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[2017] ZALCJHB 259
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Majavu v Lesedi Local Municipality (J990/17) [2017] ZALCJHB 259 (4 July 2017)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not Reportable
Case
No: J990/17
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: 4 July 2017
Summary:
Application for leave to appeal – no proper case for leave to
appeal made out – non compliance with Practice
Manual -
application dismissed
JUDGMENT
SNYMAN, AJ
Introduction
[1]
On 5
May 2017, I dismissed the applicant’s urgent application to
interdict disciplinary proceedings to be conducted against
him at the
first respondent, with costs on the scale as between attorney and own
client.
[2]
On 29
May 2017, the applicant filed an application for leave to appeal,
only in respect of the costs order.
[3]
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
[4]
Further in
terms
of clause 15.2 of the Practice Manual, the applicant in a leave to
appeal application is required to file written submissions
in support
of the application for leave to appeal within 10 (ten) days of filing
the application for leave to appeal. No such submissions
were ever
forthcoming from the applicant, despite also being directed to do so
on 29 May 2017 by my associate.
[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]
Considering
that a Judge is entitled, in terms of the Practice Manual, to decide
a leave to appeal application in chambers based
on written
submissions, the failure to file written submissions in these
instances may be viewed to be similar to a party failing
to appear in
Court to argue the case, and all the consequences associated with it,
which may include dismissing the application
on this basis alone. But
at the very least, this failure by the applicant leaves the leave to
appeal application unmotivated.
[7]
In my
view, the applicant’s failure to file written submissions
despite the clear provisions of the Practice Manual and despite
being
called on to do so, should lead to the dismissal of the application
for leave to appeal for this reason alone.
[8]
The
above being said, and in any event, this Court exercises a discretion
where it comes to awarding costs. Interference with
such a
costs award on appeal would not be competent, unless it can be shown
that such discretion has been improperly exercised
in a manner that
is not judicial. In
Janse
van Rensburg v City of Tshwane Metropolitan Municipality
[2]
the Court held:
‘
A
ppeals
against cost orders should not be prosecuted too readily, but are
permitted in certain circumstances. The approach of our
courts where
an
appeal is directed only against the costs order is spelt out in
Cronje
v Pelser
1967 (2)
SA 589
(A) at 592H–593A where it was held:
“
Hierdie
Hof sal nie ingryp in die Hof
a
quo
se
beslissing oor koste nie tensy dit geskied het sonder ’n
judisiële uitoefening van diskresie. Die toets is . . .
of die beslissing gebaseer is op gronde waarop ’n redelike mens
tot so ’n besluit kon geraak het. . . .
’n
Beslissing oor koste is ‘n kwessie van diskresie in elke
besondere geval.”
’
The
applicant has simply made out no case and have provided no grounds
upon which the discretion I exercised in awarding costs would
be
assailable.
[9]
The
applicant therefore has provided no basis for leave to appeal being
granted, and the leave to appeal application must be dismissed.
[10]
As to
costs, the respondents have not opposed the application. I
shall therefore make no order as to costs.
Order
[11]
In
the premises, I make the following order:
1. The applicant’s application
for leave to appeal is dismissed.
_____________________
S Snyman
Acting Judge of the Labour Court
Appearances:
For
the Applicant:
Wakaba
& Partners Inc Attorneys
For
the Respondents:
Tshiqi
Zebediela Inc Attorneys
[1]
(2015) 36 ILJ 2653
(LC) at para 9. See also
MJRM
Transport Services CC v Commission for Conciliation, Mediation and
Arbitration and Others
(2017)
38 ILJ 414 (LC) at paras 12 – 13;
Tadyn
Trading CC t/a Tadyn Consulting Services v Steiner and Others
(2014)
35 ILJ 1672 (LC)
at
para 11.
[2]
[2013] 4 All SA
141
(GNP) at para 36.