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[2018] ZALCJHB 450
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Massmart Holding Limited v Theron (JS1043/16) [2018] ZALCJHB 450 (6 June 2018)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case
no:
JS1043/16
In the matter between:
MASSMART HOLDINGS
LIMITED
Applicant
and
JACQUES THERON
Respondent
Considered:
In chambers
Delivered:
06 June 2018
JUDGMENT:
APPLICATION FOR LEAVE TO APPEAL
Nkutha-Nkontwana J,
Introduction
[1]
This is an application for leave to appeal
by the respondent (Mr Theron) against the whole judgment and order
handed down by this
Court on 11 January 2018. In the judgment, I
found that Mr Theron was directly involved in the recruitment of Mr
Pillay to join
his current employer, African Bank, in breach of the
contractual undertaking and therefore liable for damages suffered by
the applicant
in recruiting Mr Pillay’s replacement.
[2]
The application for leave to appeal is
vigorously opposed by Massmart Holdings Limited. The parties are
referred to as they are
in the judgment for expediency.
Grounds of appeal
[3]
Mr Theron’s leave to appeal is catholic, with
unrestrained nit-picking grounds of appeal which I deem unnecessary
to restate
in this judgement. However, it is clear from his
submissions that the core of his impugn is that I erred in finding
the he
was directly involved in recruiting Mr Pillay to join African
Bank in breach of his contractual undertaking.
[4]
As
mentioned in the judgment, there are two issues that arise in respect
of a claim for damages consequent to a breach of contract
and are
succinctly stated in
KwaZulu-Natal
Tourism Authority and Others v Wasa.
[1]
Firstly, the applicant must prove that it had suffered damages as a
consequence of the breach of the undertaking by the respondent
and
that there is a link between the damages it suffered and the breach;
and, secondly, that the quantum of damages it actually
suffered.
[5]
On the facts, I am satisfied that Mr Theron breached his
undertaking for the reasons as mentioned in the judgment. At the risk
of
repeating myself, I must emphasise that Mr Theron conceded that he
was not aware of his contractual undertaking throughout the process
of recruiting Mr Pillay. This concession was fatal to his defence in
the light of the undisputed evidence that he had suggested
Mr
Pillay’s name to African Bank, attended to relevant recruitment
paperwork and facilitated the increased offer of employment
that was
ultimately accepted by Mr Pillay. Clearly, he was directly involved
in enticing Mr Pillay to join African Bank.
[6]
It is also common cause that Mr Theron was Mr Pillay’s
mentor and his successor in title. In fact, Mr Pillay had been
appointed
to replace Mr Theron as part of the succession plan when he
was headhunted by African Bank. It was Massmart’s uncontested
evidence that it had no option but to recruit Mr Pillay’s
replacement from external candidates and thereby incurring
recruitment
costs as a result of Mr Theron’s breach. It is not
disputed that the current incumbent who replaced Mr Pillay was
recruited
through a placement agency at a cost of the quantum claimed
by Massmart in damages.
Test
for leave to appeal
[7]
The test
this Court has to apply when considering leave to appeal is set out
in section 17(1) of the Superior Courts Act
[2]
as follows:
‘
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.'
[8]
In
the present application, I have considered the various grounds of
appeal, as well as the written submissions in support thereof.
I
am persuaded that Mr Theron failed to make out a case that another
Court may reasonably arrive at a decision different to the
one
reached by this Court.
[3]
Put
otherwise, there are no reasonable prospects that another Court may
well find merit in the contentions advanced by Mr Theron.
[9]
Furthermore,
it is clear that the threshold to grant leave to appeal in matters of
this nature has been raised by the provisions
of Section 17(1)(a)(ii)
of the Superior Courts Act. In addition to showing that there is a
reasonable prospect of success on appeal,
an applicant must show that
there is some other compelling reason which merit an appeal such as
conflicting judgements or a substantial
point of law, among
others.
[4]
None of these
have been put forward in this application.
The
leave to appeal should, therefore, be refused.
[10]
As a rule of practice, costs do not follow the result in
matters before this Court. However, this is a typical case where Mr
Theron
should pay the costs. I have taken into account the
undesirable manner in which Mr Theron has set out the grounds of
appeal, which
is wide ranging and ill-conceived.
[11]
In the circumstances, I make the following order:
Order
1.
Mr
Theron’s application for leave to appeal against the judgment
handed down on 11 January 2018 is dismissed.
2.
Mr Theron is ordered to pay Massmart costs
of this application.
_____________________
P. Nkutha-Nkontwana
Judge
of the Labour Court of South Africa
[1]
[2016]
ZALAC
35
;
[2016] 11 BLLR 1135
(LAC); (2016) 37 ILJ 2581 (LAC) at para 32.
[2]
Act 10 of 2013.
[3]
Martin
and East (Pty) Limited v National Union Mineworkers and Others
[2013] ZALAC 35
; (2014) 35 ILJ 2399 (LAC) page 16 lines 12 - 25 and
page 17 lines 1 – 18; and
National
Union of Metalworkers of South Africa and Others v Columbus
Stainless [2016]
ZALCJHB 344 at paras 2 –3.
[4]
Investec
Bank Limited v Karel & Another
[2016]
ZAGPJHC 171 at para 14; and
Notshokovu
v S
[2016] ZASCA 112
at para 2.