Langlois v Teraoka SA (Pty) Limited (J121/01) [2001] ZALC 226 (19 December 2001)

3

IN THE LABOUR COURT OF SOUTH AFRICA

HELD AT JOHANNESBURG

2001-12-19

Case No: J121/01

In the matter between:

VINCENT LANGLOIS Applicant

and

TERAOKA SA (PROPRIETARY) LIMITED 1st Respondent

SHAUN PATRICK HALL 2nd Respondent

ALBERTUS NAUDE 3rd Respondent

__________________

JUDGMENT

REVELAS J:

On 26 January 2001, I gave an order to the effect that:

The first, second and third respondents (the applicants in the application for leave to appeal) were interdicted and restrained from interfering with and/or preventing the applicant from having access to the premises and records the first respondent;

The second and third respondents were interdicted and restrained from preventing the applicant to perform his duties as an employee of the first respondent to wit the managing director of the first respondent; The first, second and third respondents were to pay the costs of the application.

Leave to appeal was noted on 30 January 2001. According to the uncontested affidavit of the applicant (respondent in the application for leave to appeal), the respondents permitted him to commence work on 26 January 2001, following the court order. On 7 February 2001, the applicant was given notice to attend a meeting of directors of the company to be held on 12 February 2001 where a proposal that the applicant be dismissed from his employment was to be considered. On 12 February 2001 the applicant attended the meeting and was by majority vote dismissed again. On the same date, a share holders meeting was held at which it was resolved that the applicant be removed as a director of the company and removed as chief executive officer and public officer of the company. On 7 March 2001, the applicant referred a dispute regarding his (second) dismissal to the CCMA for conciliation. On 3 April 2001, the conciliation hearing was held but the matter could not be resolved. A dispute regarding the above (second) dismissal had been referred to the Labour Court under Case Number JS757/01 and that matter is still pending. Despite the aforegoing, the respondents still persists in their stance that the order I gave, (supported by reasons), should be set aside on appeal. It is trite that leave to appeal will not be granted where the matter in dispute has become one of academic interest by the

time of appeal. Significantly, part of this principle is that where the only real issue is one of costs, costs already incurred prior to the appeal should not be taken into consideration. In African Guarantee Indemnity Company Ltd vs Van Schalkwyk & others (1956) 1 SA 322 (A) at 329, Haine vs Podlashoc & Nicholson (1933) AD 104 at 105 Per Beyers JA: Verder, is dit nie wenslik dat die koste wat reeds aangegaan is in aanmerking geneem moet word nie.

The aforesaid principle has now been endorsed in section 21A of the Supreme Court Act, 59 of 1959 (See: Premier Mpumahlanga en andere v Groblersdalse Statsraad 1998 (2) SA 1136 (AH), Coin Security Group (Pty) Ltd v SA National Union for Security Officers and others [2000] ZASCA 137; 2001 (2) SA 872 (SCA)).

In the Coin Security Group case (Supra), the employer was granted an interim interdict by the High Court, but on the return date the rule nisi was discharged. The employer was granted leave to appeal by the High Court but by the time the matter came before the Supreme Court of Appeal, the appeal was dismissed without regard to the merits on the basis that the dispute had become academic. The

employees in question had in the interim been dismissed formally. They challenge the validity of their dismissal in the Labour Court and their claim in this regard had been determined by both the Labour Court and by the Labour Appeal Court. Plewman JA stated that section 21A of the Supreme Court Act ... is an reformulation of principles previously adopted in our Courts in relation to appeals involving what were called abstract, academic or hypothetical questions And he concluded: The principle is one of long standing. In the case of Geldenhuys and Neetling v Beuthin 1918 AD 426 at 441 (as an example) it was said as follows by Innes CJ - after all, courts of law exists for the settlement of concrete controversies and actual finding of rights, not to pronounce upon abstract questions, or to advice upon different contentions, however important . This is a principle which is common also to other systems ... Having regard to the affidavit of the applicant, it is inconceivable what interest, other than costs, the respondents might have in an appeal. As demonstrated above, that is an irrelevant consideration does not on its own, justify the granting of leave to appeal. For this reason alone, leave to appeal should be refused. Insofar as the merits of the application is concerned, I stand by the reasons in my judgment, save to stress is that the respondents made no allegations which if accepted, would have shown that Mr. Hall had the necessary authority to dismiss the applicant and therefore he was reinstated on an urgent basis.

The aforesaid principle has now been endorsed in section 21A of the Supreme Court Act, 59 of 1959 (See: Premier Mpumahlanga en andere v Groblersdalse Statsraad 1998 (2) SA 1136 (AH), Coin Security Group (Pty) Ltd v SA National Union for Security Officers and others [2000] ZASCA 137; 2001 (2) SA 872 (SCA)).

In the Coin Security Group case (Supra), the employer was granted an interim interdict by the High Court, but on the return date the rule nisi was discharged. The employer was granted leave to appeal by the High Court but by the time the matter came before the Supreme Court of Appeal, the appeal was dismissed without regard to the merits on the basis that the dispute had become academic. The

employees in question had in the interim been dismissed formally. They challenge the validity of their dismissal in the Labour Court and their claim in this regard had been determined by both the Labour Court and by the Labour Appeal Court. Plewman JA stated that section 21A of the Supreme Court Act ... is an reformulation of principles previously adopted in our Courts in relation to appeals involving what were called abstract, academic or hypothetical questions

And he concluded:

The principle is one of long standing. In the case of Geldenhuys and Neetling v Beuthin 1918 AD 426 at 441 (as an example) it was said as follows by Innes CJ - after all, courts of law exists for the settlement of concrete controversies and actual finding of rights, not to pronounce upon abstract questions, or to advice upon different contentions, however important . This is a principle which is common also to other systems ...

Having regard to the affidavit of the applicant, it is inconceivable what interest, other than costs, the respondents might have in an appeal. As demonstrated above, that is an irrelevant consideration does not on its own, justify the granting of leave to appeal. For this reason alone, leave to appeal should be refused. Insofar as the merits of the application is concerned, I stand by the reasons in my judgment, save to stress is that the respondents made no allegations which if accepted, would have shown that Mr. Hall had the necessary authority to dismiss the applicant and therefore he was reinstated on an urgent basis.

In my view there is no reasonable prospect that another Court will came to a different conclusion. I make the following order:

The application for leave to appeal is dismissed with costs. ______ E. Revelas

In my view there is no reasonable prospect that another Court will came to a different conclusion. I make the following order:

The application for leave to appeal is dismissed with costs.

______

E. Revelas