Photocircuit SA (Pty) Ltd. v Roux NO and Another (473/89) [1991] ZASCA 11 (12 March 1991)

473/89 /mb

IN THE SUPREME COURT OF SOUTH

AFRICA

(APPELLATE DIVISION)

In the matter between:PHOTOCIRCUIT S A (PTY) LIMITED Appellant

and

ADV P E ROUX SC N O 1st RespondentC E DOUGLASS 2nd RespondentCORAM : HOEXTER, VIVIER, MILNE, KUMLEBEN JJA

et KRIEGLER AJA

HEARD : 12 MARCH 1991

DELIVERED : 12 MARCH 1991

TRANSCRIPT OF EXTEMPORE JUDGMENT DELIVERED IN COURT ON 12 MARCH 1991

HOEXTER JA/...

1 .

HOEXTER JA:

The appeal is dismissed with costs. Certain unsatisfactory and disquieting features call for comment.

On 30 November 1990 this court delivered

judgment in the matter of Photocircuit SA (Pty) Ltd vP P de Klerk NO and Others (the "De Klerk appeal").The present appellant was also the appellant in thatcase. One of the issues calling for decision in the DeKlerk appeal was whether in terms of s 23(1) of theLabour Relations Act, No 28 of 1956, the IndustrialCouncil had jurisdiction over the appellant. Afterhearing full argument and considering the relevantauthorities, this court decided the question againstthe appellant for reasons comprehensively set out in

the written judgment. The issue decided in the De

2/...2. Klerk appeal was, and is, the only one raised in the present appeal. On the face of it, the earlier decision disposes of the one issue in the present appeal.

The original heads of argument filed on

behalf of the appellant in this appeal were lodgedbefore delivery of the De Klerk judgment. Thismorning, however, supplementary heads of argument weresubmitted by Mr van Graan, who now appears on behalf ofthe appellant. One reads them with astonishment.There is no reference to the De 'Klerk judgment: onephrase obliquely suggests that counsel was aware of theearlier judgment when he drafted the supplementaryheads. (During argument Mr van Graan conceded this.)The single authority referred to is a text-book onAdministrative Law. Moreover, there is simply nothing

in them to indicate that counsel was aware of the stare

3/...3.decisis rule as it is to be applied to a decision of the Appellate Division which is sought to be reversed.Last but not least, the submissions in these heads do not attempt any critical analysis of the reasoning in the De Klerk judgment. In the main the argument now advanced is no more than a variation of the theme which was put forward and rejected in that judgment, and the submissions as today presented to us are in our judgment without substance.

This lamentable chronicle of events prompted Mr Duminy, who appeared for the second respondent, to ask that the costs of this hearing be awarded against the appellant on an attorney and client scale. If one were certain that the objectionable aspects of this appeal could be attributed to anything more than ineptitude this request would have merited serious

4/...4. consideration.

G G HOEXTER JA

VIVIER JA )

MILNE JA ) Concurred

KUMLEBEN JA )

KRIEGLER AJA)