Chen Yun Bo v Paballo Martin Theko and Others (C of A (CIV) 7 of 2014) [2014] LSCA 3 (17 April 2014)

IN THE COURT OF APPEAL OF LESOTHO Held at Maseru C of A (CIV) NO. 7/2014 In the matter between: CHEN YUN BO APPLICANT and: PABALLO MARTIN THEKO FIRST RESPONDENT THE PRESIDENT OF THE SECOND RESPONDENT LABOURCOURT THE DIRECTORATE OF DISPUTE THIRD RESPONDENT PREVENTION AND RESOLUTION CORAM : SCOTT, A. P. THRING, J. A. CLEAVER, A. J. A. HEARD DELIVERED : : 7 APRIL, 2014 17 APRIL, 2014 SUMMARY Application under sec. 38AA(2) of Labour Code Act, 1992, as amended, for leave to appeal to Court of Appeal from order of Labour Appeal Court – Ground relied on that Labour Appeal Court ought to have referred matter back to Labour Court for hearing of vivavoce evidence or to trial – Such referral not requested in Labour Appeal Court – Not open to applicant now for first time to rely on this ground – Material dispute of fact arising in motion proceedings – Discretion of Court to refuse application – Not to be interfered with on appeal unless discretion not exercised judicially, or exercised on a wrong principle. JUDGMENT THRING, J. A. [1] Before this Court are two applications. The first is an application brought by the applicant in terms of sec. 38AA(2) of the Labour Code Act, 1992 as amended, for leaveto appeal to this Court against an order made by the Labour Appeal Court (per Mosito, A. J.) on 7 November, 2013. The order was made in refusing a certain prayer in the applicant’s review application, in which he had sought on motion to have reviewed certain proceedings in the Labour Court which took place in November, 2012. The dispute between the parties arose out of an award for payment of M53,128.30 which was made on 19 July, 2012 by the third respondent (the Directorate of Dispute Prevention and Resolution) in favour of the first respondent against a company called Chen Feng International (Pty) Ltd in respect of the underpayment of his resignation benefits. The applicant applied unsuccessfully on 27 January, 2014 to Mosito, A. J. in the Labour Appeal Court for a certificate for leave to appeal against his order to this Court under the provisions of sec. 17 of the Court of Appeal Act, No.10 of (the application ought to have been brought in terms of the similarly worded section 38 AA(2) of the Labour Code Act, which is the applicable provision, but nothing turns on this error). [2] Sec. 38 AA(2) of the Labour Code Act, as amended, reads as follows: “A person aggrieved by any judgment or order of the Labour Appeal Court in its appellate jurisdiction may appeal to the Court of Appeal with leave of the Court of Appeal or upon a certificate of the Judge who heard the appeal on any ground of appeal which involves a question of law, but not a question of fact.” It is common cause that, in dealing with the review of the proceedings of the Labour Court the Labour Appeal Court was exercising its appellate jurisdiction. That being so, an appeal to this Court lies only on a ground of appeal which involves a question of law, as opposedto one of fact, and then only with the leave of this Court or upon a certificate of the Labour Appeal Court. As I have said, the Labour Appeal Court has refused to grant such a certificate. Hence the application to this Court. [3] The grounds on which the applicant now seeks leave to appeal to this Court are formulated as follows: “(1) The learned Judge erred and misdirected himself, after concluding that there existed [a] dispute of fact, by failing to consider:- (a) Whether or not to direct that oral evidence should be heard on specified issues with the view to resolving any dispute of fact; (b) Whether or not to direct that the matter be converted into a trial with appropriate directions as to pleadings or definition of issues. (2) The learned Judge erred and misdirected himself by failing to apply the principle that the party who alleges a certain fact bears the onus of proving that fact. First respondent bore the onus of proving that appellant /applicant was the director of Cheng Feng International (Pty) Ltd.” [4] At to ground (1) above, it is significant that there is no mention in the judgment of Mosito A. J., against which the applicant now seeks leave to appeal, of any possible reference of the matter to the hearing of viva voce evidence or to trial. After setting out the relief claimed by the applicant and the factual background, the learned Judge said: “The sum total of the aforegoing is that there is not one granule of doubt in my mind that there are genuine andsubstantial disputes of facts on the material aspects on the papers. In view of the magnitude of the dispute of fact identified below, there is no need to determine any further issues arising”. After setting out the content of the principal factual dispute, the Judge continued:- “3.4 In our view there is therefore a dispute of fact in this matter as to who of the two is responsible as the managing director of Chen Feng International (Pty) Ltd. Is it the father or is it the son? A litigant desirous of obtaining judicial relief by way of notice of motion and affidavits takes a risk. There can be us cross- examination of affidavits and, therefore, an assessment of credibility of witnesses is hardly possible. A principle which is fundamental to all notice ofmotion proceedings is that if a litigant knows in advance that there will be a material dispute of fact, the litigant cannot go by way of motion and affidavit. If he or she nevertheless proceeds by way of motion he or she runs the risk of having his or her case being dismissed with costs. (Mineworkers’ Union of Namibia vRössing Uranium Limited, 1991 NR299; Tamarillo (Pty) Ltd v B. N. Aitken (Pty) Ltd 1982(1) SA 398 (A)). 3.5 The dispute as to whether Chen Yong Biao or his son Chen Yun Bo are liable to abide by the award from the D. D. P. R. to pay the first respondent cannot be resolved on paper. In my view the proper approach where a dispute of this nature exists as in casu is to assume the correctness of the version of the respondent. In the present case the applicant has opted to approach the Court by notice of motion and affidavits. But from the papers I find that there is a substantial and genuine dispute of facts on the material aspects which go to the root of the lis between the applicant and the first respondent. If such approach is adopted then the application by the applicant cannot succeed.” [5] It is true that High Court Rule 8(14) provides that: “If in the opinion of the court the application cannot properly be decided on affidavit the court may dismiss the application or may make such order as to it seems appropriate with a view to ensuring a just and expeditious decision. In particular, but without limiting its discretion, the court may direct that oral evidence be heard on specified issues with a view to resolving any dispute of fact….. or it may order that the matter be converted into a trial with appropriate directions as to pleadings or definition of issues, or otherwise as the court may deem fit.” There is no corresponding provision in the rules of the Labour Appeal Court, which is not surprising inasmuch as that Court is not a court of first instance. However, Mr Chobokoane, who appears for the applicant, argued that the Labour Appeal Court ought to have referred the matter back to the Labour Court to hear such evidence or trial, where the necessary legal machinery exists to provide therefor. [6] Mr Chobokoane confirmed before us that in the Labour Appeal Court nobody asked that Court to refer the matter back for the hearing of oral evidence or to trial : hence the complete silence of Mosito, A. J. on that aspect in his judgment. [7] I conclude that the first ground on which the applicant now wishes to base his appeal to this Court, viz the failure of the Labour Appeal Court to refer the matter to oral evidence or to trial – (a) seeks to raise an issue which was not canvassed or even raised during the review proceedings in the Labour Appeal Court, and was consequently not considered or dealt with by that Court in its judgment; (b) was in the nature of an afterthought which the applicant now seeks to introducefor the first time at this very late stage in this Court. [8] A civil court deals, generally speaking, with issues which are placed before it by the parties to the dispute with which it is seized by way of formulation either in pleadings or in affidavits : it is not usually incumbent on the court to find, formulate or resolve issues which have not been thus raised by the parties. This is especially the case where, as here, the court concerned is exercising its civil review powers. Whilst a court may have powers such as those mentioned in High Court Rule 8(14) which it may in appropriate circumstances and in its discretion exercise meromotu, where it does not do so it does not, generally speaking, lie in the mouth of a party who has not asked it to exercise those powers to complain afterwardsthat it ought to have done so meromotu. The South African equivalent of High Court Rule 8(14) is Uniform Rule 6(5) (g). It has been held that a Court has a discretion under this Rule, which will not be interfered with on appeal unless it has not been exercised judicially, or has been exercised on a wrong principle : seeCresto Machines v Afdeling-Speuroffisier, S. A. Polisie, 1970 (4) SA 350 (T) at 365 F-G. This, in effect, is exactly what the applicant seeks to do here :material disputes of fact arose in the Labour Appeal Court which were not capable of resolution on the papers; one of the remedies which the applicant could have requested, at least in the alternative, was an order referring the matter back to the Labour Court for oral evidence or for trial; he refrained from doing so, and was apparently content to have the matter finalised on the papers in the Labour Appeal Court. In my view, in these circumstances it is not open to the applicant now in this Court to attack the order made by the Labour Appeal Court on this new ground. [9] The prospects of an appeal succeeding on this ground are so slight that granting leave to appeal on it could not, in my opinion, be justified. One of the requirements in an application for leave to appeal is that there must be reasonable prospects of the appeal succeeding : see van Heerden v Cronwright and Others, 1985(2) SA 342(T) at 343 C-D and Westinghouse Brake and Equipment (Pty) Ltd vBilger Engineering (Pty) Ltd, 1986 (2)SA 555 (AD) at 561 D-E. There are no such prospects here, to my mind. The first application must consequently fail as far as this ground is concerned. [10] As regards ground (2) above, on which leave is sought to appeal against the Labour Appeal Court’s order, it seems to me that there is no merit in it. Having found correctly that there were genuine and substantial disputes of fact on material aspects of the matter on the papers, Mosito, A. J.proceeded to assume the correctnessofthefirst respondent’s version for the purposes of the review. That approach was in accordance with the principles set out in Plascon – Evans PaintsLtd v van Riebeeck Paints (Pty) Ltd, 1984(3) SA 623 (AD) at 634 E – 635 C, and I can find no fault with it. I am not persuaded that there is a reasonable prospect that this Court might find that the Labour Appeal Court failed to apply any principle relating to onus in this matter. [11] The second application before us may be disposed of very briefly. It is an application for an interim stay of execution of Mosito, A. J.’s order of 7 November, 2013 and an interim order restraining the payment by the second respondent of the aforesaid sum of M53,128.30 to the first respondent, both “pending final determination of this application and appeal”. But since this money has already been paid over to the first respondent, the application has become moot and falls away, and no more need be said about it, save that it must be refused. [12] For the above reasons both the applicant’s application for leave to appeal to this Court and his application for a stay of execution and for an order restraining the second respondent from effecting payment of the sum of M53,128.20 to the first respondent are refused, with costs. I agree: I agree: __________________ W. G. THRING Justice of Appeal ________________ D. G. SCOTT Acting President ________________ R. B. CLEAVER Acting Justice of Appeal For appellant : A. M. Chobokoane For respondent : M. A. Kumalo