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[2016] ZALCJHB 41
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Masalesa v Khuphulanani Training Institute and Another (J2594/15) [2016] ZALCJHB 41 (12 January 2016)
IN THE LABOUR COURT
OF SOUTH AFRICA
HELD AT JOHANNESBURG
CASE NO
: J2594/15
DATE
: 2016-01-12
In the matter between
LESIBA
MASALESA
Applicant
and
KHUPHULANANI TRAINING
INSTITUTE
First Respondent
DELL SA
Second Respondent
EX
TEMPORE
JUDGMENT
STEENKAMP, J
:
This application was
set down by the applicant, Mr Lesiba David Masalesa, on an
urgent basis, to be heard during the recess
at 10:00 today, 12
January 2016. Before hearing Mr
Desai
,
for the first respondent, I placed on record that the applicant, Mr
Masalesa was in attendance at 10:00 this morning; that I indicated
to
him and to Mr Desai that the matter would not be heard before the tea
adjournment; and that if they wished to, they need not
stay in court
but they had to be back at 11:30.
By 11:30, the the
court was still in session. The court eventually took a lunch
adjournment at 13:30 and reconvened at 15:00.
At 13:30 I
indicated again that this matter would be heard at 15:00.
During the lunch adjournment, both Mr Desai’s
client and
the court associate attempted to get hold of Mr Masalesa.
When the matter was called again at 15:00, Mr Masalesa
was not
in attendance. In these circumstances, Mr
Desai
asked me to deal with the merits of the matter and I will do so.
The order that Mr
Masalesa seeks is simply one for the payment of the amount of R3 500,
which he alleges is the salary due
to him by the first respondent,
Khuphulalanani Training Institute. He alleges that he is
employed by the first respondent
and he asks the court “to
confirm the employment status of the applicant with befitting salary
similar to that of financial
manager.” The first
respondent, on very short notice, has set out in detail the substance
for its counter-argument
that the applicant is and was not employed
by it but that the applicant acts as a labour consultant to it.
In fact, the applicant
purports to be the acting General Secretary of
a trade union named WOCOFO, or the Workers Consultative Forum.
On the evidence
before me and applying the well-known rule set out in
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
(1984) 3 SA 63
(A) at 634, I must find that the applicant is and was
not employed by the first respondent and that he only provided
consultation
services to it as an independent contractor. The
application must fail for that reason alone.
With regard to costs,
there are a number of alarming features to this application.
The first is that the application was brought
on an extremely urgent
basis during the recess in circumstances where the only relief sought
is, firstly, for the payment of a
salary; and secondly, for a
far-reaching declarator that the Court would have been unlikely to
determine in motion proceedings.
As Mr
Desai
correctly pointed out, one is constrained to find that the applicant
brought this application for relief on an urgent basis in
order to
steal a march on the first respondent in the hope that it would not
file the comprehensive answering papers that it did.
In this
regard, he referred to the dictum of His Lordship Wepener, J,
with whom I associate myself, in
In Re
Several matters on the urgent court roll
(2013) 1 SA 549
(GSJ) at paragraph [17]:
“
An abuse of
the process has developed – in all likelihood in the hope that
the respondent will not be able to file opposing
affidavits in time –
in order to steal a march upon such respondent…”
The other alarming
feature is that the applicant has cited the second respondent, Dell
South Africa, an entity that, on his own
admission, has no interest
in this matter; and what is more, he asks for costs against that
entity. That, as well, is a clear
abuse of process.
Taking into account the requirements of law and fairness, as I am
enjoined to do in terms of section 162
of Labour Relations Act, I
agree with Mr
Desai
that this is a matter where costs should follow the result. I
do however baulk at the suggestion that I should order punitive
costs.
- - - - - - -
- - - -
ORDER
The application is
dismissed with costs.
_______________________
STEENKAMP
J
For First
respondent:
M Desai
Instucted
by
Mwandlele attorneys.
CERTIFICATE
OF VERACITY
I,
the undersigned, hereby certify that,
in
as far as it is audible
,
the aforegoing is a
VERBATIM
transcription from the soundtrack of proceedings, as was ordered to
be transcribed by iAfrica Transcriptions and which had
been recorded
by Digital Court Recording Services by means of digital recording
equipment.
In
the matter between:
LESEBA
MASALESA
Applicant
and
KHUPHULANANI TRAINING
INSTITUTE
First Respondent
DELL SA
Second Respondent
Case No
J2594/15
J33 No / Client Ref
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RECORDED
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JOHANNESBURG
Court
:
LABOUR COURT
Court
Nr
:
Stenographer
:
TRIAL
DATES
:
12 JANUARY 2016
ORDER
TO TRANSCRIBE
:
Transcribe JUDGMENT
TRANSCRIBER
:
AG VAN STADEN
SOUNDTRACK
:
Date and Time received:
29 JANUARY 2016
DATE
COMPLETED
:
1 FEBRUARY 2016
J406-ENVELOPE
INFORMATION
:
Not supplied
PLEASE
NOTE
:
1.
Where no clear annotations are furnished, names are transcribed
phonetically.
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