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[2017] ZALCJHB 6
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Wenum v Maquassi Hills Local Municipality (J1684/15) [2017] ZALCJHB 6; (2017) 38 ILJ 1213 (LC); [2017] 7 BLLR 736 (LC) (17 January 2017)
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not
reportable
Of
interest to other judges
C
ase
no: J 1684/15
In
the matter between:
CHARL WENUM
Applicant
and
MAQUASSI HILLS
LOCAL MUNICIPALITY
Respondent
Heard
:
13 December 2016
Delivered
:
17 January 2017
Summary:
Leave to execute pending petition to appeal
judgment reinstating applicant. Superior Courts Act s 18.
JUDGMENT
STEENKAMP
J
Introduction
[1]
This
is an application to execute a judgment pending a petition for leave
to appeal by the respondent, brought in terms of s 18
of the Superior
Courts Act.
[1]
[2]
In a judgment handed down on 15 June 2016,
Baloyi AJ ordered the Municipality (the respondent) to reinstate the
applicant, Mr Wenum,
in his position of Chief Financial Officer. The
Municipality applied for leave to appeal. It was refused. On 2
December 2016 the
Municipality petitioned the Labour Appeal Court for
leave to appeal. The applicant brought this application on 6
December. It was
heard on 13 December 2016.
Background facts
[3]
Wenum was dismissed. He brought an urgent
application in two parts to reinstate him. On 27 August 2015 Lagrange
J granted an interim
order ordering the Municipality to pay him
pending the return date. Whitcher J extended it to 4 December 2015.
On that day the
main relief was argued before Baloyi AJ. He only
handed down judgment on 15 June 2016. The Municipality stopped paying
Wenum. It
applied for leave to appeal on 2 July 2016. Wenum applied
for execution of the judgment pending that application. Lagrange J
heard
the application to execute on 21 July and dismissed it on 22
July 2016. Baloyi AJ dismissed the application for leave to appeal
on
4 December 2016, together with costs on a punitive scale. The
Municipality petitioned on 2 December 2016.
Evaluation / Analysis
[4]
Section 18 of the Superior Courts Act
states:
“
18.
Suspension of decision pending appeal
(1)
Subject to subsections (2) and (3), and unless the court under
exceptional circumstances orders
otherwise, the operation and
execution of a decision which is the subject of an application for
leave to appeal or of an appeal,
is suspended pending the decision of
the application or appeal.
(2)
Subject to subsection (3), unless the court under exceptional
circumstances orders otherwise,
the operation and execution of a
decision that is an interlocutory order not having the effect of a
final judgment, which is the
subject of an application for leave to
appeal or of an appeal, is not suspended pending the decision of the
application or appeal.
(3)
A court may only order otherwise as contemplated in subsection (1) or
(2), if the party who applied
to the court to order otherwise, in
addition proves on a balance of probabilities that he or she will
suffer irreparable harm if
the court does not so order and that the
other party will not suffer irreparable harm if the court so orders.
(4)
If a court orders otherwise, as contemplated in subsection (1)—
(i)
the court must immediately record its reasons for doing so;
(ii)
the aggrieved party has an automatic right of appeal to the next
highest court;
(iii)
the court hearing such an appeal must deal with it as a matter of
extreme urgency; and
(iv)
such order will be automatically suspended, pending the outcome of
such appeal.
(5)
For the purposes of subsections (1) and (2), a decision becomes the
subject of an application
for leave to appeal or of an appeal, as
soon as an application for leave to appeal or a notice of appeal is
lodged with the registrar
in terms of the rules.”
[5]
Before considering whether the applicant
has passed the hurdle set out in s 18(2), the Court needs to consider
two preliminary points
raised by the Municipality, viz urgency and a
claim of
res judicata.
Urgency
[6]
The Municipality argues that the applicant
has not demonstrated urgency. I disagree. It delivered its petition
after hours at 17:13
on Friday 2 December 2016. The applicant lodged
this application on Tuesday 6 December to be heard a week later, on
Tuesday 13
December. He acted with alacrity. And the nature of the
application is such that it is urgent. Notwithstanding the order
reinstating
him, and the Court refusing leave to appeal, his
reinstatement has been suspended. I am satisfied that the matter
needed to be
heard on an urgent basis.
Res judicata?
[7]
Mr
Makgato
,
for the Municipality, argued that the application should not be
heard, based on the principle of
res
judicata.
He argued that Lagrange J had
already, on 15 June 2016, ruled against execution. But that ruling
was made pending the application
for leave to appeal. Baloyi AJ
dismissed the application for leave to appeal on 4 November 2016.
This fresh application to execute
is brought pending the petition. It
does not arise from the same cause of action.
Exceptional
circumstances?
[8]
This
Court dealt with the application of s 18 of the Superior Courts Act a
few days before this application was heard. In
Luxor
Paints (Pty) Ltd v Lloyd
[2]
Van Niekerk J held that it applied to this Court. I agree, and align
myself with his reasoning:
‘
[9]
As at the date of the present hearing, the Labour Appeal Court had
not yet made a ruling in respect of the petition for leave
to appeal,
nor had it made any ruling in respect of the application for leave to
appeal filed in terms of s 18(4).
[10]
The first issue to be determined is the application of s 18 of the
Superior Courts Act to this Court. Section 18 regulates the
suspension of decisions pending appeal. In general terms, the
operation
and execution of a decision (other than a decision not
having the effect of a final judgment) is suspended pending the
outcome
of an application for leave to appeal or appeal (see s
18(1)). The court may order otherwise (see s 18(3)) if it is
established
on a balance of probabilities that the applicant will
suffer irreparable harm if the court does not so order, and that the
other
party will not suffer irreparable harm if the court so orders.
(See
Incubeta Holdings (Pty) Ltd &
another v Ellis & another
2014 (3)
SA 189
(GJ).) If the court orders that the operation or
execution of an order is not suspended, the court must record its
reasons
for doing so. The aggrieved party has an automatic right of
appeal to the next highest court, which must deal with the matter ‘as
a matter of extreme urgency’ (s 18 (4) (iii)).
[11]
Of particular importance in the present matter is s 18 (4) (iv),
which provides that pending the outcome of the urgent appeal, the
order to execute is automatically suspended, pending the outcome
of
the appeal. It follows that if s 18(4) is applicable, the order
granting the applicant leave to execute was automatically suspended
on 9 November 2016, when the notice of appeal was filed.
[12]
The applicant contends that the provisions of s 18(4) of the Superior
Courts Act do not apply to this court and in doing so, relies on the
judgment by Snyman AJ in
L’Oréal South Africa (Pty)
Ltd v Kilpatrick and another
(2015) 36
ILJ
256 (LC)). In
that judgment, the court held that the provisions of the Superior
Courts Act do not apply to this court, at least
not in relation to s
18 of that Act. Having said that, Snyman AJ accepted that ‘selected
provisions’ from the Superior
Courts Act may from time to time
be imported into or adopted by this court where these are
complementary with this Court’s
rules, provisions and processes
(at para 21).
[13]
What this conclusion ignores is the definition of ‘Superior
Court’ in s 1 of the Superior Courts Act. The definition
extends to the ‘Constitutional Court, the Supreme Court of
Appeal, the High Court and any other court of a status similar to the
High Court.’ Section 151 of the Labour Relations Act
establishes this court as a court of law and equity, and as a
superior court that has the authority, inherent powers and standing,
in relation to matters under its jurisdiction, equal to that of a
division of the High Court. There can be no question therefore
that
this court falls within the definition of a ‘Superior Court’
for the purposes of the Superior Courts Act.
The fact that this
court is established in terms of the Labour Relations Act and not the
Superior Courts Act, a state of affairs
to which Snyman AJ appeared
to attach some significance, is neither here nor there.
[14]
But it does not necessarily follow that the Superior Courts Act
always prevails. Section 2(3) of the Superior Courts Act reads as
follows:
The
provisions of this Act relating to Superior Courts other than the
Constitutional Court, the Supreme Court of Appeal or the High
Court
of South Africa, are complementary to any specific legislation
pertaining to such Courts, but in the event of a conflict
between
this Act and such legislation, such legislation must prevail.
[15]
What this subsection recognises is the existence of superior courts
(such as this court) that are established by other, specific
legislation, and the potential for conflict between that legislation
and the Superior Courts Act. But the scope of the exception that s
2(3) represents is limited by the existence and extent of any
conflict between the Superior Courts Act and the specific legislation
to which the section refers. If there is no conflict, it
follows that
the default position is that established by the Superior Courts Act.
[16]
As Snyman AJ observed, there is no specific provision in the Labour
Relations Act, (or the Rules of this Court or the Labour Appeal
Court) regulating the status of orders that are subject to an appeal
or application for leave to appeal. There is therefore no conflict
between the Labour Relations Act and the Superior Courts Act
in
relation to this matter. I share the concerns expressed by Lagrange J
in
Wenum v Maquassi Hills Local Municipality
(J 1684/15, 22
July 2016) where he said, at paragraph 9 of the judgment:
“
Having
regard to section 174 of the LRA and sections 2 (3) and 18 (1) and
(2) of the Superior Courts Act, I do not believe that
section 2 (3)
of the Superior Courts Act renders section 18 of that Act
inapplicable to the effect of leave to appeal been granted
by this
court, as there is no obvious conflict between s 174 of the LRA and s
18 of the Superior Courts Act. Insofar as the judgment
in L’Oréal
suggests that the Superior Courts Act does not apply to the Labour
Courts unless provisions are imported
in the exercise of the courts’
management of their processes and procedures, I believe that
proposition is stated too widely.”
[17]
In my view, (and contrary to what Snyman AJ held) the fact that
this
court has over the years ‘borrowed’ from other statutes
to address lacunae in its own Rules and in the Labour
Relations Act,
does not justify the conclusions either that the Superior Courts Act
does not apply to this court, or that this
court is at liberty to
import or adopt provisions of the Superior Courts Act on a selective
and ad hoc basis.
[18]
The interpretation adopted in
L’Oréal
flies in
the face of what is clearly a limited exception established by s 2(3)
of the Superior Courts Act to the effect that other
specific
legislation trumps only in the event of a conflict with that Act. It
is an interpretation that fails to resonate with
the plain meaning of
the words used in s 2(3) and, to use the analysis by Wallis JA in
Natal Joint Municipal Pension Fund v Edumeni Municipality
2012
(4) SA 593
(SCA) (at para 18), it is an interpretation that is likely
to lead to insensible or unbusiness-like results and which undermines
the express purpose of the Superior Courts Act. That Act gives effect
to the constitutional imperative of rationalising the structure,
composition and functioning of the courts and the creation of a
uniform framework for judicial management. That purpose would be
frustrated, if not undermined, should the Superior Courts Act be held
to be inapplicable to this court. Insensible and unbusiness-like
results would be inevitable should this court be empowered
selectively to decide, on an ad hoc basis, which of the provisions of
the Superior Courts Act it wishes to adopt and apply and which it
prefers to ignore. The constitutional imperative and statutory
purpose to which I have referred have as their touchstone
considerations of certainty.
[19]
While I appreciate that one should not lightly depart from a prior
judgment that is in point, in my view, the approach adopted in
L’Oréal
is incorrect and I decline to follow it.
[20]
That being so, in terms of s 18(4) of the Superior Courts Act, the
first respondent had an automatic right of appeal against the leave
to execute order, pending the outcome of any petition filed
in terms
of Rule 4 of the Labour Appeal Court’s Rules.’
[9]
Having
found that s 18 of the Superior Courts Act applies to this case, the
Court needs to consider whether the applicant has shown
that he will
suffer irreparable harm if the order to execute is not granted, as
contemplated by s 18(3). Put another way, has he
shown that
exceptional circumstances exist? That is the test posited by Van
Niekerk J in
Naidoo
[3]
:
‘
Turning
next to the application for leave to execute the judgment and order
pending appeal. This court is a superior court, and
subject to the
Superior Courts Act, 10 of 2013
.
Section 18
of that Act regulates the
circumstances under which a party may apply for an order that departs
from the ordinary consequence of
filing an application for leave to
appeal, i.e. that the operation and execution of the judgment and
order appealed against is
suspended. The approach established by
s 18
requires an applicant in an application for leave to execute to show
that the facts and circumstances of the particular application
are
exceptional and warrant a deviation from the normal rule. This has
been referred to as a ‘threshold factual test’
(see
Incubeta Holdings (Pty) Ltd and another
v Ellis and another
2014 (3) SA 189
(GJ)) and requires the applicant to show that the facts and
circumstances of its particular case are uncommon, unusual and\or out
of the ordinary to the extent that a departure from the ordinary rule
that an appeal suspends the operation of the judgement in
order
appealed against should not apply. Further, the applicant is required
to prove on a balance of probabilities that it will
suffer
irreparable harm should the order for leave to execute not be granted
pending the appeal. Finally, the applicant must prove
on a balance of
probabilities that the respondent in the application for leave to
execute will not suffer irreparable harm if leave
to execute is
granted pending appeal. (See
Incubeta
Holdings (supra
); and the unreported
judgment by Murphy J in
Coetzer and
ERB Technologies v Actom (Pty) Ltd
, A
269/2015).’
[10]
Not surprisingly, Mr
Makgato
argued that no exceptional circumstances exist in this case. Wenum is
simply deprived of an income in the interim; should the petition
fail, he will be reinstated retrospectively. And even if it succeeds,
the Labour Appeal Court may still find in his favour and
the same
consequences will follow. Any harm that he may suffer now is not
irreparable. And financial harm is not exceptional.
[11]
On the other hand, as Mr
Scholtz
argued, Wenum has a final order in his favour. Leave to appeal has
been refused. The harm he suffers is not only financial; he
also
suffers harm to his reputation and career for so long as the
Municipality refuses to reinstate him in terms of the judgment
of
Baloyi AJ. The Municipality, on the other hand, does not stand to
suffer irreparable harm: if it reinstates him in the interim,
it can
make use of his services, his skills and experience. It will have the
benefit of continuity. And even if it is successful
in its petition
and in a consequent appeal, it can recover the money paid to Wenum in
the interim.
[12]
On the evidence before me, the applicant
has exhausted his surplus funds. He faces bankruptcy. His family may
be destitute. It is
so that the harm he suffers is purely financial
--- something that our courts do not often consider to be
exceptional. But in this
case, the applicant is in the unusual
position that leave to appeal has already been refused. Baloyi AJ
expressed the view that
the Municipality had made out no case in its
application for leave to appeal and that it had “served only
the purpose of
delaying finalisation of this matter”, and that
it had no prospects of success on appeal. The LAC should not take
long to
pronounce on the petition. In the interim, the harm he
suffers outweighs that of the Municipality, that is simply called
upon to
pay him for the services he will render if he is reinstated
pending the petition. On balance, I am satisfied that it would be in
the interests of justice to rule that the reinstatement order should
be executed pending the consideration of the petition.
[13]
As
Van Niekerk J pointed out in
Harley
v Bacarac Trading 39 (Pty) Ltd:
[4]
‘
If
an applicant is able to demonstrate detrimental consequences that may
not be capable of being addressed in due course and if
an applicant
is able to demonstrate that he or she will suffer undue hardship if
the court were to refuse to come to his or her
assistance on an
urgent basis, I fail to appreciate why this court should not be
entitled to exercise a discretion and grant urgent
relief in
appropriate circumstances. Each case must of course be assessed
on its own merits.’
Conclusion
[14]
I am satisfied that the applicant has
discharged the onus, on a balance of probabilities, to show that he
should be granted the
relief sought in terms of
s 18(3)
of the
Superior Courts Act.
[15
]
With regard to costs, I deem it prudent in
law and fairness to rule that the costs of this application be costs
in the petition.
Order
[16]
I therefore make the following order:
16.1
The applicant is granted leave to execute
the judgment and order of Baloyi AJ under this case number, handed
down on 15 June 2016,
pending the respondent’s petition for
leave to appeal and any appeal that may follow should the appeal be
granted.
16.2
Costs of this application are to be costs
in the petition for leave to appeal.
_______________________
Steenkamp
J
APPEARANCES
APPLICANT:
W
Scholtz (attorney).
RESPONDENT:
M
C Makgato
Instructed
by Phambane Mokone Inc.
[1]
Act 10 of 2013.
[2]
[2016] LALCJHB 505 (9 December 2016).
[3]
Fidelity
Security Services v Naidoo
[2016]
ZALCJHB 70 at para 6.
[4]
[2008] ZALCJHB 78 para 8.