Polokwane Municipality v South African Local Government Bargaining Council and Others (JR2694/18) [2021] ZALCJHB 297 (22 September 2021)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

JR 2694/18

In the matter between:

POLOKWANE MUNICIPALITY Applicant

and

SOUTH AFRICAN LOCAL GOVERNMENT

BARGAINING COUNCIL First

Respondent

M.E. PHOOKO N.O. Second Respondent

RUDDOCK R. NDOU 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 22 September 2021 at 14:00

JUDGMENT: LEAVE TO APPEAL

TLHOTLHALEMAJE, J

[1] This Court on 11 June 2021, delivered a judgement wherein the arbitration award issued by the second respondent was reviewed and set aside. For the sake of convenience, the parties in this application will remain cited as they were in the main review application. The Court in its judgment had substituted the second respondent’s award with an order that the dismissal of the third respondent was fair.

[2] On 18 August 2021, the third respondent filed an application for leave to appeal against the whole judgment and order of this Court. The application was filed belatedly and was accompanied by an application for condonation. The application for condonation remains unopposed. Furthermore, the third respondent has not complied with rule 30(3A) of the Rules of this Court read with paragraph 15.2 of the Practice Manual by filing written submissions in support of the application for leave to appeal. Notwithstanding the above omissions, and in order to expedite the finalisation of this matter, I propose to deal with both the application for condonation and the merits of the application for leave to appeal.

[3] The third respondent avers that the application for leave to appeal was filed some 21 days outside of the prescribed timeframes. Having had regard to the averments made in regard to extent of the delay, the explanation proffered in that regard, and other considerations applicable to condonation applications, I am satisfied that good cause for the non-compliance with the timeframes was shown, and the that the interest of justice dictate that condonation be granted.

[4] In regards to the merits of the application for leave to appeal, the third respondent contends that the Court erred in various respects in arriving at its conclusions and order, more specifically;

a) in accepting that his signature affixed to the quotation document in question had constituted an authorisation of the work that was to be completed on behalf of the applicant in circumstances where his mere signature did not constitute such authorisation;

b) in concluding that the third respondent was guilty of misconduct on account of potential irregular expenditure, this is in view of the fact that there was no work which was carried out by the service provider and which the Municipality was liable for payment as a result of the purported signature. The third respondent further contends that the Court erred in its conclusion that the third

respondent was guilty of the misconduct of negligence and dereliction of duty.

c) the Court misdirected itself in its failure to consider the totality of the evidence which demonstrated that the contract with a service provider (Velaphanda) was extant, in view of its compliance with the SCM processes and that the said service provider formed part of existing service level agreements with the Municipality and as such the Court committed a misdirection in concluding that the third respondent was guilty of misconduct for unauthorised and/or irregular expenditure.

[5] It is not necessary to elaborate more on the grounds upon which leave to appeal is sought. This is so in that the history and factual matrix of the review application was dealt with sufficiently in the judgment which is the subject of an application for leave to appeal.

[6] The principles applicable in respect of applications for leave to appeal are trite as codified in terms of section 17(1) of the Superior Courts Act[1]. They entail an assessment of whether there are reasonable prospects that the appeal would succeed and/or whether or not there are other compelling reasons why the appeal should be heard, including inter alia whether there are conflicting judgment on the subject-matter of the impugned judgment.

[7] Having reflected on my judgment and order, and further having had regard to the grounds upon which leave to appeal is sought, it ought to be concluded that there is no basis upon which it can be said that the application for leave to appeal enjoys any reasonable prospects of success. The grounds upon which leave to appeal is sought are issues that have been dealt with at length in the judgment, and this application does not raise any novel issues either of law or fact that might require the attention of the Labour Appeal Court, and accordingly, the following order is deemed appropriate;

Order:

1. The applicant’s application for leave to appeal is dismissed.

2. There is no order as to costs.

Edwin Tlhotlhalemaje

Judge of the Labour Court of South Africa

[1] Act 10 of 2013