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[2017] ZALCJHB 277
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Mabuti v Boxing South Africa (JS638/2015) [2017] ZALCJHB 277 (27 July 2017)
THE
LABOUR COURT OF SOUTH AFRICA
JOHANNESBURG
Not
reportable
Case
no: JS 638/2015
In
the matter between:
MABUTI
MALINGO
Applicant
and
BOXING
SOUTH AFRICA
First Respondent
MASILO
MAAKE
Second Respondent
Decided
: In Chambers
Judgment:
27 July 2017
Summary:
Application for leave to appeal. No prospects of success. Application
dismissed with costs.
JUDGMENT:
APPLICATION FOR LEAVE TO APPEAL
PRINSLOO,
J
[1]
This is an application for leave to appeal
against a judgment of this Court handed down on 29 November 2016 in
terms of which the
Court upheld the Respondents’ special pleas
and dismissed t
he Applicant’s
case for lack of jurisdiction.
[2]
The application for leave to
appeal was filed late and the Applicant sought condonation for the
late filing thereof. The condonation
application is opposed.
[3]
Although I am not satisfied
that a proper case has been made out for the late filing of the
application for leave to appeal, I reluctantly
grant condonation and
I will deal with the merits of the application for leave to appeal.
[4]
The Applicant has set out his grounds for leave
to appeal and specified where this Court has erred. I have considered
the grounds
for appeal raised and the submissions made to support the
application for leave to appeal as well as the submissions made in
opposition
thereof and I do not intend to repeat it in detail. I deal
with the main submissions herein below.
Test
for leave to appeal
[5]
It is trite
that in order to be entitled to leave to appeal, an applicant in the
application for leave to appeal must satisfy this
Court that it has
reasonable prospects of success on appeal. In the matter of
S
v Smith
[1]
the Supreme Court of Appeal held as follows:
”
What the test of reasonable
prospects of success postulates is a dispassionate decision, based on
the facts and the law that a court
of appeal could reasonable arrive
at a conclusion different to that of the trial court. In order
to succeed, therefore, the
appellant must convince this court on
proper grounds that he has prospects of succeed on appeal and that
those prospects are not
remote but have realistic chance of
succeeding. More is required to be established than that there
is a mere possibility
of success, that the case is arguable on appeal
or that the case cannot be categorised as hopeless. There must,
in other
words, be a sound, rational basis for the conclusion that
there are prospects of success an appeal”
[6]
However,
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. In
Seatlholo
and Others v Chemical Energy Paper Printing Wood and Allied Workers
Union and Others
[2]
this Court confirmed the fact that the test applicable in
applications for leave to appeal is more stringent and held as
follows:
“
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. As the respondents observe, the use of the
word “would” in s17(1)(a)(i) are indicative
of a raising
of the threshold since previously, all that was required for the
applicant to demonstrate was that there was a reasonable
prospect
that another court
might
come to a different conclusion (see
Daantjie
Community and others v Crocodile Valley Citrus Company (Pty) Ltd and
another
(75/2008)
[2015] ZALCC 7
(28
July 2015). 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 (See the judgment by Davis JA in
Martin
and East (Pty) Ltd v NUM
(2014) 35
ILJ
2399 (LAC), and also
Kruger v S
2014 (1) SACR 369
(SCA) and the ruling by Steenkamp J in
Oasys
Innovations (Pty) Ltd v Henning and another
(C 536/15, 6 November 2015)”.
[7]
In
deciding this application for leave to appeal I am also guided by the
dicta
of
the Supreme Court of Appeal where it held in
Dexgroup
(Pty) Ltd v Trustco Group
[3]
that
:
”
The
need to obtain leave to appeal is a valuable tool in ensuring that
scarce judicial resources are not spent on appeals that lack
merit.
It should in this case have been deployed by refusing leave to
appeal.”
Grounds
for leave to appeal
[8]
Firstly, the Applicant submitted that the Court
erred in finding that the Applicant did not file supplementary heads
of argument.
[9]
It is common cause that the
parties were afforded an opportunity to file the supplementary heads
of argument by 4 November 2016,
which date was extended to 11
November 2016 to accommodate Mr Memani’s request for more time.
I specifically requested the
parties to file the heads of argument
directly with my Associate as the Court file was with me and by 11
November 2016 the Respondents
complied and filed supplementary heads
of argument but no supplementary heads of argument were filed by the
Applicant.
[10]
In his application for leave
to appeal the Applicant attached a copy of heads of argument that
bears a Court stamp of 11 November
2016.
[11]
I have now considered those
supplementary heads of argument filed by Mr Memani and it is evident
to me that Mr Memani persisted
with an argument similar to the one he
presented in his argument in Court. Mr Memani persisted with the
argument that a certificate
of non-resolution is administrative
action which is binding until and unless it is set aside, that the
certificate gave the Applicant
the legal entitlement to refer his
dispute to this Court, that the certificate is legally binding on all
parties, including the
Labour Court and that it binds this Court to
preside over the matter as if the matter was correctly referred to
it. There were
no new submissions made on these issues in the
supplementary heads of argument.
[12]
In respect of condonation, Mr
Memani submitted that although the Court has the power to grant
condonation, it can only do so in
cases where it has jurisdiction in
the first place and as this Court does not have the jurisdiction to
hear the main application,
it does not have the power to condone or
refuse the late referral, even if the Applicant had applied for
condonation.
[13]
In respect of costs Mr Memani
submitted that as this Court lacks jurisdiction it has no power to
order costs and for that reason
no order as to costs should be made.
Alternatively, Mr Memani submitted that both parties should have
sought the setting aside
of the incorrect certificate and as they
both failed to do so, they are equally guilty and therefore each
party should pay its
own costs.
[14]
It is evident that the same
issues that were raised in argument in Court and which I considered,
were raised in the supplementary
heads of argument. The supplementary
heads of argument did not raise new arguments but rather highlighted
Mr Memani’s lack
of understanding and his inability to
interpret and apply the principles as set out in case law.
[15]
No case was made out in the
supplementary heads of argument, to the contrary, it displayed Mr
Memani’s persistent lack of
understanding and there is no
prospect whatsoever that another Court will be persuaded to come to a
different conclusion based
on the arguments presented by Mr Memani in
his supplementary heads of argument.
[16]
There is no merit in this
ground for leave to appeal.
[17]
Secondly, the Applicant’s
ground for leave to appeal is that I was only seized with the
question of costs and it was not competent
to dismiss the matter. In
his submissions Mr Memani submitted that this Court was only to
determine who ought to pay the costs
and it was not to determine the
merits.
[18]
This ground for leave to
appeal once again displays a concerning lack of understanding and it
is without merit.
[19]
On 23 October 2015 the
Applicant served his statement of case and on 6 November 2015 the
Respondents filed a statement of defence
wherein they raised two
special pleas. The first special plea is that the statement of case
was filed outside the 90-day period
and the Applicant has not applied
for condonation and the second special plea is that the Applicant
failed to make out a case for
an automatically unfair dismissal based
on unfair discrimination. The Respondents’ case was that the
Applicant’s dispute
relates to dismissal for misconduct and
that it falls under the jurisdiction of the CCMA and not this Court.
[20]
On 30 November 2015 the
parties held a pre-trial conference and the pre-trial minute was
filed on 12 January 2016. In the pre-trial
minute the two special
pleas were raised as preliminary points. The special pleas were
enrolled for hearing on 26 February 2016,
on which date the Court
issued an order that the points
in
limine
(the special
pleas) were to be heard on the first day of the trial and the
Registrar was directed to enroll the matter for a two-day
trial.
[21]
The matter was enrolled for
trial on 27 October 2016 and as per the Court order of 26 February
2016 the special pleas were to be
dealt with on the first day of the
trial.
[22]
On 26 October 2016 and a day
before the commencement of the trial Mr Memani filed heads of
argument wherein it was conceded that
the CCMA arbitrator
‘misclassified’ the nature of the dispute and that the
dispute should have been referred to the
CCMA. Mr Memani sought an
order from this Court referring the dispute to the CCMA and for each
party to bear its own costs. The
relief so sought was opposed and
this Court had to deal with the special pleas.
[23]
It is wrong to understand or
to submit that this Court was only to determine costs or that it
decided the merits of the case. The
special pleas raised by the
Respondents had to be considered and were indeed considered and
decided.
[24]
Thirdly, the Applicant stated
that Mr Memani is deprived of his Constitutionally enshrined right
not to be deprived of his property
when this Court ordered that he
was not entitled to charge a fee for the heads of argument without
giving him a hearing.
[25]
I made an order that Mr
Memani was not entitled to any fees in respect of the heads of
argument he drafted and submitted on 26 October
2016 as the stance
taken by Mr Memani was ill considered in view of judgments by this
Court and the Labour Appeal Court and it
did not assist the
Applicant’s case at all. I was of the view that the Applicant
cannot be expected to pay for heads of argument
that were of a poor
quality, that made submissions not supported by established
principles and did not advance the Applicant’s
case at all.
[26]
In
Early
Bird Farm (Pty) Ltd v Food and Allied Workers Union and others
[4]
the
Labour Appeal Court held that:
“
Before
concluding this judgment, there is one further matter that we wish to
deal with. In this appeal the respondents' attorney
was required to
file heads of argument succinctly setting out the points to be argued
at the hearing of the appeal. A document
purporting to be heads of
argument was timeously filed on behalf of the respondents. However,
it was of such poor quality that
it can hardly be described as heads
of argument. This court could not derive any assistance from that
document nor was the attorney
helpful to the court at the hearing of
the appeal. Properly prepared heads of argument play an important
role in the adjudication
of a matter - especially in an appeal court.
Useful heads of argument cannot be prepared unless the person
preparing them has taken
the trouble to study the record and has done
such research on the legal issues raised by the matter or appeal as
may be necessary.
Where heads of argument are drawn without the
necessary understanding of the facts or the evidence in the record
and/or without
doing the necessary research on the legal issues that
arise in the appeal, such heads - and it is very easy to recognize
this in
heads of argument - are bound to be of no assistance to the
court hearing the appeal. That kind of conduct on the part of a
practitioner
is unacceptable. A practitioner should not accept
instructions or a brief in a matter if he does not have the time to
do justice
to a client's case. It is inexcusable for a practitioner
to file heads of argument the contents of which bear no relation to
the
issues raised.
In this case the document purporting
to be heads of argument filed by the respondents' attorney was
totally unacceptable. The fault
lies solely with the practitioner
concerned and not with the respondents.
………
Accordingly,
as a mark of its disapproval for this type of conduct, this court
will make an order precluding the respondents' attorney
from charging
fees in connection with the heads of argument as well as for his
appearance in this court”.
[27]
In
Minister
of Safety
and
Security
v Mashego and others
[5]
it
was held that
“
It’s
is not acceptable that practitioners should merely send up heads
which are not helpful, which do not cite authorities
and which
suggest hurriedness of preparation. Counsel draw heads for the
purpose of assisting the court. Whilst, in the end, the
court does
its own research, and seeks to satisfy itself that the authorities
referred to actually say what counsel say they say,
it goes without
saying that in a case where counsel have worked hard and produced
material that shows that they have researched
the topic of
contestation, the courts become hugely indebted to the practitioners
when they have to give their reasoned judgments”.
[28]
In casu
the
heads of argument prepared by Mr Memani indicated that he has no
understanding of the issues and has not properly researched
the
topics he addressed. The heads of argument were of no assistance to
this Court and there is no prospect that the Labour Appeal
Court
would come to a different finding.
[29]
Be that as it may, if
the Applicant is satisfied with the heads of argument Mr Memani has
filed on his behalf, he is free to pay
Mr Memani for that and it is
not necessary to burden the Labour Appeal Court with this issue.
[30]
Fourthly, the
Applicant’s case is that this Court erred in not finding that
the certificate of outcome is administrative action
which is binding
until it is set aside, that the certificate of outcome precluded the
Applicant to refer his dispute to any other
forum and it compelled
the Respondents to participate in proceedings in the Labour Court.
[31]
I
have in my judgment fully dealt with the status of a certificate of
outcome and the Labour Appeal Court judgment of
National
Union of Metalworkers of SA and others v Driveline Technologies (Pty)
Ltd
[6]
and
I do not intend to repeat it here. There is no prospect that another
Court would find that the certificate of outcome is administrative
action which is binding until it is set aside and that the
certificate of outcome precluded the Applicant from referring his
dispute
to any other forum. There is no merit in this ground for
leave to appeal.
[32]
The
Applicant further made contradictory submissions. On the one hand it
submitted that this Court erred in not referring the matter
to the
CCMA in terms of section 158(2) of the Labour Relations Act
[7]
(LRA), on the other hand he submitted that the Labour Court lacked
jurisdiction over the dispute and lacked the power to exercise
any
power connected to the dispute between the parties. These grounds for
appeal show a lack of understanding and are without merit.
[33]
Finally the Applicant attacks my decision to
award costs on a punitive scale.
[34]
There is no merit in this ground for appeal.
Costs should be considered
against the provisions of section 162 of the LRA and according to the
requirements of the law and fairness.
The requirement of law has been
interpreted to mean that the costs would follow the result and this
Court has a very wide discretion
in awarding costs.
[35]
The Labour
Appeal Court recently held in
KM
Lawrence v Mutual and Federal (Pty) Ltd and Another
[8]
held with the
authority of
Protea
Assurance Co Ltd v Matinise
[9]
;
Minister
of Prisons and another v Jongilanga
[10]
that:
“
[35] The
general approach to be adopted by a court of appeal when considering
an appeal against costs is trite. The award of
costs and the scale
thereof is a matter within the discretion of the court making the
order.
[11]
The
appeal court will not easily interfere with the exercise of that
discretion. It can only interfere where the discretion was
exercised
on a wrong principle or was capriciously made.
[36]
It is trite that this Court has a discretion in
awarding costs. I have invited the parties to make submissions on the
issue of costs
and I considered those and I exercised my discretion
to award costs as I did, based on the facts and merits before me.
[37]
Applying the relevant principles and considering
the submissions made, I am not persuaded that the Applicant has
reasonable prospects
of success on appeal or that there is any
reasonable prospect that another court will come to a different
result.
[38]
This application is without
merit and scarce judicial resources should not be spent on it.
Order
[39]
I therefore make the following order:
1.
The application for leave to appeal is dismissed with costs.
_________________
Connie
Prinsloo
Judge
of the Labour Court of South Africa
[1]
2010 (1) SACR at 576 (SCA). See also
Zweni
v Minister of Law and Order
1993(1) SA 523 (A).
[2]
(2016) 37 ILJ 1485 (LC)
[3]
Unreported
judgment of the Supreme Court of Appeal (687/12)
[2013] ZASCA 120
(20 September 2013)
[4]
(2004)
25 ILJ 2135 (LAC)
para
50.
[5]
(2003)
24 ILJ 1690 (LC)
[6]
(2000) 21 ILJ 142 (LAC).
[7]
ACT 66 OF 1995.
[8]
(
Lawrence
v Mutual and Federal (Pty) Ltd
,
Unreported case number JA 77/2014, handed down on 15 September 2016.
[9]
1978
(1) SA 963
(A)
at 976H
[10]
1985
(3) SA 117
(A)
at 124B