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[2017] ZALCJHB 74
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Tshililo and Others v City of Johannesburg and Others (J2453/16) [2017] ZALCJHB 74 (8 March 2017)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not Reportable
case
no: j 2453/16
In the matter between:
TIMSON
TSHILILO
First Applicant
NOMVUALA
HADI
Second Applicant
THEBEITSHILE
MOKOTO
Third Applicant
NKETHENI
MUTHAVHI
Fourth Applicant
VUKILE
MLUNGWANA
Fifth Applicant
NONCEBA
MBILINI
Sixth Applicant
VUYANI
SINGONZO
Seventh Applicant
PAUL
TLHABANE
Eighth Applicant
MEISI
SIKALEDI
Ninth Applicant
and
CITY OF JOHANNESBURG AND OTHERS
Respondents
Heard:
Considered in Chambers
Delivered:
8 March 2017
Summary:
Leave to appeal – no proper grounds made out –
application for leave to appeal dismissed
JUDGMENT
SNYMAN,
AJ
Introduction
[1]
This matter concerned an application
initially brought by the current cited respondent, the City of
Johannesburg, against several
respondents, which included the current
applicants for leave to appeal. At the heart of the case was a
dispute between two
factions within SAMWU, one of the respondents, as
to who was the legitimately elected officials and office bearers of
SAMWU.
Following a proposal I had made, all parties agreed that
the two factions would each argue their respective cases as to why
the
members of each of these factions should be considered to be the
legitimately elected and appointed current office bearers of SAMWU.
Such argument was then presented.
[2]
In a written judgment handed down on 14
December 2016, I found in favour of what I called the ‘Molalenyane
faction’
in the judgment, and against the “Tshililo
faction’, the latter being all the current applicants for leave
to appeal.
On
21 December 2016, the applicants filed an application for leave to
appeal, followed by written submissions in the application
for leave
to appeal on 23 January 2017. The respondents did not engage in the
leave to appeal application and to date of considering
of this
application in March 2017, have filed no written submissions.
[3]
Further, Clause 15.2 of the Practice Manual
provides that an application for leave to appeal will be determined
by a Judge in chambers,
unless the Judge directs otherwise. I see no
reason to direct otherwise and will therefore determine the
applicant’s leave
to appeal application in chambers.
Non
compliance with the Practice Manual
[4]
In terms of clause 15.2 of the Practice
manual, the applicant in a leave to appeal application, had to file
the required written
submissions within 10 days. The leave to
appeal application was filed on 21 December 2016, but the applicants’
written
submissions were only filed on 23 January 2017.
Considering that the written submissions had to have been filed by 9
January
2017, the written submissions are thus some two weeks’
late. There is no application for condonation for such late
filing. The applicants have thus not complied with the Practice
Manual.
[5]
In
Ralo
v Transnet Port Terminals and Others
[1]
the Court said
‘…
.
The Practice Manual contains a series of directives, which the Judge
President is entitled to issue. In essence, the manual sets Gout
what is expected of practitioners so as to meet the imperatives of
respect for the court as an institution, and the expeditious
resolution of labour disputes (see clause 1.3). While the manual
acknowledges the need for flexibility in its application (see
clause
1.2), its provisions are not cast in the form of a guideline, to be
adhered to or ignored by parties at their convenience.
’
[6]
The failure to file written submissions in
the leave to appeal application in time, without applying for
condonation for such late
filing, could result in dismissing the
application for leave to appeal on this basis alone. But for the sake
of completeness, I
will nonetheless consider the merits of the
applicants’ application for leave to appeal.
The
merits of the application
[7]
In
deciding whether to grant leave to appeal to the Labour Appeal Court,
the Labour Court must determine whether there is a reasonable
prospect that another Court may come to a different conclusion to
that of the Court
a
quo
.
[2]
In
Seathlolo
and Others v Chemical Energy Paper Printing Wood and Allied Workers
Union and Others
[3]
the Court recently considered the above test for leave to appeal and
held:
‘
The
traditional formulation of the test that is applicable in an
application such as the present requires the court to determine
whether there is a reasonable prospect that another court may come to
a different conclusion to that reached in the judgment that
is sought
to be taken on appeal. … Further, this is not a test to be
applied lightly — the Labour Appeal Court has
recently had
occasion to observe that this court ought to be cautious when leave
to appeal is granted, as should the Labour Appeal
Court when
petitions are granted. The statutory imperative of the expeditious
resolution of labour disputes necessarily requires
that appeals be
limited to those matters in which there is a reasonable prospect that
the factual matrix could receive a different
treatment or where there
is some legitimate dispute on the law …
’
[8]
From the outset, I must say that I find the
applicants’ criticism in the written argument filed, of being
deprived of an opportunity
to further address the merits of their
case, astounding. As I have recorded in my judgment, there were a
number of options given
to the parties on how to have this matter
resolved. After some debate and consideration, all the parties
indicated that they were
happy to argue the merits of the matter on
the basis of the affidavits as it stood before me. To now cry foul
because of a lack
of further opportunity to answer is simply
unacceptable.
[9]
I decided this matter principally on the
basis of what turned out to be irrefutable evidence, and in
particular the evidence relating
to the outcome of the prior legal
proceedings brought by the current applicants for leave to appeal.
In the end, much of
what actually happed was not in dispute.
Each of the factions, in short, actually did what they said they did
as recorded
in the affidavits. The simple question was which conduct
was legitimate, and which was not. I remain convinced that there can
be
no doubt that the applicants’ conduct was not legitimate,
and I do not consider that there is any reasonable prospect of
another court coming to a different conclusion.
[10]
The applicants, in the application for
leave to appeal, have to some extent changed tack. When arguing
this matter before
me, they contended that their actions were
legitimate and those of the other faction were not. Now it is argued
that the actions
by both factions are not legitimate. To change
approach at this late stage, and after judgment has been handed down,
is not palatable.
The applicants must stand or fall by the approach
they adopted when this matter was originally argued. It was an all or
nothing
approach by each faction, and the applicants came up second.
They must live with that decision. But in any event, the applicants
have advanced no compelling reasons as to how another court could
reasonably decide otherwise where it comes to my findings that
the
actions of the Molalenyane faction were indeed legitimate. The
applicants have not made out a proper case for leave to appeal
in
this regard.
[11]
In this matter, there are no complex
principles of law. It was in principle a determination of
fact. In the end, and
considering the sets of affidavits by
both factions, fully supported by comprehensive annexures, made it
clear to me that there
were no material factual disputes that needed
to be resolved. The documents speak for themselves. In
particular, there
can be no legitimate answers by the applicants to
the various Court orders forming part of the pleadings. I do
not believe
that there is any reasonable prospect that another Court
may decide that preferring the conduct of the Molalenyane faction is
incorrect.
[12]
There
is one remaining consideration. As I have said in my original
judgment, this is not a situation that should be permitted
to linger.
Whilst the issue of who is the legitimate office bearers of SAMWU
remains open, the City of Johannesburg and the members
of SAMWU are
being prejudiced. A leave to appeal application with little
merit must not serve to further compound these problems,
especially
in the interest of expedition. The following
dictum
from the judgment in
Martin
& East (Pty) Ltd v National Union of Mineworkers and Others
[4]
is apposite:
‘…
The
Labour Relations Act was designed to ensure an expeditious resolution
of industrial disputes. This means that courts, particularly
courts
in the position of the court a quo, need to be cautious when leave to
appeal is granted.'
[13]
I thus conclude that the applicants have
shown no reasonable prospect that another Court
may come to a different conclusion. This considered, as coupled
with the non
compliance with the Practice Manual, convinces me that
the application for leave to appeal falls to be dismissed.
[14]
Because the respondents did not engage in
the leave to appeal application, I shall make no order as to costs.
Order
[15]
In the premises, I make the following
order:
1.
The applicants’ application for leave to appeal is dismissed.
_____________________
S
Snyman
Acting
Judge of the Labour Court
Appearances:
For the
Applicants:
M C Mudau Attorneys
For
the Respondents:
Moodie and Robertson Attorneys; and
Maenetja Attorneys
[1]
(2015) 36 ILJ 2653 (LC) at para 9. See also
Tadyn
Trading CC t/a Tadyn Consulting Services v Steiner and Others
(2014)
35 ILJ 1672 (LC) at para 11.
[2]
See
Karbochem
Sasolburg (A Division of Sentrachem Ltd) v Kriel and Others
(1999)
20 ILJ 2889 (LC)
at 2890D.
See also
National
Education Health and Allied Workers Union v University of Cape Town
and Others
(2003) 24 ILJ
95 (CC)
; Ngcobo v Tente
Casters (Pty) Ltd
(2002)
23 ILJ 1442 (LC) ;
Volkswagen
SA (Pty) Ltd v Brand NO and Others
(2001) 22 ILJ 993 (LC);
Singh
and Others v Mondi Paper
(2000) 21 ILJ 966 (LC);
Glaxo
Welcome SA (Pty) Ltd v Mashaba and Others
(2000) 21 ILJ 1114 (LC).
[3]
(2016) 37 ILJ 1485 (LC) at para 3.
[4]
(2014)
35
ILJ
2399 (LAC)
at 2405J-2406A