Head of Department: North-West Department of Agriculture, Conservation and Environment and Another v Malambo and Another (1202/06) [2006] ZANWHC 1 (1 January 2006)

IN THE HIGH COURT OF SOUTH AFRICA

BOPHUTHATSWANA PROVINCIAL DIVISION

CASE NO.: 1202/06

In the matter between:

THE HEAD OF DEPARTMENT: NORTH WEST DEPARTMENT

OF AGRICULTURE, CONSERVATION & ENVIRONMENT 1ST APPLICANT

MATTHEWS FESEKO N.O. 2ND APPLICANT

and

LOVEJOY MALAMBO 1ST RESPONDENT

MOGOMOTSO KGANTSI 2ND RESPONDENT

APPLICATION FOR LEAVE TO APPEAL

JUDGMENT ON APPLICATION FOR LEAVE TO APPEAL

LANDMAN J:

[1] The Head of Department: NW Department of Agriculture, Conservation and Environment (“the Head’) applies for leave to appeal against the whole of my judgment handed down on 16 November 2006.

[2] The Head relies on 11 grounds set out in his notice of application dated 23 November 2006.

[3] I am of the view that there is no reasonable prospect that another court would come to a different conclusion based on those grounds.

[4] That, however, is not the end of the matter. On 8 May 2008 the Head filed additional grounds to found the application for leave to appeal. These grounds read as follows:

“1. The learned Judge erred in holding that clause 2.7(2)(c) of the Senior Management Service Handbook (“the Handbook”) is peremptory.

2. The learned Judge erred in failing to hold that the handbook contains guidelines from which there may be reasonable departure, dependent upon the exigencies of the case.

3. Alternatively, the learned Judge erred in holding that clause 2.7(2)(c) is peremptory in the sense that any failure to hold a disciplinary hearing within sixty days of a member’s suspension has the consequence that the employer is thereafter precluded from conducting a disciplinary hearing.

4. The learned Judge accordingly erred in holding that as a result of the employer’s failure to hold the disciplinary hearing within sixty days of the suspensions, the suspensions were invalid.

5. The learned Judge accordingly erred in granting the relief in paragraphs 2, 3 and 4 of the order.”

[5] Mr Hitge, who appeared on behalf of the applicants in the main application, (“the employees”) objected to the filing of the additional grounds. It seems to me that it is open to an applicant for leave to appeal to rely on additional grounds save only that the other side is not prejudiced thereby to the extent that such prejudice cannot be cured by an order as to costs.

[6] The employees will not be prejudiced by the additional grounds. However, it is true that the common cause basis upon which the application was decided is challenged. It is alleged that I was not bound by the Head’s express acceptance that clause 2.7(2)(c) of Chapter 7 of the SMS handbook was peremptory. Mr Hitge has submitted that this was a factual admission and that the parties are bound by it.

[7] Mr Watt-Pringle SC, who appears for the Head, submitted on the other hand that the concession was one of law and that consequently neither the Head nor the court was bound by it. There is a reasonable possibility that another court would accept this line of reasoning and arrive at a different conclusion to mine.

[8] On the facts presented I am unable to hold that the matter in dispute is of purely academic interest, even though one of the appellants has resigned and the other is performing his duties.

[8] In the premises I am of the opinion that leave to appeal to a full bench of this Division should be granted. I do not intend making costs of the application for leave to appeal costs in the appeal. It would be more appropriate to reserve the costs for the decision of the court of appeal.

[9] In the result:

1. Leave is granted to the first respondent in the main application to appeal against the whole of my judgment dated 16 November 2006 to the full bench of this Division.

2 The costs of the application for leave to appeal are reserved for decision by the court of appeal.

___________________

A A LANDMAN

JUDGE OF THE HIGH COURT