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[2015] ZALCJHB 130
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SAMWU and Others v Thaba Chweu Local Municipality and Another (J2106/2013) [2015] ZALCJHB 130 (20 April 2015)
REPUBLIC
OF SOUTH AFRICA
THE LABOUR COURT
OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case no: J 2106
/2013
DATE: 20 APRIL
2015
Not Reportable
In the matter
between:
SAMWU
............................................................................................................................
First
Applicant
MEMBERS WHO’S
NAME ARE LISTED
IN ANNEXURE
‘’A’’
............................................................................
Second
and Further Applicants
And
THABA CHWEU LOCAL
MUNICIPALITY
............................................................
First
Respondent
THE MUNICIPAL
MANAGER –
JOSEPH
MISHACK
MNISI
...................................................................................
Second
Respondent
Heard: Considered
in Chambers
Delivered: 20
April 2015
Summary:
Application for leave to appeal – Test to be applied –
reasonable prospect of different conclusion
Leave
to appeal – no proper grounds made out – application for
leave to appeal dismissed
JUDGMENT
SNYMAN
AJ
Introduction
[1]
This matter concerned an application by the applicants seeking that
the respondents be held in contempt of Court, which was
countered by
a rescission application by the first respondent seeking to rescind
and set aside the order granted against it by
default and which
formed the subject matter of the contempt application. What I was
also called on to decide was the issue of condonation
for the late
filing of the rescission application of the first respondent.
[2]
The application was argued before me on 15 October 2014 by both
parties and in a judgment handed down on 11 February 2015, I
dismissed the contempt application, and granted the first respondent
condonation and granted its rescission application, subject
to
certain conditions.
[3]
The applicants then filed an application for leave to appeal with the
Labour Court on 4 March 2015.
[4]
Both parties filed written submissions in the leave to appeal in
terms of Clause 15.2 of the Practice Manual. Clause 15.2 of
the
Practice Manual further determines that an application for leave to
appeal will be determined by a Judge in chambers, unless
the Judge
directs otherwise. I see no reason to direct otherwise and will
therefore determine the applicant’s leave to appeal
application
in chambers, based on the written submissions filed by both parties.
Test for leave to
appeal
[5]
In
deciding whether to grant leave to appeal to the Labour Appeal Court,
the Labour Court must determine whether there is a reasonable
prospect that another Court might come to a different conclusion to
that of the Court a quo.
[1]
[6]
As was specifically said in
Karbochem
Sasolburg (A Division of Sentrachem Ltd) v Kriel and Others:
[2]
‘
I
have understood that the test in deciding whether to grant leave to
appeal is the traditional test. It requires a judge to ask
whether
there is a reasonable prospect that another court may come to a
different conclusion. See
North
East Cape Forests v SAAPAWU and others
(1997)
18
ILJ
729 (LC)
;
[1997]
6 BLLR 705
(LC) at 710A-B;
NEWU
v LMK Manufacturing (Pty) Ltd and Others
[1997]
7 BLLR 901
(LC) and Landman and Van Niekerk
Practice
in the Labour Courts
(Service 1) at A-41.’
[7]
The applicants for leave to appeal thus have to show in this instance
that there is a reasonable prospect of another Court coming
to a
different conclusion. The individual grounds upon which the
applicants’ application for leave to appeal is based, will
be
addressed in this judgment hereunder.
The merits of the
application for leave to appeal
[8]
A substantial partl of the applicants’ leave to appeal grounds
relate, in general, to the issue of condonation being granted
for the
late filing of the first respondent’s rescission application.
The applicants contend that first respondent
never applied for
condonation for such late filing, that the notice of motion contained
no prayer for condonation, and thus it
was simply not competent to
grant condonation in the absence of it being sought. The
applicants also contend that no proper
explanation for the delay was
submitted. I deal with these contentions next.
[9]
Whilst I accept that the notice of motion for rescission contained no
prayer for condonation, it is simply not so that the first
respondent
did not apply for condonation. In fact, this whole issue must be seen
in the proper context. When the applicants
raised as
objection
in
limine
in the answering affidavit to the rescission application that the
rescission was brought out of time, the applicant replied stating
that its rescission application was brought in terms of what it
called the ‘common law’ and thus had to be brought
in a
reasonable time and was not late. It is thus not that the first
respondent simply flouted the Court Rules, as it was of the
bona fide
view that these Rules did not apply in this particular instance.
This obviously explains why, in the initial rescission
application,
condonation was not sought. As stated in my judgment
[3]
,
I did not agree with this contention of the first respondent and held
that Rule 16A applied and condonation was required.
In the
absence of the first respondent asking for condonation, that would
have been the end of the matter insofar as it concerns
the rescission
application. But, and fortunately for the first respondent,
having been alerted the applicants’ objections
in the answering
affidavit, the first respondent said the following in the replying
affidavit (referring to its rescission application):
[4]
‘…
.
However, if it is late and for the reasons appearing in paragraphs 5
to 24 of the founding affidavit, I respectfully submit that
condonation should be granted.’
In
my view, this is tantamount to the first respondent seeking
condonation, and this brought the consideration of condonation
squarely
into play. Significantly also, both parties filed
further sets of replying affidavits, and the applicants never raised
as
a complaint, for example, that the first respondent could not ask
for condonation on the basis that it did in the replying affidavit.
[10] Further, and
when this matter was argued before me, the first respondent did make
submissions in support of condonation being
granted, and this at
least was tantamount to applying for condonation from the bar.
Even though such applications for condonation
from the bar must be
discouraged, it is not incompetent to do so, and can be permitted in
circumstances where justice and fairness
so dictate, and the time
limit not complied with is not a jurisdictional fact imposed by a
statute.
[5]
In particular, all the evidence necessary to decide condonation was
already before me in the affidavits, and in this
regard, the
following approach as stipulated in
Els
Transport v Du Plessis and Others
[6]
was competent:
‘…
. An
application for condonation was therefore warranted. As the evidence
in support of such an application was already on the papers
before
court, it could have been made from the bar (
Northam
v UUNet
G
Internet
Africa (Pty) Ltd and Others
(1998)
19 ILJ 862 (LC)
).’
[11]
Accordingly, there is simply no merit in the ground of leave to
appeal advanced the applicants, to the effect that the first
respondent did not seek condonation and that an application for
condonation was not before me. There is no reasonable prospect
that another Court may come to a different conclusion in this
respect.
[12]
The applicants then contend that the explanation offered by the first
respondent was in any event insufficient so as to justify
the
granting of condonation. The fact of the matter is that it is
virtually the same explanation as the one that relates
to the
rescission application. In short, the explanation for
condonation and explanation for rescission largely overlap.
This is actually said by the first respondent, having regard to the
extract from the replying affidavit referred to above.
I have
dealt with this explanation in detail in my judgment, and I do not
propose to do so again. The simple point is that
in deciding to
grant either rescission, or condonation, I must exercise a
discretion. In
Foster
v Stewart Scott Inc,
[7]
the
court stated that:
‘
It
is well settled that in considering applications for condonation the
court has a discretion, to be exercised judicially upon
a
consideration of all the fact
s’
A higher Court will
only interfere with such discretion if it is shown to have been
exercised in a mala fide manner, or some or
other gross irregularity
was committed in the exercise of the discretion or where the Court a
quo exceeded its powers. None of
this was shown or even alleged in
this instance. The applicants in effect simply want a higher Court to
exercise the same discretion
in another way. This cannot support any
conclusion of another Court coming to a different conclusion.
[13]
One
can do no better than to refer to what the Court specifically said in
Coates
Brothers Ltd v Shanker and Others
[8]
where the Court held as follows with specific reference to a refusal
by the Court
a
quo
to
grant condonation
:
‘
An
appellant must show, in an appeal from a decision in a lower court,
that the court a quo 'acted capriciously, or acted upon a
wrong
principle, or in a biased manner, or for insubstantial reasons, or
committed a misdirection or an irregularity, or exercised
its
discretion improperly or unfairly.’
Even
if it is accepted that I erred on the issue of the explanation (which
I reiterate is simply not the case), then the following
ratio from
the judgment in
Coates
Brothers
is
quite apposite:
[9]
‘
As
I have said earlier, the court a quo erred in its finding in regard
to the lack of explanation for its stance on the absence
of the
employee's signature and I accept that it may have erred in its
findings as to the prospects of success and the weight given
thereto.
Let it be assumed, in favour of the employer, that these errors were
made by the court a quo. They would not, however,
constitute
misdirections of such a kind that they would warrant interference
with the discretion exercised by the court a quo.
The court a quo did
not exercise its discretion improperly or unreasonably; such errors
as may have been made were not serious
within the context of the
issues which were before the learned judge.’
[14]
The same considerations would apply to the rescission application,
with the following added dimension, as said in
Shoprite
Checkers (Pty) Ltd v Commission for Conciliation, Mediation and
Arbitration and Others
[10]
:
‘…
.
Broadly speaking, the exercise of the Court's discretionary power
appears to have been influenced by considerations of justice
and
fairness, I having regard to all the facts and circumstances of the
particular case. ….’
I
remain of the view that in this particular case, justice and
fairness, as well, demanded that the issues forming the foundation
of
the first respondent’s rescission application need to be
properly ventilated, and not finally determined by default.
[15]
Accordingly, it is my view that there is no reasonable prospect that
another Court could come to a different conclusion with
regard to the
discretions I have exercised, where it comes to rescission, and
condonation, especially with regard to the issue
of the explanation.
This basis for seeking leave to appeal thus falls to be rejected as
well.
[16]
The applicants further contend that I mischaracterized the first
respondent’s defences. But this is not the case.
What is the case is that I did not ascribe to the characterization
the applicants sought to attach to the first respondent’s
defences, which, understandably, is motivated by their objective of
defeating such defences. The fact that I disagree with
the
applicants does not make the characterization of the defences I chose
to adopt appealable or wrong. I may mention that
in their
written submissions in support of the leave to appeal application,
the applicants quote from the first respondent’s
founding
affidavit in the rescission application, but do so rather
selectively. A prime is example is the applicants relying
only
on certain passages quoted from the founding affidavit in support of
contending that I was incorrect in saying that the first
defence of
the first respondent was that Koma was coerced into signing the
agreement by misconduct of the individual applicants.
But what
the applicants do not refer to is the specific contention in the
founding affidavit where it is recorded that ‘Koma
was
pressured to enter into the settlement agreement ….’,
with specific reference to the misconduct of the individual
applicants in this regard.
[11]
Once again, I am simply not convinced that there is a reasonable
prospect of another court coming to a different conclusion
in this
respect.
[17]
The applicants place much emphasis on the first respondent’s
defence that it was entitled to refuse to honour the settlement
agreement. But what the applicants seem to fail to appreciate
is that I rejected that defence. I specifically held
that the
first respondent was not entitled to simply refuse to comply with the
agreement even if it thought it was unlawful, and
it was compelled to
take steps to challenge the agreement. I concluded that the
first respondent laboured under a misapprehension,
but, and
considering the issues and the facts of this matter, the first
respondent should be afforded the opportunity to take the
relevant
and required steps. It is in fact the applicants that
completely misread what I have said in my judgment, and their
contention of a mischaracterization of the first respondent’s
defence in this regard has no substance. There is accordingly
equally
no reasonable prospect of another court coming to a different
conclusion on this issue.
[18]
Finally, and as to the issue of my dismissal of the contempt
application, I remain unconvinced that that the judgment in
Bruckner
[12]
is not equally applicable in this case, especially considering the
frequent changes in municipal managers. After all, it is a particular
individual person, who was not the municipal manager at the time of
the order, that the applicants are now seeking to commit to
prison
for contempt. Also, the simple fact is that the first respondent did
file a rescission application to the order the applicant
sought to
contend the respondents were in contempt of. This has to dispel any
mala fides, for the reasons I have addressed in detail
in my
judgment. I am satisfied that there is no reasonable prospect of
another court coming to a different conclusion on the issue
of the
contempt application.
[19]
I thus conclude that the applicants in the
application for leave to appeal
have shown no reasonable
prospect that another Court may come to a different conclusion.
There is no reason why costs should
not follow the result in this
leave to appeal application.
Order
[20]
In the premises, I make the following order:
1.
The applicants’ application for leave to appeal is dismissed
with costs.
Snyman AJ
Acting
Judge of the Labour Court
APPEARANCES:
For the
Applicants: Ruth Edmonds Attorneys
For
the Respondents:
Phungo Inc Attorneys
[1]
See
National
Education Health and Allied Workers Union v University of Cape Town
and Others
(2003) 24 ILJ 95 (CC)
;
Ngcobo v Tente Casters (Pty) Ltd
(2002) 23 ILJ 1442 (LC) ;
Volkswagen
SA (Pty) Ltd v Brand NO and Others
(2001) 22 ILJ 993 (LC) ;
Singh
and Others v Mondi Paper
(2000) 21 ILJ 966 (LC) ;
Glaxo
Welcome SA (Pty) Ltd v Mashaba and Others
(2000) 21 ILJ 1114 (LC)).
[2]
(1999)
20 ILJ 2889 (LC)
at
2890D.
[3]
See
para 44 of the judgment.
[4]
See
para 11 of the replying affidavit.
[5]
See
City
of Johannesburg v SA Municipal Workers Union and Others
(2010) 31 ILJ 1175 (LC) at para 13;
SA
Broadcasting Corporation Ltd v Grogan NO and Another
(2006) 27 ILJ 1519 (LC) at para 19;
Siegelaar
v Minister of Safety and Security
(2005) 26 ILJ 133 (LC) at para 26;
Lumka
and Associates v Maqubela
(2004) 25 ILJ 2326 (LAC) at para 31.
[6]
(2001) 22 ILJ 1390 (LC) at para 8.
[7]
(1997)
18 ILJ 367 (LAC)
at
369C-E.
[8]
(2003)
24 ILJ 2284 (LAC) at para 5.
[9]
Id at para 6.
[10]
(2007)
28 ILJ 2246
(LAC) para 28.
[11]
See
paras 28.6 to 28.10 of the founding affidavit in the rescission
application.
[12]
Minister
of Health and Another v Bruckner
(2007)
28
ILJ
612 (LAC).