Marhule v Minister of Home Affairs and Others (J533/21) [2021] ZALCJHB 169 (23 July 2021)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not reportable

Case No: J533/21

In the matter between:

RONNEY MARHULE

Applicant

and

MINISTER OF HOME AFFAIRS

First Respondent

DIRECTOR-GENERAL OF THE DEPARTMENT OF

HOME AFFAIRS

Second Respondent

CHRIS MUDAU

Third Respondent

Decided in Chambers:

Delivered: This judgment was handed down electronically by circulation to the parties' legal representatives by email and publication on the Labour Court’s website. The date and time for hand-down is deemed to

be on 23 July 2021 at 10:00

JUDGMENT – APPLICATION FOR LEAVE TO APPEAL

TLHOTLHALEMAJE, J

Introduction:

[1] The applicant’s urgent application in which he had sought certain declaratory and interdictory relief, was dismissed in a judgment delivered on 30 May 2021. The applicant has since filed an application for leave to appeal, which the Second Respondent has opposed.

[2] The principles applicable to applications for leave to appeal are trite. This Court must determine whether there is a reasonable prospect that another court (The Labour Appeal Court), would come to a different conclusion to that reached in the judgment that is sought to be taken on appeal[1]. The test whether to grant leave to appeal is stringently applied in the light of the high threshold set by section 17(1) of the Superior Courts Act[2].

[3] The Labour Appeal Court (LAC) has further cautioned that 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].

[4] At the core of the Applicant’s urgent application was a dispute whether the parties should be allowed legal representation in the internal disciplinary proceedings. The full background to the urgent application is set out in my judgment and no purpose would be served by repeating same. The issues raised in the leave to appeal, and the grounds relied upon have been extensively dealt with in that judgment. Furthermore, the Second Respondent has addressed each ground upon which leave to appeal is sought.

[5] In the light of the above considerations and applicable legal principles, having reflected on my judgment, and further having had regard to the submissions for and against leave to appeal, there is no basis for any conclusion to be reached that the factual matrix of this case will receive a different treatment from the LAC. There are no legitimate disputes on the law raised nor are there any novel issues that deserves the attention of the LAC. Accordingly, the leave to appeal enjoys no reasonable prospects of the LAC coming to any different conclusion to that arrived in my judgment.

[6] The urgent application and the relief sought therein, combined with this application for leave to appeal had no merit, and this matter ought not have come this far. In that regard, the requirements of law and fairness dictate that the First Respondent (Department)

not be burdened with the costs of this application.

[7] Accordingly, the following order is made;

Order:

1. The application for leave to appeal is dismissed with costs.

___________________

Edwin Tlhotlhalemaje

Judge of the Labour Court of South Africa

[1] See Section 17 of the Superior Court Act 10 of 2013, which provides: ‘(1) Leave to appeal may only be given where the judge or judges are of the opinion that (a) (i) the appeal would have a reasonable prospect of success; or (ii) there is some other compelling reason why the appeal should be heard, including conflicting judgments on the matter under consideration; (b) the decisions sought on appeal does not fall within the ambit of section 16(2)(a); and (c) where the decision sought to be appealed does not dispose of all the issues in the case, the appeal would lead to a just and prompt resolution of the real issue between the parties.’

[1] See Section 17 of the Superior Court Act 10 of 2013, which provides:

‘(1) Leave to appeal may only be given where the judge or judges are of the opinion that

(a) (i) the appeal would have a reasonable prospect of success; or

(ii) there is some other compelling reason why the appeal should be heard, including conflicting judgments on the matter under consideration;

(b) the decisions sought on appeal does not fall within the ambit of section 16(2)(a); and

(c) where the decision sought to be appealed does not dispose of all the issues in the case, the appeal would lead to a just and prompt resolution of the real issue between the parties.’

[2] See The Mont Chevaux Trust v Tina Goosen and 18 others 2014 JDR 2325 (LCC) at para 6; Mgezeni Gasbat Nxumalo v the National Bargaining Council for the Chemical Industry (NBCCI) and Others JR1170 /2013 unreported; Nannen and Others vs Momentum and Others (6796/05, 2275/05) (2017] ZAGPPHC 433 (14 June 2017)

[3] Martin and East (Pty) Ltd v NUM (2014) 35 ILJ 2399 (LAC)