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[2015] ZALCJHB 211
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Ncube v Musina Municipality - Council and Others (JR2727/13) [2015] ZALCJHB 211 (15 July 2015)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not Reportable
Case
no: JR2727/13
MOLOKO ANDREW
NCUBE
Applicant
and
MUSINA MUNICIPALITY
- COUNCIL
First
Respondent
JOHNSON MATSHIVHA –
MUNCIPAL MANAGER
Second Respondent
MIKE
MUKOMA
Third Respondent
ROBERT TAKALANI
RAMBUDA
Fourth Respondent
PEDRON NNDWA
Fifth Respondent
RIKA LE ROUX
Sixth Respondent
Decided:
15 July 2015 (in chambers)
JUDGMENT
– LEAVE TO APPEAL
SNIDER, AJ
[1]
Application for leave to appeal has been
made by the applicant in this matter on a variety of grounds.
[2]
The applicant asserts that I treated the
review application, which was based on the principle of legality, as
if it was a review
based on section 145 of the Labour Relations Act
(“the LRA”)
[1]
or in terms of the Promotion of Administrative Justice Act
[2]
where, on the appellant’s assertion, I should have had
reference to and relied on the Constitutional Court decision in
Khumalo and Another v Member of the
Executive Council for Education: KwaZulu Natal
(CCT 10/13).
[3]
The applicant refers to paragraph [16] of my judgment in this
regard. In that paragraph I made reference to
Basson
v Provincial Commissioner (Eastern Cape), Department of Correctional
Services.
[4]
[3]
I further referred, in footnote 8, to the
decision in
Pharmaceutical Manufacturers
Association of South African: in re: Ex Parte Application of the
President of the Republic of South
Africa
[5]
and referred therein specifically to the relevant
dicta
in that case.
[6]
In
Khumalo
(
supra
)
the Constitutional Court deals with the issue as follow –
“
[28]
To me, the
true nature of the application is one for judicial review under the
principle of legality, sought in terms of s 158(1)(h).
The
principle of legality is applicable to all exercises of public power
and not only to 'administrative action' as defined in
PAJA. It
requires that all exercises of public power are, at a minimum, lawful
and rational. Mr Khumalo's promotion
is argued to be unlawful
because of an alleged failure to comply with s 11 of the PSA. .
.”
Skweyiya
J giving the unanimous judgment of the constitutional court in
Khumalo
(
supra
)
refers, with approval, to Pharmaceutical Manufacturers (
supra
)
with particular reference to paragraphs 84 to 86 thereof on page
708. It will be noted, upon caparison, that the principles
set
out in Basson (
supra
),
in this regard, are the same as those set out in
Khumalo
(
supra
).
Accordingly there is no merit in this first ground of appeal.
[4]
Pharmaceutical
(
supra
)
was specifically referred to, with approval, in
Khumalo
(
supra
).
[7]
[5]
It is clear then from this brief
consideration of the jurisprudence dealt with in the judgment that
the correct test was applied,
proper regard was had to the principles
surrounding legality, and accordingly this ground of appeal must
fail.
[6]
The applicant seeks to challenge my finding
that the applicant had available to him the route of referring his
dispute to the Commission
for Conciliation, Mediation and Arbitration
(“the CCMA”) as an unfair labour practice.
[7]
I am bewildered by this ground of appeal.
Although I did deal with this issue and it is clearly an aspect which
could be held
against the applicant, I did not do so, and considered
the matter in full. Accordingly this cannot conceivably
constitute
a ground of appeal.
[8]
There is a theme, throughout the
application for leave to appeal, to the effect that the failure on
the part of the first to fourth
respondents to deliver answering
affidavits should strengthen the applicant’s case and weaken
their own. Whilst this may
be the case, it is not necessarily so, and
not the case in this matter.
[9]
There is also a suggestion at paragraph 1.3
of the application for leave to appeal that I went “
all
out to defer
” to the first and
second respondent’s decision. I reject this contention;
it is without foundation or substance.
[10]
The general principle, which must
necessarily be of universal application, is that an applicant has to
set out a proper case in
his or her founding affidavit for the relief
which is sought. It is necessarily open to the Court to
consider and scrutinise
the application to determine is such a case
has been made out.
[8]
Accordingly, even if I regard this application as being entirely
unopposed, it is still incumbent upon
the applicant to make out a
case for the relief sought. I found that he failed to do so.
Accordingly this ground of
appeal, which is repeated several times in
the application for leave to appeal, must fail.
[11]
I dealt, extensively, in the judgment, with
the issues surrounding the fifth respondent’s evidence.
There is no need
for me to embroider further on the issue in this
judgment. There is no ground for appeal made out in this
regard. I
refer to paragraph [19] of the judgment starting at
page 5.
[12]
The fact that the applicant must make out a
case in his founding affidavits and that the relevant respondents are
not obliged to
deliver answering affidavits does not impact on the
rules of evidence relating to the matters dealt with in the paragraph
referred
to above. Accordingly this does not constitute a
ground of appeal.
[13]
With reference to
Basson
(
supra
),
it is stated in the application for leave to appeal, that the
judgment in that case referred to letters and internal memos.
This is irrelevant. Clearly Ndlovu AJ must have been satisfied
that the relevant material was evidence which was properly
before
him. I was not. Similarly this ground of appeal
cannot succeed.
[14]
As set out above I dealt with the relevant
letter extensively. I considered the contents of the letter and
whether they would
support the applicant’s contentions.
They do not. I adopted a belt and braces approach in
determining not only
that the evidence was not relevant but that, in
any event, it was not admissible. No reason was advanced as to
why there
was no confirmatory affidavit. No store could be
placed by this letter.
[15]
Allegations are made around the increase in
the amount of salary in respect of the fourth respondent. I
have found that there
is nothing, in isolation, and without more
evidence, to indicate that this was in any way problematic. The
conduct surrounding
the training of the fourth respondent is
similarly of no relevance and cannot found a ground of appeal.
[16]
The contents of paragraphs 7.1 and 7.2 of
the affidavit in the review application are purely legal and I did
not find that the first
and second respondent’s, on the facts,
read in conjunction with the relevant jurisprudence, including
Basson
,
Khumalo
and
Pharmaceutical Manufacturers
(
supra
)
had conducted themselves in a way which rendered their conduct and
decisions reviewable. I deal with these matters comprehensively
in the judgment. Again the fact that the allegations went
unanswered is not relevant.
[17]
To extrapolate from the judgment that there
is somehow a finding that the third and fourth respondent’s
appointments were
lawful is an unwarranted extrapolation. The
focus and meaning of my judgment in this matter is nothing more or
less than
that the applicant failed to make out of case for the
review which he sought. Similarly this does not constitute a
ground
for appeal.
[18]
My comment that the application was of an
extremely technical nature is clearly
obiter
and an allusion to the application focusing on the technical aspects
and not providing a factual basis for a cause of action in
respect of
the relief sought by the applicant. Similarly this is not a
ground for appeal.
[19]
The decision in
Basson
(
supra
)
clearly deals with lawfulness, and that decisions must not be
arbitrary or capricious. “Arbitrariness” and
“capriciousness” are clearly akin to antonyms of
“rationality” and thus there is little to distinguish
between
Basson
,
Khumalo
and the other decisions referred to in this regard above. As
set out above I referred to
Pharmaceutical
Manufacturers
(
supra
)
in my judgment which is cited with approval in
Khumalo
(
supra
).
[20]
In relation to whether the applicant
qualified for the jobs, again, I made no finding in this regards but
simply remarked on the
applicant’s allegation that the fourth
respondent did not have the experience for the position and nothing
more. This is
not a ground for appeal.
[21]
Given the above, I am of the view that an
appeal against my judgment in this matter would not have a reasonable
prospect of success.
In
the premises I make the following order –
I.
The application for leave to appeal is
dismissed; and
II.
There is no order as to costs.
__________________
Snider, AJ
Acting
Judge of the Labour Court of South Africa
[1]
Act 66 of 1995, as
amended
[2]
Act 3 of 2000
[3]
[2013] ZACC
[4]
[2003] 4 BLLR 341
LC
[5]
2002 SA 674 (CC)
[6]
See also
paragraphs [89] and [90] on page 709 of the
Pharmaceutical
judgment.
[7]
Paragraph [28] of
Khumalo
,
starting on page 622.
[8]
Top Security
(Pty) Ltd v CCMA
(2012) 33 ILJ 992 (LC) per the judgment of Molahlehi J [23] it is
trite that the duty of the court dis-scrutinise an award for
reasonableness remains even unopposed review applications including
determining the presence of the defects envisaged in section
145 of
the LRA. The test for determining the reasonableness or
otherwise an arbitration award is set out in …”
This is
an example of the recognition of the said principal in the labour
court.