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[2015] ZALCJHB 352
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Mpumalanga Economic Growth Agency v Mthembu (J991/2015) [2015] ZALCJHB 352 (14 October 2015)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG.
JUDGMENT
Not Reportable
Case no: J991/2015
In
the matter between:
MPUMALANGA ECONOMIC
GROWTH AGENCY
Applicant
and
MTHEMBU QINISO
CHRISTOCENTRIC
Respondent
Decided
in Chambers.
Delivered
on: 14
October 2015
RULING
- LEAVE TO APPEAL
TLHOTLHALEMAJE,
AJ
Introduction:
[1]
The
Applicant (Respondent in the urgent application) seeks leave to
appeal against my judgment in terms of which I had concluded
that the
application was indeed urgent; that the agreement of employment
between the parties was extant, and that the Applicant
should abide
by that agreement. The Applicant was further ordered to pay the costs
of that application. The application for leave
to appeal is opposed.
[2]
The
test to be applied in applications of this nature is whether
there
are reasonable prospects that another court might come to a different
conclusion to that of the Court a
quo
[1]
.
In
S v
Smith
[2]
Plasket AJA observed that:
‘
What the test of reasonable
prospects of success postulates is a dispassionate decision, based on
the facts and the law, that a
court of appeal could reasonably arrive
at a conclusion different to that of the trial court. In order to
succeed, therefore, the
appellant must convince this court on proper
grounds that he has prospects of success on appeal and that those
prospects are not
remote, but have a realistic chance of succeeding.
More is required to be established than that there is a mere
possibility of
success, that the case is arguable on appeal or that
the case cannot be categorised as hopeless. There must, in other
words, be
a sound, rational basis for the conclusion that there are
prospects of success on appeal.’
The
grounds of appeal and evaluation:
[3]
The Respondent seeks leave to appeal on the following main grounds,
viz
;
3.1
That the court erred in treating the matter as urgent;
3.2
That the court erred when it ordered the Applicant to abide by the
terms of the agreement
on an urgent basis;
3.3
That the court erred in not granting the Applicant leave to file an
answering affidavit
as prayed for in its answering affidavit;
3.4
That the court should have found that financial considerations do not
establish urgency;
3.5
That the court erred in not finding that the employment agreement
concluded between the
parties had been properly and validly
rescinded.
[4]
In opposing the application for leave to appeal, the Respondent
submitted
inter alia
that not all judgments and orders are
appealable, and that in terms of section 173 (1) (a) of the Labour
Relations Act, the Labour
Appeal Court has exclusive jurisdiction;
“
to hear and determine all
appeals against the final judgments and the final orders of the
Labour Court”.
[5]
It is not my intention to deal with all the grounds upon which leave
to appeal is
sought in the light of the conclusions to be reached in
regards to the appealability of findings on urgency. It is trite that
a
ruling as to urgency is procedural in nature and not appealable
[3]
.
Thus a ruling as to whether a matter is urgent or not does not
finally dispose of the merits of the dispute between the parties.
Such an order as correctly pointed out on behalf of the Respondent is
not definitive of the rights of any party nor does it dispose
of a
substantial portion of the relief claim. On this ground alone, it
follows that the application for leave to appeal should
be refused.
[6]
The issue whether the Applicant should have been granted leave to
file an answering
affidavit as prayed for in its answering affidavit
was also dealt with in the judgment. It was correctly pointed out on
behalf
of the Respondent and as also stated in the judgment that in
filing an affidavit challenging only the issue of urgency, the
Applicant
accepted the risk that a finding in the Respondent’s
favour on urgency would result in the merits of the matter being
determined
on her version only. I am further in agreement with the
Respondent that by seeking an opportunity to file a comprehensive
answering
affidavit, the Applicant effectively sought a postponement
of the matter, and this could not have been countenanced in the light
of the urgency accorded to the application. Further in the light of
the period granted to the Applicant to file its answering affidavit
and its choice to only oppose the matter on the grounds of urgency,
it is found that there is no merit on this grounds relied upon.
[7]
The issue whether financial hardship can be a basis for granting
urgency was also
dealt with sufficiently in the main judgment. The
Applicant’s contention was that the court should have aligned
itself with
the majority view as set out in the authorities referred
to and dealt with, and should have concluded that the Respondent was
not
able to demonstrate that detrimental consequences arising from
the decision to rescind the contract could not be addressed in due
course. In this regard, it was contended that in the light of
conflicting decisions to which the court lends itself, it would be
in
the interests of justice to have the matter finally resolved by the
Labour Appeal Court.
[7]
In the light of the conclusions in regards to the appealability of
the findings on
urgency, it is not necessary to deal with the basis
upon which that finding was made, other than to state that in
De
Beer v The Minister of Safety & Security Services/ Police and
Another
[4]
,
Coppin AJA (as he then was) in addressing the issue of financial
hardship as a basis for granting urgency stated that;
“…
..The grounds for
‘semi-urgency’ which were primarily relied upon by the
appellant, was that he was not receiving a
salary and had no other
source of income, his savings were almost exhausted and that he had
ongoing financial commitments that
he could not, or had difficulty in
honouring
.
The loss of salary and benefits, with the concomitant financial
hardship, are not regarded as
sufficient
(my emphasis) to establish urgency. In any case, any urgency that may
have existed appears to have been self-created, either by
the
appellant or his legal representatives, by unreasonable delays and a
failure to institute proceedings in the appropriate forum
in time, or
at all.”
[5]
(Authorities omitted)
[8]
It is my view that reference to ‘
sufficient’
in the above
dictum
cannot be read to imply that urgency would not be granted in every
circumstances where reliance is placed on financial hardship.
I do
not understand the
dictum
to imply that financial hardship will as a rule of thumb be rejected
as a basis of according a matter urgency. Furthermore, what
was said
in
De
Beer
should be understood in line with the principles set out in
South
African Informal Traders Forum and Others v City of Johannesburg and
Others; South African National Traders Retail Association
v City of
Johannesburg and Others
[6]
,
where
the Constitutional Court held that the ability of people to earn
money and support themselves and their families is an important
component of the right to human dignity. Without it they faced
“humiliation and degradation”
[7]
.
[9]
In the light of the above, and more specifically in the light of the
findings made in regards
to the appealability of the conclusions on
the issue of urgency, there is no sound or rational basis for a
conclusion to be made
that there are prospects of success on appeal.
I have further had regards to considerations of law and fairness, and
it is concluded
that costs are not warranted in this case.
Order:
i.
The
application for leave to appeal against the judgment handed down on
17 June 2015 is dismissed.
ii.
There is no
order as to costs.
_________________
Tlhotlhalemaje, AJ
Acting
Judge of the Labour Court of South Africa.
[1]
National Union
of Metal Workers of South Africa v Jumbo Products CC
[1996] ZASCA 87
;
1996 (4) SA 735
(A) at 742B
[2]
2012 (1) SACR 567
(SCA) at para [7]
[3]
See
Ball
v Bambalela Bolts (Pty) Ltd and Another
[2013] 9 BLLR 843
(LAC) at para [32] where the LAC held that;
“…
.In
the circumstances, I need not say much on the point, save for
restating that, generally, rulings on urgency, by themselves,
are
not appealable, because they are not final and definitive of the
rights of the parties”
[4]
(2013) 34 ILJ 3083
(LAC)
[5]
At para 32
[6]
2014 (6) BCLR 726
(CC)
[7]
At para [31]. See
also at para [36] where the Constitutional Court continued to state
that:
“
We
have already said much that shows that the application for interim
relief was manifestly urgent. The City had evicted the applicants
from their trading areas or stalls and refused to allow them back,
even though they had been verified and re registered at the
behest
of the City. Although the City admittedly failed to follow the
processes in the Businesses Act, it forcibly evicted
the applicant
traders. Its conduct spawned immediate and acute hardship that
left the applicant traders destitute.
It was never disputed
that they were unable to feed or house themselves or their
families. The situation would have only
worsened if it
persisted”.