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[2017] ZALCJHB 237
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Tasima (Pty) Ltd v Road Traffic Management Corporation and Others (J890/2017) [2017] ZALCJHB 237 (5 June 2017)
REPUBLIC
OF SOUTH AFRICA
Not
reportable
Of
interest to other judges
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
C
ase
no: J 890/2017
In
the matter between:
TASIMA
(PTY) LTD
First applicant
and
ROAD
TRAFFIC MANAGEMENT CORPORATION
First respondent
DEPARTMENT
OF TRANSPORT
DIRECTOR
GENERAL:
DEPARTMENT
OF TRANSPORT
MINISTER
OF TRANSPORT
EMPLOYEES
LISTED IN ANNEXURE “A” TO THE
NOTICE OF MOTION
Second respondent
Third
respondent
Fourth
respondent
Fifth respondent
Delivered:
5 June 2016
RULING
ON LEAVE TO APPPEAL
STEENKAMP
J
Introduction
[1]
The first respondent (the RTMC) applies for leave to appeal against
the whole of my judgment and order of 25 May 2017. I ordered
that:
“
63.1 It is declared that, with
effect from 5 April 2017, the contracts of employment of the 5th to
84th respondents transferred
automatically from the applicant (Tasima
(Pty) Ltd) to the first respondent (the Road Traffic Management
Corporation) in accordance
with the provisions of section 197 of the
Labour Relations Act (Act 66 of 1995).
63.2 The RTMC is directed to pay the
5th to 84th respondents from 5 April 2017 to the date of the final
determination of the order
in subparagraph 1 above:
63.2.1 on a monthly basis on or before
the 25th of each month, the amounts set forth under the column headed
“Monthly CTC
excl 13th cheque, annual bonus, overtime, standby
allowance, birthday voucher and night shift allowance” as set
out in Annexure
“C” to Annexure “FM 11.6” to
the founding affidavit of Fannie Lynen Mahlangu; and
63.2.2 on an annual basis, any
additional amounts making up the column headed “Annual Total
CTC” as set forth in that
schedule.
63.3 The confidentiality regime set
out in paragraph 107 of the founding affidavit applies.
63.4 The RTMC is ordered to pay the
costs of this application, including the costs of two counsel, and
including the costs of 5
May 2017.”
Test
on appeal : the merits
[2]
Applications for leave to
appeal are now governed by s 17 of the Superior Courts Act.
[1]
Section 17(1)(a) provides that:
“
Leave
to appeal may only be given with a judge or judges concerned are of
the opinion that:
(i) the appeal would
have a reasonable prospect of success; or
(ii) there is some other
compelling reason why the appeal should be heard, including
conflicting judgements on the matter
under consideration.”
[3]
In this case, the matter
concerns the interpretation of s 197 of the Labour Relations Act.
[2]
It raises a novel argument about the application of the section to
matters involving public authorities. That in itself is a compelling
reason why leave to appeal should be granted.
Interim
relief : para 63.2 of the order
[4]
Given my view that leave to appeal should be granted, the question
arises whether the relief ordered in paragraph 63.2 of the
judgement
should operate as an interim order pending the date upon which any
appeal is finalised.
[5]
Section 18.3 of the Superior Court Act provides :
“
(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.”
[6]
The default position is that outlined in subsection (1), i.e. that
the operation and execution of the order is suspended pending
appeal,
unless this court under exceptional circumstances orders otherwise.
[7]
The RTMC argues that that subsection applies to the whole of the
judgement and order
a quo
, including the interim relief
ordered in paragraph 63.2, as Tasima has not brought an application
in terms of section 18(3).
[8]
It is so that Tasima has not brought a formal application under s
18(3). But the order in paragraph 63.2 is interim in nature.
And in
terms of s 18(2) “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.”
[9]
In its argument
a quo,
Tasima specifically asked for the
relief in paragraph 63.2 in order to provide interim protection to
the employees regardless of
any further steps taken by the RTMC. In
my debate with Mr
Franklin
he specifically confirmed that “the
date of the final determination of the order in subparagraph 1 above”
was intended
to include any appeals. Counsel for RTMC did not argue
that such an order could not be granted.
[10]
The interim relief sought was foreshadowed in Tasima’s founding
papers, when it said:
“
Tasima also prays for the
Tasima employees’ salaries to be paid by the RTMC with effect
from 5 April 2017 pending any final
determination,
including
appeals
, in relation to the section 197 dispute.”
[11]
In its answering affidavit, the RTMC did not raise a point that such
interim relief would be impermissible.
[12]
I understood the words “final
determination” to include any appeals. That is why I
specifically ascertained from Tasima’s
counsel that that was
what he had in mind. It is similar to the order made in
Auction
Alliance (Pty) Ltd v Minister of Police.
[3]
Conclusion
[13]
I am of the view that leave to appeal should be granted on the
merits. However, that will not include the whole of the judgement
and
order; paragraph 63.2 of the order is not appealable.
Order
Leave
to appeal is granted against the whole of the judgement and order of
25 May 2017, except for paragraph 63.2 of the order.
Costs of this
application are to be cost in the appeal.
_______________________
Anton
J Steenkamp
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANT
(Tasima):
A E Franklin
SC, J P V McNally SC and A W T Rowan
Instructed
by
Webber Wentzel.
FIRST
RESPONDENT (RTMC): A Redding SC and K Hopkins
Instructed
by
Dexter Selepe.
[1]
Act 10 of
2013.
[2]
Act 66 of
1995.
[3]
2014 JDR
2675 (WCC) par 54.