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[2019] ZALCJHB 371
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Botha t/a Tax Consulting SA v Renwick (J1676/19) [2019] ZALCJHB 371 (26 November 2019)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
CASE
NO: J 1676/19
In the matter between:
CHRISTOFFEL GERHARDUS BOTHA
t/a
TAX CONSULTING
SA Applicant
and
CHRISTOPHER JAMES MGLURE
RENWICK
Respondent
Date
of ruling: 26 November 2019
RULING:
APPLICATION FOR LEAVE TO APPEAL
VAN
NIEKERK J
[1]
The applicant seeks leave to appeal against the whole of the judgment
delivered by this
court on 20 August 2019. In its judgment, the court
dismissed, with costs, an application for an interim order directing
the respondent
to pay the sum of R 297 857.08 into trust pending the
outcome of the resolution of s dispute between the parties concerning
the
payment of a bonus by the applicant to the respondent.
[2]
The material facts are recorded in the judgment and do not warrant
repetition. In essence,
the applicant sought to have an amount
equivalent to the net of a bonus paid to the respondent on 5 July
2019 paid into the trust
account of its attorney, pending the outcome
of an action in which it would seek to recover that amount from the
respondent. The
applicant alleged that the respondent was obliged in
terms of the applicable policy to repay the bonus on his later
resignation
from the applicant in July 2019. The applicant’s
grounds for leave to appeal are that the court erred first, in
evaluating
whether the applicant had established a clear right (as
opposed to a
prima facie
right) to the relief sought;
secondly, in finding that the applicant sought an anti-dissipation
order; thirdly, that the applicant
had failed to establish any
apprehension of harm; fourthly, in finding that there was a dispute
of fact on any material issue on
the papers; and finally, in finding
that the applicant should pay the costs of the application.
[3]
The judgment clearly discloses that the nature of the proceedings, in
the absence of any
clarity in the founding appears, were such that
the applicant appeared to seek interlocutory relief in the form of an
anti-dissipation
order, or security for a future judgment, or some
combination of the two. To the extent that the applicant was required
to meet
the threshold for interim relief (this is the basis on which
the case was presented and argued), in paragraph 27 of the judgment,
the court makes clear that in its view, the applicant failed to clear
the hurdle of establishing a
prima facie
right though open to
some doubt, particularly since the policy relied upon made no express
reference to retention as a fundamental
purpose. On the contrary, the
policy was driven by performance, and it was not in dispute that both
the applicant and the respondent
ion his individual capacity had meet
the required performance targets. In so far as the apprehension of
harm is concerned, as the
court observed, the facts disclosed did not
support the conclusion that any harm that the applicant might suffer
should the order
be refused was irreparable. As far as factual
disputes are concerned, the judgment clearly discloses that the
merits of the application
were decided on the applicant’s own
version. There was no need to apply the test in
Webster v
Mitchell
, or to refer the matter to oral evidence. It follows
that the applicant has not made out a case for leave to appeal, and
that the
present application stands to be dismissed.
[4]
Finally, there is no reason to deny the respondent the costs of
opposition to this application.
I make the following order:
1.
Leave to appeal is refused, with costs.
André van Niekerk
Judge