Goba v Rand West City Municipality and Another (J1069/21) [2021] ZALCJHB 397; [2022] 3 BLLR 301 (LC) (27 October 2021)
Although the applicant does not meet the requirement of reasonable prospects of success for leave to appeal, the existence of conflicting judgments on the interpretation of regulation 6, specifically regarding when a disciplinary hearing commences, constitutes a compelling reason for the appeal to be heard. The...
Source-derived case information.
- Citation
- [2021] ZALCJHB 397
- Parties
- Applicant: Themba Goba; Respondent: Rand West City Municipality and Another
- Court
- Labour Court Johannesburg
- Jurisdiction
- South Africa
- Case Number
- J1069/21
- Procedural Posture
- Leave to Appeal / Application for Leave to Appeal Following Dismissal of Initial Application
- Outcome
- Leave to appeal is granted.
- Judges
- GN Moshoana
- Legal Topics
- Disciplinary Hearing Commencement, Conflicting Judgments, Leave to Appeal, Superior Courts Act, Collective Agreement Interpretation
Source-derived case record
Summary, issues, holding and outcome
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Parties
Themba Goba
Applicant
Rand West City Municipality and Another
Respondent
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Following Dismissal of Initial Application
Legal Issues
- 1 Whether leave to appeal should be granted despite lack of reasonable prospects of success.
- 2 Whether conflicting judgments on the commencement of a disciplinary hearing constitute a compelling reason to grant leave to appeal.
Ratio Decidendi
Although the applicant does not meet the requirement of reasonable prospects of success for leave to appeal, the existence of conflicting judgments on the interpretation of regulation 6, specifically regarding when a disciplinary hearing commences, constitutes a compelling reason for the appeal to be heard. The Labour Court judgments are divided between the view that the hearing starts with the sitting and the view that it commences upon service of the charge sheet. The Labour Appeal Court's decision in Matatiele, though based on a collective agreement, supports the latter interpretation. To resolve this conflict authoritatively, leave to appeal is granted.
Court Disposition
Leave to appeal is granted.
Orders
- The application for leave to appeal is hereby granted.
- There is no order as to costs.
Full Case Text
Judgment text and source record
31 paragraphs
IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case no: J 1069/21
In the matter between:
THEMBA GOBA Applicant
and
RAND WEST CITY MUNICIPALITY AND ANOTHER Respondents
Decided: (In Chambers)
Delivered: 27 October 2021 (via email to the parties)
Summary: Application for leave to appeal – where a party does not meet the requirements of section 17 (1) (a) (i) of the Superior Courts Act, 2013, leave to appeal may still be granted where there are conflicting judgments on the matter under consideration. Although the applicant lacks reasonable prospects, there are compelling reasons for the higher Court to hear the appeal and to authoritatively resolve the apparent conflict between, Moloto, Mngengo, Ntsimane and the judgment of this Court in casu. Held: (1) The application for leave to appeal is granted with no order as to costs.
JUDGMENT-LEAVE TO APPEAL
MOSHOANA, J
Introduction
[1] On 21 September 2021, this Court delivered a judgment in terms of which it dismissed the application of Themba Goba, the applicant. The applicant is displeased with the judgment and now seeks leave to appeal against the whole judgment. At the time of this judgment, there was no indication that the application is opposed by any of the respondents.
Evaluation
[2] The test whether leave to appeal should be granted remains that spelled out in section 17(1) of the Superior Courts Act[1]. In terms of section 17 (1) (a), there are two bases upon which a judge may grant leave to appeal; namely; (a) where the appeal would have reasonable prospects of success; or (b) where there is some compelling reason why the appeal should be heard, including conflicting judgments on the matter under consideration.
[3] Now, this Court takes a view that the appeal would not have reasonable prospects of success. However, there a three judgments of the Labour Court which conflict on the interpretation of regulation 6, particularly on the issue of when does a disciplinary hearing commence. Two of the judgments of the Labour Court[2] held that the disciplinary hearing starts at the time when the sitting of the hearing takes place. Two other judgments of the Labour
Court[3], including the impugned judgment held that the hearing commences when the charge sheet is served on the employee. It must be mentioned that the LAC in Matatiele found that the disciplinary hearing proceeds when a charge sheet is served on an employee. However, the LAC dealt with a collective
agreement, which in the view of the impugned judgment is similarly worded, as opposed to the regulation involved in this matter.
[4] Therefore, on the strength of section 17 (1) (a) (ii), this Court concludes that there is a compelling reason why the appeal should be heard. Accordingly, leave to appeal ought to be granted in this matter.
Order
[4] In the results, I make the following order:
1. The application for leave to appeal is hereby granted.
2. There is no order as to costs.
GN Moshoana
Judge of the Labour Court of South Africa
Appearances
None
[1] Act 10 of 2013. See Seathlolo and Another v CEPPWAWU and others [2016] 37 ILJ 1485 (LC)
[2] Mngengo and Moloto judgments.
[3] Ntsimane and Goba judgments.