About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2015
>>
[2015] ZALCJHB 291
|
|
Septoo v City of Johannesburg (JS 458/09) [2015] ZALCJHB 291 (8 September 2015)
THE LABOUR COURT OF
SOUTH AFRICA,
HELD IN JOHANNESBURG
CASE NO: JS 458/09
DATE: 08 SEPTEMBER 2015
In the matter between:
ELLENISE
SEPTOO
................................................................................................................
Applicant
And
CITY OF
JOHANNESBURG
...............................................................................................
Respondent
JUDGMENT ON APPLICATION FOR LEAVE TO
APPEAL
LAGRANGE, J
[1] At the close of the applicant’s
case in this matter an order of absolution from the instance was
sought by the respondent,
which the court granted. The applicant now
applies for leave to appeal against that judgment. The applicant’s
application
for leave to appeal was late and she has sought
condonation for this. The condonation application is not opposed. In
the absence
of any material prejudice occasioned by the late filing
of the application, condonation should be granted.
[2] The applicant had sued the
respondent for specific performance of an initial employment contract
entered into in early June
2008. Her statement of case also included
the usual residual prayer for ‘further and/or alternative
relief’.
[3] At the commencement of proceedings,
applicant’s counsel submitted that the contract on which the
applicant relied had
been cancelled. Counsel for the respondent
confirmed that the case was simply a case in which the applicant
sought specific performance
of the contract and was not seeking
damages. Under cross-examination, the applicant confirmed in her
evidence that the first contract
had been cancelled. No leave to
amend her statement of case was brought during the proceedings
despite respondent’s counsel
also emphasizing that her claim
was confined to a claim for specific performance.
[4] In my judgment I concluded, inter
alia, that the applicant’s own claim that the contract on which
the claim of specific
performance is based has been cancelled was
logically incompatible with a claim for such relief. I also found
that a claim for
further and/or alternative relief was not sufficient
for her to pursue an alternative claim of damages premised on the
cancellation
of the contract, when this had never been specifically
pleaded.
[5] The applicant contends in effect
that this conclusion entailed a finding that she had waived her right
to pursue a claim for
damages and because waiver is a matter that the
respondent had to prove, the onus fell on it to establish this
through evidence
which was not done and absolution should not have
been granted. The respondent argues that waiver does not arise: the
issue is
that the applicant failed to establish a prima facie case
for specific performance because she failed to establish the
existence
of a binding contract on account of her own contentions and
that of her counsel to the effect that the contract she relied on had
been cancelled.
[6] At the hearing of the interlocutory
application for absolution, the applicant argued that she was still
entitled to pursue a
claim for damages arising from the cancelled
contract. She did not argue that the Court should not construe the
concession of her
counsel which she confirmed under cross examination
as an acknowledgment that the contract had been terminated and
therefore could
not be enforced. In my recollection, the contention
which she now advances that the Court was effectively deciding
whether or not
she had waived her right to enforce the contract was
not raised in argument. As I understand it, the applicant is now
saying the
Court ought to have realised that waiver was the issue
rather than a failure to prove an essential element of her claim.
[7] Although I am very sceptical that
the applicant can reframe the matter in this way, and though I
believe the reasons for the
judgment given at the time were correct
in relation to the arguments presented, it might be possible that
another Court could have
seen the matter as entailing a waiver and
accordingly leave to appeal should be granted.
Order
[8] The applicant’s late filing
of her application for leave to appeal is condoned.
[9] The application of leave to appeal
is granted.
[10] Costs shall be costs in the
appeal.
R LAGRANGE, J
Judge of the Labour Court
(In chambers)
8 September 2015