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[2020] ZALCJHB 98
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Matlole v Mafube Local Municipality and Others (J421/2020) [2020] ZALCJHB 98 (24 June 2020)
IN
THE LABOUR COURT OF SOUTH AFRICA
(HELD
AT JOHANNESBURG)
JUDGMENT
Not
reportable
CASE
NO: J 421/2020
In
the matter between:
MOJALEFA
JOSEPH MATLOLE
Applicant
And
MAFUBE
LOCAL MUNICIPALITY
First
Respondent
JABULANI
ELLIOT SIGMA
Second Respondent
MOSES
TEKOETSILE MOFOKENG
Third Respondent
MARIA
MATSATSI MOFOKENG
Fourth Respondent
THEMBENI
NXANGISA
Fifth
Respondent
Enrolled:
6 May 2020 (Decided in Chambers on the papers)
Judgment
delivered: This judgment is delivered by email, addressed to the
parties' representatives on 24 June 2020 at 12:00, which
is the
deemed date and time of delivery.
RULING:
APPLICATION FOR LEAVE TO APPEAL
VAN
NIEKERK J
[1]
The applicant applies for leave to
appeal against the whole of the judgment delivered by this court on 6
May 2020, when the applicant's
claim for payment of his salary was
dismissed, with costs.
[2]
The relevant facts are recorded in the
judgment in respect of which leave to appeal is sought, and I do not
intend to repeat them
here. It is sufficient for present purposes to
record that the dispute between the parties was whether the applicant
had resigned
from the respondent's employ. The court found that he
had, and was thus not entitled to the salary that he sought.
[3]
The applicant seeks leave to appeal on
three main grounds. First, he contends that the court found that he
withdrew his resignation
on 28 February 2020, being the last date of
the notice period, and that the withdrawal of the notice was effected
on 25 February
2020 during the subsistence of the contract. Relying
on the princip e that a fixed term contract cannot be terminated
during its
currency, the applicant appears to submit that he was
entitled in those circumstances to withdraw hrs notice. There is no
merit
in this submission, if only because the terms of the contract
entitled the applicant to terminate the contract on one months'
notice
after he had been employed for 12 months (which he had been).
He did no more than exercise his right to terminate his contract by
giving one calendar months' notice. Having given notice as he did on
30 January 2020, he acted unilaterally to terminate the contract,
clearly and unambiguously. The applicant's resignation was
communicated to the first respondent. Although it is not a necessary
perquisite to a valid resignation, the first respondent's council
accepted the applicant's resignation on 30 January 2020. The
fact
that the applicant maintains that his resignation was withdrawn on 25
February (as opposed to 28 February 2020, the date on
which he avers
the court found that the notice was withdrawn) is neither here nor
there. By 25 February 2020, the applicant had
unilaterally terminated
his contract of employment in circumstances where it was not open to
him to revoke that termination.
[4]
In so far as the applicant relies on the
submission that he was instructed by the fifth respondent (the MEC)
to resign, the answering
affidavit makes clear that the administrator
of the first respondent had spoken to the MEC who admitted meeting
the respondent
but denied offering the applicant a position in a
different capacity. A signed confirmatory affidavit deposed to by the
MEC was
annexed to the answering affidavit. What the MEC did say is
that the auditor general had raised queries regarding the
overpayment of the applicant's salary, a matter
that had been escalated to parliament. The MEC had a+so raised
the
issue of the applicant's irregular appointment by the first
respondent. These are all factual averments that the court was
obliged to accept, given that they were not seriously disputed in
reply, with the appl1cant saying only that the confirmatory affidavit
'was not enough'
.
[5]
Finally, the authorities on which the
applicant now relies are misplaced. They concern employees who act on
impulse and resign in
the heat of the moment. In the present
instance, that was never the applicant's case (his case was that the
first respondent and
the MEC had acted in cahoots to remove him from
office) and in any event, neither case contradicts the
well-established principle
that notice once 91ven cannot be withdrawn
except by agreement.
[6]
In so far as the applicant appeals
against the order for costs, the LRA confers a broad discretion on
this court to make orders
for costs according to the requirements of
the law and fairness. The application was obviously misguided, and
lacked merit from
the outset. The order for costs was further
intended to discourage applicant from abusing the urgent roll by
filing applications
manifestly
without
merit, especially where the claim is one sounding in money. An appeal
court will ordinarily not interfere in the exercise
of a discretion,
unless the circumstances are exceptional. Finally, there is no reason
why the applicant ought not be ordered to
pay the costs of these
proceedings.
I
make the following Order
:
1.
Leave to appeal is refused with costs.
Andre
van Niekerk
Judge
of the Labour Court