants and ordered
their reinstatement, "pending the outcome
of the unfair Labour Practice referred to the CCMA.’’ In
arriving at
that conclusion the Court reasoned:
“
[24]
Given the respondent’s failure to provide any substantiation of
a sufficient reason to justify the
suspension decision, coupled with
the
prima facie
evidence that it may be for an improper motive which may also entail
the suspension being found to be unlawful and, or alternatively
an
unfair labour practice in terms of section 4(2)(b) of the PDA on
account of amounting to an occupational detriment, I am satisfied
that the applicants have established a right though open to some
doubt, to interim relief to stay the imposition of suspension
on the
basis that there is reason to believe that it was initiated for an
improper purpose which would render it unlawful, or that
the
suspensions amount to occupational detriments.
[25]
In the circumstances I consider it would be appropriate to uplift the
suspensions at least
pending the outcome of the CCMA proceedings
arising from the unfair labour practice referral which would
obviously also entail
at least the conciliation of the PDA related
version of the unfair labour practice.
[26]
Although the CCMA may not adjudicate on an unfair labour practice
claim relating to an occupational
detriment under the PDA, the first
stage for considering that dispute is conciliation of the alleged
unfair labour practice at
the CCMA.
[3]
The upshot of that might be that one or more strands of the unfair
labour claim arising from the suspension may be settled, or
the
applicants might abandon the unfair labour practice claim relating to
an occupational detriment and pursue only an ordinary
unfair labour
practice claim on the substantive and procedural unfairness of the
suspensions, or they may elect to refer the claim
based on an alleged
occupational detriment to the Labour Court for adjudication. In any
event there would be an outcome of the
dispute referral, at which
juncture the ongoing status of the suspensions could be reconsidered
in the light of the developments
to date. I do not think it would be
wise to extend the upliftment of the suspensions beyond that point,
because if the employer
wished to resume the suspensions at that
stage, assuming that option is still open to it, the circumstances
prevailing then might
be different, and might require
re-consideration of whether the upliftment of the suspensions should
be extended further.”
[11]
It is common cause that the CCMA
conciliation hearing is scheduled to take place the day after this
hearing, that is on 9 April
2014. The proper reading of the judgement
in my view is that the order made by the Court was interim pending
the CCMA conciliation,
which as stated is to take place a day after
the hearing in this matter.
[12]
Mr Faku sought to persuade the Court that
the suspension was made pending the outcome of the arbitration
hearing. In this
respect he relies on the last part of
paragraph 25 of the judgement which reads as follows:
". . . at least
pending the outcome of the CCMA proceedings arising from the unfair
labour practice referral.”
[13]
In my view the interpretation given to the
judgement Mr Faku is with due respect incorrect. It is in my view
apparent from the reading
of the judgement that the Court envisaged
that the uplifting of the suspension of the applicants was pending
the outcome of the
conciliation proceedings and not that of the
arbitration. From the reasoning of the Court it could never
have been intended
to be pending the outcome of the arbitration
proceedings because “beyond that point” the employer
would have no power
to extend the suspension further. The employer
would beyond the arbitration point be bound by the determination made
in the arbitration
award which in law would be final and binding on
both parties.
[14]
In light of the above I am of the view that
the balance of convenience would not favour granting an order as
prayed for by the applicants
in the circumstances where such order is
to take effect for a day only because after interim order made by
Lagrange J would lapse.
In the circumstances of this case I see
no reason why costs should not follow the results.
Order
[15]
In the premises the applicant's application
is dismissed with costs.
Molahlehi
J
Judge
of the Labour Court of South Africa
Appearances:
The
Applicant: Mr Faku
Instructed
by Faku Attorneys
For
the Respondent: Adv L Nowesentz
Instructed
by Mokoena Attorneys.
[1]
(2012)
8 BLLR 747 (LAC).
[2]
1977
(3) SA 534
(AD)at
545C-G
[3]
See
s 4(2)(b) of the PDA.