About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2019
>>
[2019] ZALCJHB 314
|
|
City of Tshwane Metropolitan Municipality v IMATU obo Members (JR2769/16) [2019] ZALCJHB 314 (15 November 2019)
IN THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: JR 2769/16
In the matter between:
CITY OF TSHWANE
METROPOLITAN MUNICIPALITY
Applicant
and
IMATU OBO MEMBERS
Respondent
Considered: 22 August
2019
Delivered: 15 November
2019
JUDGMENT
MABASO,
AJ
Introduction
[1]
The challenge that I am faced with herein is that the Judge who used
his discretion
in making a variation ruling an order of court and
issued subsequent directives sadly passed away before he could
finalise this
matter. Before this Court is an application for leave
to appeal against an order of the late Steenkamp J, a condonation
application
for the application for leave to appeal as it was
delivered beyond the prescribed time and the Respondent's application
to dismiss
the leave to appeal. Parties are hereinafter referred to
as cited.
Condonation
application for the late delivery of the application for leave to
appeal
[2]
The Respondent had approached this Court to make a variation ruling
an order of Court
in terms of section 158(1)(c) of the Labour
Relations Act
[1]
(LRA). The
Applicant opposed the application and on 03 May 2018 Steenkamp J
delivered an
ex
tempore
judgement. The notice for leave to appeal was delivered 5 days
outside the 15 day period as required by the Rules of the Labour
Court (the Rules). Therefore, the condonation application was
necessary, and the Respondent delivered it in September 2018.
The delay is not inordinate, therefore, based on this ground alone
the condonation application for the late delivery of the notice
for
leave to appeal is granted.
Written
submissions for leave to appeal
[3]
This Court has its own Rules (and Practice Manual) which when applied
it must be in
line with the interest of justice, and the application
of same may sometime differ in case by case based on the
circumstances and
facts of each case.
[4]
The Constitutional Court regarding the application of Rules in
Superior Courts, unlike
Magistrates Court, held as follows in
PFE
International Inc (BVI) and Others v Industrial Development
Corporation of South Africa Ltd
[2]
:
“
Since the rules
are made for courts to facilitate the adjudication of cases, the
superior courts enjoy the power to regulate their
processes, taking
into account the interests of justice. It is this power that makes
every superior court the master of its own
process.
It enables a
superior court to lay down a process to be followed in particular
cases, even if that process deviates from what its
rules prescribe
.
Consistent with that power, this Court may in the interests of
justice depart from its own rules.”
[5]
In terms of the Practice Manual, the Applicant was required to
deliver written submissions
within ten days after the application for
leave to appeal had been delivered
[3]
,
as the process of transcription of an
ex
tempore
judgement does not interrupt this period, and once written submission
are filed the application for leave to appeal will have to
be decided
by the Judge in chambers.
[4]
[6]
Upon this file being allocated to me by the Judge President, I
noticed that one of
the directives that were issued by the late
Steenkamp J, dated 18 February 2019, he had directed that:
" …the
Applicant must obtain and file a transcript of the
ex tempore
judgment, once the transcript is received, the matter will be set
down for hearing."
[7]
I further noticed that the applicant had not delivered the written
submissions as
required by clause 15.1 of the Practice Manual, and in
June 2019 the respondent had launched an application to dismiss the
leave
to appeal. I then directed the parties to file respective
written submissions by no later than 15 August 2019. It appears that
the applicant did not receive this directive on time but proceeded to
deliver its written submissions on 29 August 2019.
[8]
Generally, applications for leave to appeal in this court are decided
in Chambers
and parties are expected to deliver wrtitten submissions,
however, at times the Judge may use his/her discretion . This is
provided
for in Rule 30 (3A) of the Rules which specifically provide
that:
“
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.”
[9]
This discretion is given to the judge in line with what CC has
re-emphasised in the
PFE International dictum
above. Some of
the circumstances that might lead to the judge to order a party not
to deliver written submissions are when a party
is illiterate and/or
whatever reason that such Judge might deem valid to excuse such
party.
[10]
As things stand, I do not know the reasons why Steenkamp J made the
directive mentioned in paragraph
6 above, as to whether or not he was
excusing the applicant from filing written submissions, as per Rule
30(3A) or that maybe he
intentionally deviated from the Practice
Manual as the law allowed him to do so by
"lay down a process
to be followed in particular cases, even if that process deviates
from what [the Rules/Practice Manual]
prescribe"
. I say this
because it is common cause that the applicant by 18 February 2019 had
not delivered the written submissions despite
Steenkamp J's directive
dated 31 January 2019 advising the applicant that,
“…
your
attention is drawn to paragraph 14.5 of the Practice Manual, read
with rule 30(3A) respectively. As thing stands, the court
can
only
be able to entertain your application
after you have complied
with the above paragraph as stipulated in the Labour Court Practice
Manual."
[11]
It is, therefore, concluded that despite the Practice Manual
directing parties in the leave to
appeal to deliver written
submissions within a specified period, this court could exercise its
discretion as to how to handle a
matter. I conclude that there was no
need for the applicant to bring a condonation application as it might
happen that Steenkamp
J excused them from doing so in terms of Rule
30(3A) of the Rules.
Application
for dismissal of the leave to appeal
[12]
The respondent avers that the leave to appeal should be dismissed, as
they are of the view that
the applicant delayed the prosecution of
the leave to appeal. Further, they submit that the reason for the
application is that
the application for leave to appeal was delivered
on 1 June 2018 without a condonation application, the condonation
application
only being filed on 15 September 2018, three months after
the application for leave to appeal had been delivered.
[13]
The respondent further states that the
ex tempore
judgement
was delivered in May 2018, and that “
the full judgement was
signed by the Learned Judge on the 02nd August 2018
”. The
respondent transmitted a notice of intention to dismiss the
application for leave to appeal to the applicant's attorneys
who did
not respond. They also have attached the letter which reiterates the
directive of 31 January 2019 by Steenkamp J, among
other things,
advising that the matter was to be entertained once the applicant
complies with paragraph 14.5 of the Practice Manual.
Based on the
conclusion reached in paragraphs 4 to 11 above, I conclude that the
application to dismiss has to be struck off the
roll.
Leave
to appeal
[14]
In November 2014, the respondents referred an unfair labour practice
dispute to the Bargaining
Council, which was concluded in May 2016 by
way of an arbitration award. The respondent brought an application to
vary the same
arbitration award. The applicant did not oppose this
variation application. Neither did the applicant bring an application
to review
and set aside this variation ruling. The respondent
approached this Court in terms of section 158(1)(c) of the LRA to
make the
variation ruling an order of court. The applicant in
opposing that application
inter alia
addressed a letter to the
respondent’s union advising that "
[it] will abide [by]
the ruling of the arbitrator
". This application served
before Steenkamp J who then proceeded to make the ruling an order of
court, and reaching this decision
he
inter alia
held that
“
[the ruling] stands and [the applicant ] has not taken it
on review
”, and quoted the submissions by the applicant’s
representative that “
the arbitration award has been complied
with”.
[15]
The test to grant an application for leave to appeal is that:
“
(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”.
And the LAC in
PLSMIDTH
Buffalo (Pty) Ltd v Hlakola
[5]
held that,
“
In the
circumstances, I am of the view that the Labour Court was entitled to
make the award an order of court. In making an award
an order of
court, the Labour Court exercised a discretion. It is trite that an
appeal court will interfere with a discretion of
a court a quo only
if it was exercised improperly or unreasonably. For an appeal court
to interfere with a discretionary power
of a court below, an
appellant must show that the court a quo acted capriciously, or acted
upon a wrong principle, or in a biased
manner, or for insubstantial
reasons, or committed a misdirection or an irregularity, or exercised
its discretion improperly or
unfairly.In considering whether a court
a quo had improperly exercised its discretion, the appeal court is
not entitled to interfere
on the basis that in its opinion it would
have come to a different conclusion because this would be
substituting its discretion
for that of the court a quo.
[6]
[16]
In addition to this test, the Labour Appeal Court (LAC) in
Martin
and East (Pty) Ltd v NUM and Others
[7]
sent this warning to the Labour Court about leave to appeal
applications:
“
I would urge
labour courts in future to take great care in ensuring a balance
between expeditious resolution of a dispute and the
rights of the
party which has lost. If there is a reasonable prospect that the
factual matrix could receive a different treatment
or there is a
legitimate dispute on the law, that is different. But this kind
of case should not reappear continuously in
courts on appeal after
appeal, subverting a key purpose of the Act, namely the expeditious
resolution of labour disputes.”
[8]
[17]
I must also add that this Court does not grant leave to appeal for
the purposes of the LAC to
interpret the law for the parties. I have
carefully considered the grounds for leave to appeal as submitted by
the applicant, and
my view is that there it is no prospect that
another court might come to a different conclusion than the one that
was reached by
the late Steenkamp J who exercised his discretion in
making the variation ruling an order of Court.
[18]
Further, the facts that Steenkamp J relied on as summarised above are
not disputed by the applicant.
Considering the grounds for leave to
appeal, the Respondent wants the LAC to interpret and/or clarify the
terms of the variation
ruling which is not the task of the LAC.
Granting the leave to appeal will be against
Martin's
principle
because in making the variation ruling an order of Court, it is not
the end of the matter as there is still a possibility
of an
enforcement process which might be engaged in, such as a contempt
application.
[19]
I must also indicate that the applicant on 15 October 2018 delivered
what it termed a “
Supplementary notice of application
for leave to appeal”. I have perused this notice and clearly
the applicant was introducing
totally new grounds of leave to appeal.
The applicant should have brought a condonation application in
respect of this second notice.
Therefore, this court cannot consider
this new grounds.
[20]
Wherefore, the following order is made:
Order:
1. The
condonation for the late delivery of the notice of leave to appeal is
granted.
2. The
application to dismiss the notice of leave to appeal is struck off
from the roll.
3. The
supplementary notice of application for leave to appeal is struck off
from the roll.
4. The
application for leave to appeal is dismissed.
5. No
order as to costs.
—————————————
S.
Mabaso
Acting
Judge of the Labour Court of South Africa
Appearances:
For
the Applicant: Adv R Mogagabe SC (with Adv K Bokaba)
Instructed
by : Malebye Mdiaung Attorneys
For
the Respondent: Adv JL Basson
Instructed
by : Tim Du Toit Attorneys.
[1]
No. 66 of 1995, as amended.
[2]
2013 (1) SA 1 (CC).
[3]
Clause 15.2 read with Rule 30 (3A).
[4]
Clause 15.1 of the Practice Manual.
[5]
[2019] 4 BLLR 363
(LAC), paras 16.
[6]
Footnotes omitted.
[7]
(2014) 35 ILJ 2399 (LAC).
[8]
Ibid at p. 2406 at paras D – E.