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[2017] ZALCJHB 214
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Majavu v Lesedi Local Municipality and Others (J712/12) [2017] ZALCJHB 214 (31 May 2017)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not
Reportable
Case
no: J 712 / 12
In
the matter between:
SANDI
MAJAVU
Applicant
and
LESEDI
LOCAL MUNICIPALITY
First
Respondent
ISAAC
RAMPEDI N.O
Second
Respondent
THE
SPEAKER: LESEDI LOCAL MUNICIPAL
COUNCIL
Third Respondent
Heard:
Considered in Chambers
Delivered:
31 May 2017
Summary:
Application for leave to appeal – no proper case for leave to
appeal made out – application
dismissed with costs
JUDGMENT
SNYMAN,
AJ
Introduction
[1]
The current applicant for leave to appeal
was the applicant in an urgent application to interdict disciplinary
proceedings to be
conducted against him at the first respondent.
[2]
The matter was argued before me on 4 May
2017, and in an order granted on the same date, I dismissed the
application with costs,
with written reasons for the order to be
handed down on 10 May 2017. Written reasons were then indeed
handed down on 10 May
2017.
[3]
However, and already on 5 May 2017, the
applicant filed an application for leave to appeal. The applicant
then filed two sets of
written submissions in support of the
application for leave to appeal, one being filed on 5 May 2017 and
the second on 23 May 2017
after the written reasons had been handed
down.
[4]
The respondents opposed the application for
leave to appeal, and filed their written submissions on 24 May 2017.
[5]
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 why
the application for leave to appeal needs to be dealt with in open
Court, and
I shall therefore determine the applicant’s leave to
appeal application in chambers.
Leave
to appeal
[6]
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
.
[1]
[7]
Recently,
and in
Seathlolo
and Others v Chemical Energy Paper Printing Wood and Allied Workers
Union and Others
[2]
the Court again 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]
As a general proposition, the applicant’s
grounds for seeking leave to appeal are in essence nothing more but
the applicant
disagreeing with the conclusions I came to, especially
where it came to the relevant provisions of law. To merely disagree
with
my conclusions does not establish a reasonable prospect of
another Court coming to a different conclusion as envisaged by the
test
in considering an application for leave to appeal. The applicant
has simply made out no proper case in this regard.
[9]
The
applicant also takes issue with the natter being dismissed on the
basis of a lack of urgency. According to the applicant, the
matter
cannot be dismissed on the basis of a want of urgency. There are two
insurmountable obstacles in the way of this ground
of leave to appeal
advanced by the applicant. The first is that is entirely competent
and within the discretion of a presiding
Judge to dismiss a matter
where it is not urgent, if circumstances so dictate.
[3]
Considering the view I took on the issue of res judicata, the
following dictum from the judgment in
Jiba
v Minister: Department of Justice and Constitutional Development and
Others
[4]
is apposite, where the Court said:
‘
In
view of my findings on the other relief sought by the applicant,
little purpose would be served in striking the matter from the
roll.
I intend therefore to dismiss the application.
’
In
casu
, the circumstances certainly
dictated that the matter not be struck form the roll, but be
dismissed. This is because I specifically
considered the issue of
res
judicata
, and dismissed the application
on this basis as well. I can simply see no reasonable prospect of
another Court coming to a different
conclusion in this respect.
[10]
On the issue of
res
judicata per se
, the applicant simply
advances the same arguments as advanced before. Just as I was
unimpressed with these arguments before, I
remain unconvinced that
there is any reasonable prospect that another Court could some to a
different conclusion in this regard.
The applicant has advanced no
sustainable argument to convince me, based on the detailed reasoning
I provided in the written judgment
of 10 May 2017, that such judgment
could be wrong, and that there is a reasonable prospect of another
Court deciding otherwise.
The authorities are clear, and the
applicant seems completely unable to grasp the import thereof.
[11]
The applicant has even gone so far as to
make accusations of bias, and in this respect, has chosen to quote
individual words out
of my judgment, entirely out of context, and
then sought to attach a meaning to these words which were simply
unfounded. It is
my view that on the merits of the matter, properly
considered, the applicant’s application before me was actually
an attempt
to circumvent the consequences of the earlier identical
matter having been dismissed by Van Niekerk J. How this conclusion
can
be seen as bias is beyond comprehension. There is no reasonable
prospect of another Court coming to a different conclusion in this
respect.
[12]
The applicant also takes issue with the
conclusion I came to, where it comes to what is contained in the
founding affidavit about
deductions from his salary and the conduct
of the acting municipal manager. These statements were in my view
gratuitous, could
not add to the relief sought, were not supported by
any other evidence than the mere
ipse
dixit
of the applicant, and designed
simply to provide emotive back up for the applicant’s case.
The fact that I saw the
case in this way cannot make my conclusion
biased. In essence, the applicant is saying that because I disagreed
with him on the
merits of his allegations of unlawfulness and the
like, I am biased. The suggestion is unsustainable, and there exists
no reasonable
prospect of another Court coming to a different
conclusion.
[13]
The applicant has failed to address several
of the pertinent legal principles I dealt with in my judgment,
especially those relating
to urgency and
res
judicata
. In my view, there is no
reasonable prospect of another Court, in light of these clear legal
principles, coming to a conclusion
different to the one I came to.
[14]
I thus conclude that the applicant, overall,
has
shown no reasonable prospect that another Court could come to a
different conclusion, and the leave to appeal application must
fail.
[15]
As to costs, the respondents opposed the
matter and asked for costs. On the same basis as ventilated in
my written reasons
of 10 May 2017, I still consider that a costs
award against the applicant remains justified.
Order
[16]
In the premises, I make the following
order:
1. The
applicant’s application for leave to appeal is dismissed with
costs.
_____________________
S
Snyman
Acting
Judge of the Labour Court
Appearances:
For
the Applicant:
Wakaba & Partners Inc Attorneys
For
the Respondents:
Tshiqi
Zebediela Inc Attorneys
[1]
See
National
Education Health and Allied Workers Union v University of Cape Town
and Others
(2003)
24 ILJ 95 (CC)
;
Karbochem
Sasolburg (A Division of Sentrachem Ltd) v Kriel and Others
(1999)
20 ILJ 2889 (LC)
;
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).
[2]
(2016) 37
ILJ 1485 (LC)
at
para 3.
[3]
See
National
Union of Metalworkers of SA and Others v Bumatech Calcium Aluminates
(2016) 37
ILJ 2862 (LC);
SA
Post Office Ltd v Moloi NO and Others
(2012) 33 ILJ 715 (LC);
Sekwati
v Masiya and Others
(2011) 32 ILJ 2219 (LC).
[4]
(2010) 31
ILJ 112 (LC) at para 21.