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[2017] ZALCJHB 279
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Labe v Legal Aid South Africa and Others (JS895/16) [2017] ZALCJHB 279 (2 August 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case no: JS 895/16
In the matter between:
TILLY
LABE
Applicant
And
LEGAL
AID SOUTH AFRICA
First Respondent
BRAIN
NAIR
Second Respondent
PATRICK
HUNDERMARK
Third Respondent
FLAVIA
ISOLA
Fourth Respondent
AYSHA
ISMAIL
Fifth Respondent
THE
CURRENT BOARD MEMBERS OF THE
LEGAL
AID SOUTH AFRICA
Sixth Respondent
Considered
in chambers
Delivered:
02 August 2017
RULING:
LEAVE TO APPEAL
TLHOTLHALEMAJE,
J.
Introduction
and background:
[1]
This matter came before me on 12 May 2017 for a determination of a
special plea raised in regard to prescription and other points
in
limine
. On 20 June 2017, I delivered a judgment wherein an order
was issued in the following terms:
“…
i.
The first
respondent’s preliminary points in respect of the citation of
the second to sixth respondents is upheld, and it
is declared that
they are not party to these proceedings.
ii.
The first
respondent’s special plea is upheld and it is declared that the
applicant’s claim of an alleged automatically
unfair dismissal
has prescribed in accordance with the provisions of the Prescription
Act.
iii.
The costs
associated with the preliminary and special as raised by the first
respondent are to be costs in the cause.
iv.
The parties may
approach the Registrar of this Court to set the matter down for
trial.”
[2]
The applicant on 27 June 2017
filed an application for leave to appeal against that judgment and
order. This was followed
by her written submissions in support of the
application for leave to appeal in terms of Rule 30(3A)
[1]
of the Rules of this Court read with clause 15.2
[2]
of the Practice Manual 2013 on 11 July 2017.
[3]
The respondents therefore had to file their opposition to the
application for leave to appeal on or before 18 July 2017.
They however did so on 26 July 2017. Based on
correspondence between the applicant’s and the respondents’
attorneys of record, I am prepared to accept that the former granted
the latter an indulgence to file the opposition to the application
until
26 July 2017.
Leave
to appeal:
[2]
The applicant in her notice of application for leave to appeal
contends that the Court erred in the following respect:
[2.1] By
finding that the second to sixth respondents lacked substantial
interest in this matter as
she had cited them in their
nomine
officio
and not in their personal capacities.
[2.2]
By finding that the sixth
respondent lacked authority to take disciplinary measures against the
second to fifth respondents
in terms of the provisions of section 4
of the Legal Aid South Africa Act.
[3]
She contends that her claim in the main was not premised on the
Legal Aid South African Act but rather on section 158 of
the Labour
Relation Act.
[4]
[2.3] By
determining the merits of the claim without the benefit of the
evidence to be lead at Trial.
[2.4] By
accepting the version of the respondents that she might have personal
issues with the second
to fifth respondent for not appointing her to
the position to which she had applied for.
[2.5] By
failing to consider ‘the evidence’ in its entirety as led
during the preliminary
proceedings.
[2.6] By
finding that she was wrong to conclude that all issues canvassed at
the arbitration proceedings
fall under the scope and jurisdiction of
this Court.
[2.7] By
considering material that was not placed before the Court,
particularly in determining the
issue of prescription.
[2.8] By
not considering her prayer to amend her papers in the event that the
Court did not find in
her favour in respect of the citation point.
[2.9]
By finding that she failed to
comply with the provisions of Rule (6)(1)(b)
[5]
of the Rules of this Court.
Evaluation:
[3]
The respondents’
submissions in opposition to the application are dealt with within
the context of this evaluation. As to
whether an application for
leave to appeal should be granted is dependent on a variety of
factors. The first is that it is trite
that the applicant must
demonstrate that that there are reasonable prospects that the appeal
would succeed.
[6]
As was postulated in Supreme Court of Appeal in
S
v Smith
[7]
this implies that the applicant must convince this court on proper
grounds that she has prospects of succeed on appeal and that
those
prospects are not remote but have realistic chance of succeeding.
There must, in other words, be a sound, rational basis
for the
conclusion that there are prospects of success an appeal
[8]
.
[4]
A further consideration in such
applications as directed by the Labour Appeal Court is that caution
must be exercised by judges
of this Court when seized with
applications for leave to appeal, and that they must ensure that
matters that end up in the Appeal
Court must be limited to those in
which there is a reasonable prospect that the facts could be treated
differently and/or where
there is some legitimate dispute on the
law
[9]
.
[5]
I have carefully considered the grounds upon which leave to appeal is
sought, and the submissions made by both parties in support
of and in
opposition to the application. I have further reflected upon my
judgement and order, and hold the firm view that the
issues raised by
the applicant in this application and grounds upon which leave to
appeal is sought were adequately dealt with
in that judgment.
[6]
Other than confusing the
concept of evidence and submissions as applicable in motion
proceedings, it is further apparent
as
correctly pointed out on behalf of the respondents that the applicant
has completely misread and misunderstood my judgment. This
is evident
from paragraph 10 of her
written submission, where she contended that the Court erred in
concluding that the prevailing jurisprudence
on the applicability of
the Prescription Act
[10]
is the decision of the Labour Appeal Court in
Fawu
obo Gaushubele & Others v Pieman Pantry (Pty) Ltd
[11]
.
The applicant contends that the correct approach is to follow the
decision of the Constitutional Court in
Myathaza
v Johannesburg Metropolitan Bus services (SOC) t/a Metrobus &
Others
[12]
.
It is apparent that the applicant has not had proper regard to my
judgment, specifically at paragraphs 36 to 43, and the reference
therein made to the Constitutional Court judgment in
Maria
Jane Mogaila v Coca Cola Fortune (PTY) Limited
.
[13]
The Constitutional Court in
Mogaila
held the following:
Because
of the parity of votes in Myathaza, in which none of the judgments
secured a majority, no binding basis of decision (ratio)
emerges from
the Court’s decision.
But,
on either approach, that of Jafta J and Zondo J, or that of Froneman
J, Ms Mogaila is entitled to an order declaring that the
arbitration
award ordering her reinstatement has not prescribed. She is entitled
to secure its certification under section 143(3)
of the LRA, and its
enforcement under section 143(1).
[My underlining]
[7]
Should the applicant have
considered my judgment diligently, it would have been apparent as to
the reason the decision in
Fawu
obo Gaushubele & Others
[14]
was preferred. The current
legal position is that there is no biding decision of the
Constitutional Court in respect of the applicability
of the
Prescription Act in matters governed by the Labour Relations Act. The
judgments in
Myathaza
[15]
are indeed
of persuasive effect but adopting either of the two approaches could
lead to legal uncertainty and that is not permissible.
It is for that
reason that I had preferred the approach in
Fawu
obo Gaushubele & Others
in
my judgment
.
[8]
In consideration of the above factors, it is found that there is no
sound or rational basis for the conclusion that there are
prospects
that the applicant’s leave to appeal shall succeed, or that
there are reasonable prospects that the Labour Appeal
Court would
come to a different conclusion to that reached in my judgment.
Furthermore, it is my view that this application for
leave to appeal
was ill-considered and the requirements of law and fairness dictate
that the respondents should not be burdened
with its costs.
Accordingly, the following order is made;
Order:
1.
The application for leave to appeal is dismissed with costs.
_____________________
E.
Tlhotlhalemaje
Judge
of the Labour Court of South Africa
[1]
Sub-rule (3A) provides
:
Unless the judge from whom leave to appeal is sought otherwise
directs, the parties' respective submissions in respect of the
application for leave to appeal must be-
(a)
in writing; and
(b)
delivered on or before a date fixed by the judge.
[2]
Clause 15.2 provides: Within 10 days of the filing of the
application for leave to appeal, the party seeking leave must file
its submissions in terms of Rule 30(3A)
and
the party opposing the leave must file its submissions five days
thereafter.
An application
for leave to appeal will be decided by the judge in Chambers on the
basis of the submissions filed in terms of
Rule 30 (3A), unless the
judge directs that the application be heard in open court.
[3]
Act 39 of 2014
[4]
Act 66 of 1995
[5]
Rule 6 Referrals
Statement
of claim
(1)
A document initiating proceedings, known as a 'statement of claim',
may follow
the
form set out in Form 2 and must-
(a) have a heading
containing the following information:
…
(b)
have a substantive part containing the following information:
(i)
The names, description and addresses of the parties;
(ii) a clear
and concise statement of the material facts, in chronological
order, on which the party relies,
which statement must be sufficiently
particular to enable any opposing
party to reply to the document;
(iii) a
clear and concise statement of the legal issues that arise from the
material facts, which statement must
be sufficiently particular to
enable any opposing party to reply to
the document; and
(iv)
the relief sought;
[6]
Section 17
of the
Superior Courts Act 10 of 2013
provides:
Leave
to appeal
(1)
Leave to appeal may only be given where the judge or judges
concerned are of the opinion that—
(a)
(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
judgments on the matter under
consideration;
(b) the decision sought on appeal
does not fall within the ambit of
section 16(2)(a)
; and
(c) where the decision sought to be
appealed does not dispose of all the issues in the case, the appeal
would lead to a just and
prompt resolution of the real issues
between the parties.
[7]
2012 (1)
SACR 567
(SCA) (15 March 2011)
[8]
At para 7
[9]
See also
Khena
v Passenger Rail Agency of South Africa (J2767/16) [2017] ZALCJHB 32
(1 February 2017)
at para 4;
Martin
and East (Pty) Ltd v NUM (2014) 35 ILJ 2399 (LAC
)
[10]
Act 68 of 1969
[11]
[2016] ZALAC 46
;
[2016] 12 BLLR 1175
(LAC); (2017) 38 ILJ 132 (LAC)
[12]
[2016] ZACC 49
; (2017) 38 ILJ 527 (CC); [2017] 3 BLLR 213 (CC); 2017
(4) BCLR 473 (CC)
[13]
[2017] 5 BLLR 439
(CC); (2017) 38 ILJ 1273 (CC);
2017 (7) BCLR 839
(CC)
[14]
Supra
at
para 7
[15]
Supra
at para 7