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[2015] ZALCJHB 113
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IT Knowledge & Expertise CC v Verwey and Another (J 2650/14) [2015] ZALCJHB 113 (1 April 2015)
REPUBLIC
OF SOUTH AFRICA
THE LABOUR COURT
OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case no: J
2650/14
DATE: 01 APRIL
2015
Not Reportable
IT KNOWLEDGE &
EXPERTISE
CC
..................................................................................
Applicant
And
ADELAIDE
VERWEY
.................................................................................................
First
Respondent
THE SHERIFF OF
THE COURT JOHANNESBURG
EAST IN HIS
OFFICIAL
CAPACITY
...................................................................
Second
Respondent
Decided: 1 April
2015
Decided
in chambers
LEAVE
TO APPEAL - JUDGMENT
TLHOTLHALEMAJE,
AJ
Introduction:
[1]
This is an application for leave to appeal
against a judgement of this Court delivered on 8 December 2014 in
terms of which the
Applicant’s urgent application to stay a
writ of execution issued by the Registrar of this Court was dismissed
with costs.
[2]
The writ of execution was issued against
the Applicant based on a certified arbitration award issued on 21
February 2011 in the
First Respondent’s favour, in terms of
which she was awarded R83 832.00 as compensation for her dismissal,
which a Commissioner
of the CCMA had found to be both substantively
and procedurally unfair. The First Respondent opposes the application
for leave
to appeal. The background of the matter appears in the
judgment issued in respect of the urgent application and will not be
repeated
herein.
Application for
leave to appeal:
[3]
The Applicant contends that leave to appeal
should be granted based on a number of allegations as outlined
hereunder;
3.1
When deciding the urgent application, the
Court failed to consider the fact that the Applicant challenging the
cause of action of
the writ launched a review application.
3.2
The Court failed to consider the interests
of justice in considering whether to grant the stay of execution or
not and that such
considerations would have warranted the writ being
stayed.
3.3
The Court erred in not attributing the
problems experienced in the review application to the Applicant’s
previous attorneys
of record and thereby not attributing liability
for the conduct to the Applicant at all.
3.4
The Court displayed bias in stating that
the First Respondent is entitled to finality as it is alleged that
both parties are entitled
to finality.
3.5
The Court failed to consider the principle
of
audi alteram partem
in
that it did not grant the stay of the writ pending the finalisation /
proper ventilation of the review application.
3.6
The Court failed to consider the
seriousness of the charges that were levelled against the First
Respondent by the Applicant, and
that she was the author of her own
dismissal.
3.7
The First Respondent is a woman of straw
and she will not have the means to repay the money awarded to her if
the writ is ultimately
executed.
3.8
The Court failed to consider the prospects
of success of the review application and the prejudice which will be
suffered by the
Applicant in dismissing the application to stay the
writ, which it avers is more prejudicial to the Applicant than to the
First
Respondent.
[4]
The First Respondent refutes the above alleged grounds for appeal and
highlights a number of aspects the most pertinent of which
being:
4.1
The review application and the initial
application to stay execution were both defective in that they were
not served properly on
her nor was the record in the review prepared
or served on her.
4.2
The Applicant cannot hide behind the
conduct of its attorneys. The First Respondent also points out that
the hearing of the urgent
application was postponed to ensure
compliance with
audi alteram partem
.
4.3
The Applicant and its representatives are
acting
mala fide
in bringing the present proceedings which are alleged to be devoid of
prospects of success and a waste of the Court’s time
and
resources.
4.4
The Applicant is responsible for the
situation that it finds itself in and reiterates that the defects in
the review application
were never rectified and the Rule 11
application was unopposed even though service was properly effected.
4.5
The Applicant has legal recourse against
its previous attorneys of record should it wish to exercise such.
4.6
The application for leave to appeal should
be dismissed with costs on an attorney and own client scale.
Legal framework
in respect of applications for leave to appeal:
[5]
It is trite that the test for determining whether to grant an
application for leave to appeal is whether there are reasonable
prospects that another Court (on appeal) may come to a different
conclusion as reached by the Court a
quo
.
This test is described by Corbett CJ in
National
Union of Metal Workers of South Africa v Jumbo Products CC
[1]
in the following terms:
“
In
such a case the enquiry is whether there are reasonable prospects of
success, ie whether there is a reasonable prospect that
the Court of
appeal may take a different view and hold the trial Judge to have
been wrong (see S v Ackerman en 'n ander
1973 (1) SA 765
(A); Botes
and Another v Nedbank Ltd
1983 (3) SA 27
(A), at 28 D)”
[6]
The test was also considered by Petse, ADJP (as he then was) in
Minister
of Safety and Security and Another v Madyibi
[2]
,
who
had held that;
“
In
giving consideration to the issues at hand I am enjoined by judicial
authority to take due cognisance of the test which is of
application
in matters of this nature. Judicial authority requires of a Judge
considering an application for leave to appeal to
reflect
dispassionately upon the decision sought to be appealed against and
decide whether or not there is a reasonable prospect
that the Appeal
Court may come to a different conclusion. This necessarily requires
of me to disabuse my mind of the fact that
I was of the view when I
delivered my judgment that it was supportable both on the facts of
the case and the law applicable thereto’.
Evaluation:
[7]
The Applicant relies heavily on the submission that the review
application is not finalised and the averment that it has excellent
prospects of success in the review application. The Applicant however
failed to prosecute the review application timeously, which
in itself
was a defective, to the extent that the record of the CCMA
proceedings was never filed. The Rule 11 application was properly
before this Court with notice given to the Applicant’s
attorneys and the Applicant’s attorneys failed to oppose the
application, which was granted. The First Respondent correctly points
out that the Applicant has recourse against its previous
attorneys of
record should they wish to pursue such a route.
[8]
Other than the above insurmountable difficulties faced by the
Applicant as outlined above, and as detailed in the main judgment,
other difficulties faced by the Applicant are that;
8.1 In order for the
Applicant to be successful in proceeding with the review application,
it would need to be successful in respect
of its application for
rescission pertaining to the Rule 11 application.
8.2
The Applicant still needs to apply for the
review application to be reinstated and be granted an indulgence in
respect of that application.
8.3
There is still a need to correct the
defective application, obtain the record to be filed in respect of
the review application with
further pleadings, and apply for
condonation in a number of respects. In the mean time, the First
Respondent is expected to wait
for all of these steps to be taken
whilst in possession of a writ of execution. This in my view cannot
be in the interests of justice,
which as I had indicated in the main
judgment, entitled the First Respondent to finality.
[9]
Having considered the grounds for leave to appeal, the submissions
made in regard to this application, the legal framework as
outlined
above, and the hurdles faced by the Applicant, I am of the view that
there is no prospect that another Court (the Labour
Appeal Court)
will come to a different conclusion to the one reached by the Court a
quo
.
Costs:
[10]
The First Respondent seeks the dismissal of the application for leave
to appeal with a punitive costs order on attorney and
own client
scale. The appropriate costs scale was considered in
Sentrachem
Ltd v Prinsloo
[3]
wherein the following was said:
“
On
appeal, the Court reiterated that an award of attorney and own client
costs had to be seen as an attempt by the Court to go one
step
further than an ordinary order of costs between attorney and client
so as to ensure that the successful party was indemnified
with regard
to all reasonable costs of litigation.”
[12]
The appropriate scale was further considered by Steenkamp J in
Rudman
v Maquassi Hills Local Municipality and others
[4]
as
follows:
“
Considering
the appropriate scale, Erasmus Superior Court Practice
[5]
points out that an award of costs as between attorney and own client
has been described as ‘exceptional, very punitive and
as
indicative of extreme opprobrium’. Erasmus lists various
circumstances in which the Courts have, over the years, awarded
costs
on this exceptional scale. One of the instances is where a party’s
conduct has been found to be “unconscionable,
appalling and
disgraceful.”
[6]
[13]
The Applicant has correctly pointed out that the First Respondent is
a woman of straw. It cannot thus be expected of her to
continue to be
burdened with legal fees in circumstances where the Applicant’s
new attorneys of record are attempting damage
control as a
consequence of its erstwhile attorneys’ pure ineptitude. Given
the circumstances of this case, considerations
of law and fairness
dictate that the First Respondent should be entitled to her costs,
albeit
not on a punitive scale. To this end, the following
order is made;
Order:
i.
The application for leave to appeal is
dismissed with costs.
Tlhotlhalemaje,
AJ
Acting
Judge of the Labour Court of South Africa
[1]
[1996] ZASCA 87
;
1996 (4) SA 735
(A) at 742B
[2]
(1034/2004)
[2008] ZAECHC 180
(30 October 2008) at para 20
[3]
1997
(2) SA 1
(SCA)
(quoting from the headnote).
[4]
(2014)
35 ILJ 765 (LC)
[5]
Erasmus
Superior
Court Practice
at E12-26.
[6]
Supra
at para 15