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[2017] ZALCJHB 79
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Maseko v Commission for Conciliation, Mediation and Arbitration and Others (JR1282/10) [2017] ZALCJHB 79 (8 March 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
no: JR 1282/10
In
the matter between:
ANDILE
AARON
MASEKO
Applicant
and
COMMISSION
FOR CONCILIATION,
MEDIATION
AND
ARBITRATION
First Respondent
BHEKINHLANHLA
STANLEY MTHETHWA N.O.
Second Respondent
SASOL
INFRACHEM (PTY)
LTD
Third Respondent
Heard:
In chambers
Delivered:
08 March 2017
Summary:
Application for leave to appeal decision on rule 11 application. Test
for granting leave to appeal restated.
Application failed as the
standard for declaring a litigant vexatious is demanding and an order
to that effect is not easily made.
RULING
ON LEAVE TO APPEAL
EVERETT,
AJ
Introduction
[1]
This is an application for leave to appeal part of an order delivered
on 6 May 2016. The application appears to be
made timeously
but it was brought to my attention several months later. The parts of
the order in which appeal is noted are:
“
2.
The Rule 11 application, in the context of this application, is
dismissed.
3.
There is no order as to costs.”
Background
[2]
The third respondent had applied in terms of rule 11 of the Rules of
this Court to have the respondent declared a vexatious
litigant,
alternatively an order preventing Mr Andile Aaron Maseko (Mr
Maseko) from proceeding with litigation against the
company until a
costs order granted against him has been secured or paid.
[3]
The rule 11 application arises within an application for review of a
condonation ruling, launched by Mr Maseko, of a condonation
ruling issued by Mr Bhekinhlanhla Mthethwa a panelist of
the National Bargaining Council for the Chemical Industry.
[4]
The basis for the application for leave to appeal is essentially
that:
4.1
I failed, so it is claimed, to take into account the history of the
litigation between the
parties in dismissing the rule 11 application
and construed it narrowly in the context of the review application
when it was much
broader; and
4.2
I failed to consider and pronounce on the alternative claim that the
applicant be ordered
to pay all outstanding legal fees before
continuing with litigation or, alternatively, provide security for
costs in the amount
of R181 661.00.
[7]
It is not necessary to summarise the history of the litigation
between the parties which is captured in the written judgment.
The
essence of my decision was that the rule 11 application to declare
Mr Maseko a vexatious litigator had to fail because,
in order to
succeed,
all
the litigation he had instituted would
have had to be without merit and I had not found the application for
review of the condonation
ruling to be without merit.
[8]
The following is an extract of my judgment at paras 17 to 19:
“
Rule 11
application
[17]
The parties addressed me on the Rule 11 application. For it to
succeed, the current review application
and numerous others in the
history of the litigation between the two parties would need to be
found to be vexatious. Two cases
at the Labour Court and a series of
appeals or petitions - even to the highest court in the land - is
not, on the face of it, vexatious
and the test to declare a person a
vexatious litigant is much more demanding.
[18]
It is impossible for the court to make a finding that Mr Maseko
is a vexatious litigant
at this stage given that the application for
review of the condonation is not dismissed because it lacks merit. On
the contrary,
the prospects of success in the review application seem
reasonably strong since there is case law requiring a commissioner or
bargaining
counsel panelist to hear an application for condonation
and not merely determine condonation on the basis of written
submissions.
Furthermore, the Labour Court judgment, per Judge
Basson, could be read as giving Mr Maseko hope that, if he
claimed discrimination
or an automatically unfair dismissal, he might
ultimately succeed in challenging his dismissal. It was not the same
dispute that
had been decided originally and his efforts to frame a
new cause of action were not unreasonable or vexatious.
[19]
The rule 11 application cannot be granted in the context of this
review application as the review
application is not, on the face of
it, without merit. I should add, though, that this is not to say that
a similar application
might not be successful at some stage in the
future.”
The test for granting
leave to appeal
[9]
The test to be applied in an application for leave to appeal is that
referred to in section 17 of the Superior Courts Act.
[1]
Section 17(1)(a) provides that leave to appeal “
may
only be given where the judge or judges concerned are of the opinion
that the appeal would have a reasonable prospect of success”
or there is some other compelling reason why the appeal should be
heard. In this case, there is no issue of conflicting judgments
and
the question is essentially whether another judge may have come to a
different conclusion.
[10]
The Labour Appeal Court has recently noted that this Court ought to
be cautious in granting leave to appeal. This
is in line with a key
purpose of the Labour Relations Act which is to promote expeditious
resolution of labour disputes. Accordingly
appeals should 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.
[2]
[11]
Applying the test of whether another judge may have come to a
different conclusion, I am of the view that this
application must
fail. My primary reason for this view is that the standard for
declaring a litigant vexatious is demanding and
an order to that
effect is not easily made. The alternative claim that the applicant
be ordered to pay all outstanding legal fees
before continuing with
litigation or, alternatively, provide security for costs in the
amount of R181 661.00., if granted, would
be overly harsh given that
the applicant in the main matter is a dismissed individual without
the means to provide security and,
in essence, an order to this
effect would deny him the right to challenge the refusal to grant
condonation for late referral of
the automatically unfair dismissal
dispute. The consequence is that he would be denied the opportunity
to challenge the dismissal
itself.
Order
[12]
I therefore rule as follows:
1.
The application for leave to appeal is
dismissed.
2.
There is no order as to costs.
_________________
Winnie
Everett
Acting
Judge of the Labour Court of South Africa
[1]
Act 10 of 2013.
[2]
See the judgment by Davis JA in
Martin
& East (Pty) Ltd v NUM
(2014) 35
ILJ
2399 (LAC) at 2406; and also
Oasys
Innovations (Pty) Ltd t/a GL Event Oasys v Henning & Another
[2015] ZALCCT 65 at para 8-9.