IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, MTHATHA )
CASE NO: 3208/2024
In the matter between:
OR TAMBO DISTRICT MUNICIPALITY 1st Applicant
THE MUNICIPAL MANAGER: OR TAMBO
DISTRICT MUNICIPALITY 2nd Applicant
And
PHENDULE MBEWU Respondent
JUDGMENT ON
APPLICATION FOR LEAVE TO APPEAL
ZONO AJ :
Introduction
[1] This is an application for leave to appeal the whole judgment delivered on
22nd August 2024. The Municipality is the applicant herein. T his
application was lodged on 27th August 2024 at the instance of the
Municipality , a party against whom the main Judgmen t was granted. After
the enrolmen t of the application for hearing on 30th September 2024, an
application for postponement was made and g ranted due to
circumstances b eyond the control of applicant’s Counsel who was unable
to be in court on that day. The parties agreed that the costs of that day be
in the cause. The matter was ultima tely enrolled for hearing on 14th
February 2025 . The applic ation was duly argued on that day .
[2] Stripped of wordiness , the applicant seeks t o appeal the judgment on the
grounds that are summarised hereinafter as follows:
[3] The court erred in ordering the applicant to pay respondent’s salary for the
entire mo nth of July 2024 when it was common cause that he tendered his
services only for few days of that month. The court should have applied no
work no pay principle as the respondent would only be entitled to salary
from 17th July 2024 and not the whole month.
[4] The applicant understood the order granted in paragraph 65.3 of the
judgment to be an order reserving office number F -02. It criticizes the
judgment for reservi ng a particular office for the respondent and to allow
the respondent access to that offi ce in perpetuity . The gravamen of this
ground is that the respondent is not entitled , as a right , to a particular
office or even a right to work. An employer is entitled to tell an employee
that employee’s services are not required.
[5] The applicant criti cizes the judgment for finding that Ouderkraal principle
applies to arbitration awards. The applicant contends that the judgment
overlooked the provision s of section 158(1)( c) of LRA which effectively
provide that an arbitration award can be enforced only when it is made an
order of court. The applicant understood the main application to be
enforcing an arbitration award. The applicant contends that the judgment
fails to consider that a party may elect to ignore an administrative decision
if it believes t hat it is unlawful and reactively challenge same in defence
when the party is criminally prosecuted or sued in civil proceedings .
[6] The applicant contends that the judgment is erroneous because it failed to
evaluate whether the administrative act relied upon by the respondent was
invalid.
[7] The applicant does not accept that the main application sought to enf orce
the terms of employment agreement. The applicant contends that the
contract of employment was sourced in a ruling issued by an arbitrator in
terms of the LRA, and the judgment overlooked that. The arbitration
award , as the font of the proceedings and the contract , is a nullity for want
of jurisdiction. The labour court has exclusive jurisdiction over issues
arising out of LRA, including enforc ement of arbitration awards . The
applicant contends that the arbitration award as a font of contractual claim
was a nullity and incurably bad and was accordingly unenforceable
without a need to set it aside.
[8] The applicant contends that the arbitration award was ordering the
restoration of respondent’s contract of employment and the judgment
failed to appreciate that respondent’s contract was never restored and
therefore there was never compli ance with the arbitration award . The
applicant therefore conc ludes that the only way for the employee to get
back into the employ of the Municipality is to enforce the arbitration award/
ruling which gave him the right to return to his employer.
[9] The applicant criticizes the judgment for determining that the mat ter was
urgent when according to the applicant the respondent waited for a period
of almost two years before approaching court.
[10] The applicant assails the judgment for a punitive cost order granted
against it.
Legal Principle
[11] An application fo r leave to appeal is governed by Section 17(1) of the
Superior Court Act which provides as follows:
“(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 o f
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.”
[12] In Smith1Plasket AJA (as he then was) held that:
“7. What the test of reasonable prospects of success postulates
is a dispassionate decision, based on the facts and the law,
that a court of appeal could reasonably arrive at a conclusion
different to that of the trial court. In order to succeed,
therefore, the appellant mu st convince this court on proper
grounds that he has prospects of success on appeal and
that those prospects are not remote but have a realistic
1 Smith v S 2012 (1) SACR 567 (SC A) Para 7 .
chance of succeeding. More is required to be established
than that there is a mere possibility of success, that the case
is arguable on appeal or that the case cannot be categorised
as hopeless. There must, in other words, be a sound,
rational basis for the conclusion that there are prospects of
success on appeal.”2
[13] These sentiments were shared by Schippers A JA in Mkhitha3 where the
following was said :
“17. An applicant for leave to appeal must convince the court on
proper grounds that there is a reasonable prospect or
realistic chance of success on appeal. A mere possibility of
success, an arguable case or one that is not hopeless, is not
enough. There must be a sound, rational basis to conclude
that there is a reasonable prospect of success on appeal .”
Discussion
[14] I have dealt in my judgment with almost all the issues that are raised in the
notice of application for leave to appeal . I still stand by my reasons set out
in the judgment. Some of the grounds were neither raised in the papers
nor argued in the court a quo as issues for determination. I shall dea l only
with those issues that are re levant for determination of this matter.
[15] Moving from the premise that the main application sought to enforce a
ruling or an award made by the arbitrator in the bargaining Council, the
applicant contended th at such a ruling or award is unenforceable for the
arbitrator failed to determine the issue of unfair dismissal that was before
2 S v Mabena & Another 2007 (1) SACR 482 (SCA) Para 22 .
3 MEC for Health, Eastern Cape v Mkhitha and another (1225) [2016] ZASCA176 (25
November 2016) Para 17 .
him. The arbitrator, so the argument went , decided a matter that was not
placed before hi m by the parties . This issue was argued at length in the
first instance.
[16] At the hearing of the application for leave to appeal the point slightly
shifted and focused on the nullity of the ru ling or arbitrators award, which
point was not sharply or pertinently raised in the answering affidavit
serving before the court of first instance. The i ssue about nullity of the
arbitration award or ruling was not agued in the first instance.
[17] When the debate in the application for leave to appeal ensued about the
existence of the contract of employment and enforceability of its terms ,
applicant’s ar gument developed into saying , if the arbitration award, which
sought to revive respondent’s contract of emplo yment i s a nullity , so is the
contract. No contractual terms may be enforceable if the font of the
contract is a nullity. It is not pertinently ple aded in the applicant’s papers
that the contract of employment between the parties was a nullity for its
font is. I was informed on behalf of the applicant that the arbitrator
exceeded its jurisdiction when it failed to decide a matter that was placed
before it by the parties. It was concluded that an order or award granted
without jurisdiction is a nullity.
[18] Whilst the importance of pleadings was accepted by the applicant, I was
advised that the point about the nullity of the award, resulting in the n ullity
of the contract of employment it sought to revive, is a point of law, which
necessarily does not have to be pertinently raised in the papers.
[19] During the hearing of the application for leave to appeal, the debate
narrowed itself down to the nul lity of the arbitration award which could not
produce consequences of a valid contract.
[20] The respondent app roach ed the court of first instance for enforcement of
the terms of contract of employment. The contract aforesaid was allegedly
revived after r espondent’s dismissal from employment by the arbitration
award penned by Malusi Mbul i on 20th August 2022. There is a direct
bearing between the arbitration award and the contract of employment
that was intended to be revived by the same award. The existen ce and
validity of contract of employment depends on the legal or substantive
existence of the arbitration award.4
[21] Being mindful of the fact that an arbitral award can be challenged and set
aside in review proceedings5, applicant contends that a null ity, if it is found
to exist produces nothing. Nothing can come into existence as a result of a
nullity. If the appeal court finds that the arbitration award is a nullity, as a
corollary the contract of employment sought to be revived by the award is
a nul lity.
[22] I am therefore satisfied that there are prospects of success on appeal and
another court might come to a different conclusion to the one the court of
first instance arrived at.
Order
[23] In the result I grant the following order:
23.1 Leave to appeal is hereby granted to the f ull court of the
Eastern Cape Division, Mthatha.
23.2 Cost s of this application are costs in the appeal.
4 Ouderkraal Estates (Pty) Ltd v City of Cape Town and others 2004 (3) ALL SA 1 (SCA) ;
2004 (6) SA 222 (SCA) Para 20, 31 and 32 .
5 Cusa v Tao Ying Metal Industries and Others 2009 (2) SA 204 (CC); 2009 (1) BCLR (CC);
2009 (1) BCLR (1)(CC) Para 66 .
____________________ _____________________
A.S. Zono
ACTING JUDGE OF THE HIGH COURT
APPEARANCES:
For the Applicants : ADV KROON SC
Instructed by : NOSINDWA ATTORNEYS
23 Delville Road
Mthatha
Tel: 047 531 4429
For the Respondent : ADV MAPEKULA
Instructed by : M NZIMA ATTORNEYS
No 47 Cumberland Road
Mthatha
Cell No: 072 130 4772
TEL: 047 1109 120
E-mail : brnzima@gmail.com
Ref : Mr Nzima
Date heard : 14 February 2025
Date Delivered: : 13 March 2025