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[2018] ZALCJHB 8
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Sekhute and Others v Ekhuruleni Housing Company SOC and Another; In re: Sebola and Others v Ekhuruleni Housing Company SOC (J1862/17) [2018] ZALCJHB 8 (24 January 2018)
Of
interest to other judges
THE LABOUR COURT OF
SOUTH AFRICA,
HELD AT JOHANNESBURG
Case No: J 1862/17
In
the matter between:
BRENDA SEKHUTE
First Applicant
KGABO SEBOLA
Second Applicant
TEBOHO MOFOKENG
Third Applicant
and
EKHURULENI HOUSING
COMPANY
SOC
Respondent
BRENDA SEKHUTE
First Applicant
In re:
KGABO SEBOLA
Second Applicant
TEBOHO MOFOKENG
Third Applicant
MOLOKO BAHOLO
Fourth Applicant
MACSEAN FAVER
Fifth Applicant
PORTIA MOKHELE
Sixth Applicant
RAPAPA MAMOEPI
Seventh Applicant
and
EKHURULENI HOUSING
COMPANY
SOC
Respondent
Delivered
:
24 January 2018
Summary
(application for leave to appeal –
grounds of appeal grossly misrepresenting clear findings
of the court
– unprofessional to advance such grounds - leave to
appeal granted on point of law – costs refused
for raising
disingenuous grounds of appeal)
JUDGMENT
ON APPLICATION FOR LEAVE TO APPEAL
LAGRANGE
J
Background
[1]
This is an application for leave to appeal against the judgement
handed down on 5 September 2017 in this matter. The application
is
brought only by the first and second applicants in the original
urgent application.
[2]
Without repeating the main grounds of appeal, I will address each one
of them briefly below.
[3]
Firstly, the applicants claim the court did not decide whether the
application was urgent and accordingly should rather have
struck it
off the roll. This ground is patently absurd as it is obvious both
from the first paragraph of the judgement and the
nature of the order
dismissing the application that the matter was heard as one of
urgency.
[4]
Secondly, the applicants claim the court erred in making a cost award
against them because it disregarded their efforts to resolve
the
matter internally. It is apparent that the applicants fail to
appreciate that their refusal to accept that they were liable
to
refund moneys they were obviously not entitled to and to launch the
application under those circumstances was more than sufficient
reason
to award costs against them, irrespective of whether they had tried
to resolve it internally beforehand.
[5]
Thirdly, the applicants now claim that the court failed to appreciate
that their right to fair administrative action was violated
because
they were not told of the reasons for the deductions from their
remuneration nor given an opportunity to make representations
before
they were implemented. The simple point to make in regard to this
ground of appeal is that the application was not one of
the
administrative review, nor did the applicants plead such a cause of
action in their papers. Indeed, the fact that this was
not the
applicants’ case was explicitly referred to in paragraph [15]
of my judgement. Accordingly, the court was not required
to consider
a cause of action based on administrative law.
[6]
Fourthly, the applicants’ claim that the Court erred in finding
there was an error in calculating their remuneration because
of the
way that medical aid and pension fund contributions were dealt with.
I am satisfied on the evidence that there is no basis
for this
contention as it is obvious that pension and medical aid
contributions were accounted for twice in the applicants’
remuneration.
[7]
The applicants contend that the court erroneously found that the
first applicant had engineered the overpayment. Like the first
mentioned ground of appeal, this is completely disingenuous and
seriously misrepresents the court’s findings: nowhere in
the
judgment was such a finding made. The issue only arose because of an
argument advanced by the first applicant herself which
I dealt with
in paragraph [17]. The applicants’ legal representatives ought
to have cautioned their clients against making
such an
unsubstantiated claim, and calls their professional conduct in this
regard into question.
[8]
Lastly, the applicants contend that the Court erred in interpreting
sections 34 (1) (b) and 34(5) (a) Of the Basic Conditions
of
Employment Act. Although the applicants have not advanced this as a
compelling reason of the kind mentioned in
section 17(a)(ii)
of the
Superior Courts Act, 10 of 2013
, and have not advanced any contrary
authority for the interpretation of these provisions, there has been
no judgement of the Labour
Appeal Court dealing with the proper
interpretation of these provisions and the correct interpretation
thereof is of some importance
to both employers and employees.
Accordingly I am inclined to grant leave on this narrow legal
question alone.
Costs
[9]
The applicants are successful in only one narrow respect. Ordinarily,
I would be inclined to grant them their costs nevertheless.
However, their disingenuous raising of two obviously spurious grounds
of appeal, which completely misrepresent the court’s
findings
is a matter which deserves an expression of the court’s
disapproval. Accordingly, I am of the view they are not
entitled to
their costs.
Order
[1]
Leave to appeal against the judgement handed down on 5 September 2017
is granted solely on the legal question whether or not
the Court
erred in its interpretation of 34 (1) (b) and 34(5)(a) of the
Basic
Conditions of Employment Act, 75 of 1997
.
[2]
Parties must pay their own costs of the application.
_______________________
Lagrange
J
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANTS:
S
T Mosomane of Mosomane
Attorneys
Inc.
RESPONDENT:
I
Gwaunza of Edward Nathan
Sonnenbergs
Inc.