Mashego v Mpumalanga Provincial Legislature and Others (J1259/16) [2016] ZALCJHB 487 (6 December 2016)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not reportable

Case no: J 1259/16

DIMAKATSO MASHEGO

Applicant

and

MPUMALANGA PROVINCIAL LEGISLATURE

First Respondent

SHERIFF: MBOMBELA

Second Respondent

FIRSTRAND BANK LIMITED

Third Respondent

Decided : In Chambers

Judgment: 06 December 2016

Summary: Application for leave to appeal. No prospects of success. Application dismissed with costs.

JUDGMENT: APPLICATION FOR LEAVE TO APPEAL

PRINSLOO, J

[1] This is an application for leave to appeal against the whole of the judgment of this Court handed down on 30 June 2016 in terms of which the Court dismissed the Applicant’s application to set aside a warrant of execution.

[2] The Applicant has set out its grounds for leave to appeal, which I have considered with the submissions made to support the application for leave to appeal and I do not intend to repeat them in detail. I deal with the main submissions herein below.

[3] The application for leave to appeal is opposed.

Test for leave to appeal

[4] It is trite that in order to be entitled to leave to appeal, an applicant in the application for leave to appeal must satisfy this

Court that it has reasonable prospects of success on appeal. In the matter of S v Smith[1] the Supreme Court of Appeal held as follows:

‘What the test of reasonable prospects of success postulates is a dispassionate decision, based on the facts and the law that a court

of appeal could reasonable arrive at a conclusion different to that of the trial court. In order to succeed, therefore, the

appellant must convince this court on proper grounds that he has prospects of succeed on appeal and that those prospects are not

remote but have realistic chance of succeeding. More is required to be established than that there is a mere possibility of success, that the case is arguable on appeal or that the case cannot be categorised as hopeless. There must, in other words, be a sound, rational basis for the conclusion that there are prospects of success an appeal.’

Grounds for leave to appeal

[5] The Applicant submitted an amended notice of leave to appeal and the grounds for appeal are that this Court misdirected itself by taking a narrow approach in its interpretation of ‘salary’ or ‘remuneration’ and the said approach caused the Court to fail to consider the factors of the matter in totality. In essence the Applicant’s case is that the attachment of his bank account was effectively attaching his salary and the First Respondent attached his bank account as a calculated measure to avoid a procedural step intended to protect the Applicant.

[6] The Applicant further submitted that the Court failed to take into account the wide ranging implication its order may have into the society at large, especially to the poor and vulnerable members of society. Apart from the fact that this could hardly be regarded as a ground for appeal, the order issued in casu has no implication that affects the society at large and the Applicant, earning an annual salary of R 1 221 709 and engaging in court litigation with his employer, can by no stretch of the imagination be described as a poor and vulnerable member of society.

[7] The Applicant’s reliance on section 65 of the Magistrate’s Court Act that provides protection in cases of attachment of emoluments and garnishee orders by judgment creditors as well as the Constitutional Court judgment in the matter of University of Stellenbosch Legal Aid Clinic v Minister of Justice and Correctional Services and others is misplaced.

[8] This is certainly not a case where the public needed protection against unscrupulous creditors. This is a case where the Applicant instituted litigation and was involved in litigation with his employer and in the end the Court awarded costs orders against him, the costs orders were taxed and the employer is seeking the execution of the said costs orders.

[9] The Applicant indicated his intention to apply for leave to file a replying affidavit and to amend his notice of motion during the

hearing of the appeal. This intention is ill considered and should not be taken one step further.

[10] The First Respondent submitted that there was no justification in law for the setting aside of the writ of execution as it was issued in execution of valid orders of this Court, the validity of which remained unchallenged and not disputed by the Applicant.

[11] The First Respondent further submitted that the Applicant failed to demonstrate that there is a reasonable possibility of the Labour

Appeal Court reaching a different conclusion and there are no prospects of success on appeal. The First Respondent seeks the dismissal of the application for leave to appeal with costs.

[12] I do not for purposes of this judgment intend repeating my findings in the judgment save to state that I have had opportunity to revisit all of my findings.

[13] Applying the relevant principles and considering the grounds for appeal and the submissions made, I am not persuaded that the Applicant has reasonable prospects of success on appeal and I am not persuaded that there is any reasonable prospect that another court will come to a different result.

[14] In my view there is no merit in the grounds for appeal and this application should fail.

Order

[15] I therefore make the following order:

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

_________________

Connie Prinsloo

Judge of the Labour Court of South Africa

[1] 2010 (1) SACR at 576 (SCA). See also Zweni v Minister of Law and Order 1993(1) SA 523 (A).