Independent Municipal & Allied Trade Union obo Silver & 3 Others v Dawid Kruiper Local Municipality and Others (J 4023/2018) [2022] ZALCJHB 274 (4 October 2022)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case No: J 4023/2018

In the matter between:

INDEPENDENT MUNICIPAL & ALLIED

TRADE UNION obo I SILVER & 3 OTHERS

APPLICANT

And

THE DAWID KRUIPER LOCAL MUNICIPALITY

1ST RESPONDENT

L, DE WEE

2ND RESPONDENT

B, NAPAKADI

3RD RESPONDENT

O, JOB

4TH RESPONDENT

V, BIYO

5TH RESPONDENT

F, NZONDO

6TH RESPONDENT

E, NTAKATSANDE

7TH RESPONDENT

M, BASSOON

8TH RESPONDENT

S, VAN SCHALKWYK

9TH RESPONDENT

E, SOKABA

10TH RESPONDENT

A, SNYDERS

11TH RESPONDENT

M, SANDLANA

12TH RESPONDENT

C, MALGAS

13TH RESPONDENT

Z, MOYO

14thRESPONDENT

E, SWARTZ

15th RESPONDENT

A, FAKU

16TH RESPONDENT

B, JACK

17TH RESPONDENT

D, VAN WYK

18TH RESPONDENT

F, FUBU

19TH RESPONDENT

R, COETZEE

20TH RESPONDENT

J, GATYENI

21ST RESPONDENT

Decided in chambers

Delivered: 04 October 2022

(In view of the measures implemented as a result of the Covid 19 pandemic, this judgement was handed down electronically by circulation to the parties’ representatives, by email. The date on which the judgment is delivered is deemed to be 04 October 2022.)

RULING: APPLICATION FOR LEAVE TO APPEAL

VAN NIEKERK, J

[1] The applicants apply for leave to appeal against a judgment delivered by this court on 26 August 2022. The judgment concerned the remedy that ought appropriately to be granted after the parties had agreed to an order in terms of which the appointments of various of the respondents was declared unlawful. The applicants have subsequently and simultaneously applied to have the order rescinded on the basis that it was granted as a result of a mistake common to the parties; this ruling is concerned only with the application for leave to appeal. In essence, the applicant contends that the court had no jurisdiction to grant the order concerned, that it erred in granting the order by consent, and that it did so without having satisfied itself of the unlawfulness of the challenged appointments. The second respondent does not oppose the application, and abides by the decision of the court.

[2] The test to be applied is established by section 17 (1) of the Superior Courts Act, 2013. The court must determine whether the appeal would have a reasonable prospect of success, or whether there is some other compelling reason why the appeal should be heard. In Seatlholo and others v Chemical Energy Paper Printing Wood and Allied Workers Union and others (2016) 37 ILJ 1485, the court said the following:

… the use of the word “would” in s17 (1) (a) (i) is indicative of a raising of the threshold since previously, all that was required for the applicant to demonstrate was that there was a reasonable prospect that another court might come to a different conclusion (see Daantjie Community and others v Crocodile Valley Citrus Company (Pty) Ltd and another (75/2008) [2015] ZALCC 7 (28 July 2015). Further, this is not a test to be applied lightly – the Labour Appeal Court has had occasion to observe that this court ought to be cautious when leave to appeal is granted. The statutory imperative of the expeditious resolution of

labour disputes necessarily requires that appeals be limited to those matters in which there is a reasonable prospect that the factual matrix could receive a different treatment or where there is some legitimate dispute on the law.

[3] More precisely stated, the court must determine whether there is a reasonable prospect that the factual matrix would receive a different treatment or where there is some legitimate dispute on the law (see Martin & East (Pty) Ltd v NUM (2014) 35 ILJ 2399 (LAC); Acting National Director of Public Prosecutions & Others v Democratic Alliance In re: Democratic Alliance v Acting Director of Public Prosecutions & Others [2016] JOL 36123 (GP); Mothuloe Inc. Attorneys v The Law Society of the Northern Provinces & Another [2017} ZASCA 17 (22 March 2017), where the raising of the bar in applications for leave to appeal has been affirmed). In this court, there is an additional consideration. In the Martin & East judgment, Davis JA urged labour courts to take care to ensure a balance between expeditious dispute resolution and the rights of the party seeking leave to appeal.

[4] The application that served before the court concerned the review of the performance of a public function, a matter over which the court has jurisdiction in terms of section 158 (1)(h). The applicant union in these proceedings, who was not a party to the dispute or before the court when the matter was argued, now contends that the dispute is one that concerns the application and interpretation of a collective agreement that falls to be resolved in terms of section 24 of the LRA.

[5] The court’s jurisdiction is to be determined from the pleadings, and with reference to the facts that were before the court when the order was granted. It may well be that an applicant might formulate a claim and different ways and thereby bring it before a forum of his or her choice. The pleadings that served before the court established that the claim that the applicant selected to bring was in the form of a review, based on the principle of legality. Whether the same set of facts might give rise to a claim formulated on the basis of section 24 of the LRA as one concerning the interpretation of a collective agreement, is neither here nor there. Having said that, it would appear that the parties were not in dispute about the interpretation or the application of the SALGA agreement, what was in dispute was whether the municipality had acted ultra vires in making the appointments it did. There is thus no merit on the ground for appeal that the court lacked jurisdiction to entertain the review.

[6] In so far as the applicant’s contend that the order was erroneously or somehow unlawfully or invalidly granted without affording the union and its members an opportunity to be heard, the application was served on the union’s members but they chose not to oppose the proceedings. The order in terms of which the court declared certain appointments made by the municipality unlawful was made after deliberation by the legal representatives of those parties who were before the court, and reflected the basis on which they had resolved the dispute between them. The parties were thereafter invited to file affidavits setting out their own views on what a just and equitable order consequent on the declaration of invalidity should be, and there does not appear to be any suggestion that the court had erred in the exercise of its discretion given the facts that we properly put before it.

[7] In short, the application fails to meet the threshold for the granting of the appeal and stands to be dismissed. There is no reason why costs ought not to follow the result.

Order

1. The application is dismissed, with costs

André van Niekerk

Judge of the Labour Court of South Africa