Public Servants Association of South Africa and Others v Member of the Executive Committee: Health, Gauteng Provincial Government (JS 589/15) [2020] ZALCJHB 236 (21 October 2020)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not reportable

Case No: JS 589/15

In the matter between:

PUBLIC SERVANTS ASSOCIATION OF SOUTH AFRICA Applicant

MALULEKA AND OTHERS

Second – Further Applicants

and

MEMBER OF THE EXECUTIVE COMMITTEE: HEALTH,

GAUTENG PROVINCIAL GOVERNMENT Respondent

Decided in Chambers

Delivered: This judgment was handed down electronically by circulation to the parties' legal representatives by email. The date and time for hand-down is deemed to be 21 October 2020 at 16:00

JUDGMENT

TLHOTLHALEMAJE, J

[1] Following protracted trial proceedings, a judgment and order was delivered on 23 April 2020 in the following terms;

1. The dismissal of Messrs Vincent Tshikhudu, Morris Matika, Richard Nkosi, Brian Mabiletja, and Ms Sylvia Mmeti was substantively and procedurally unfair.

2. The Respondent is ordered to reinstate the above-mentioned individuals in its employ with retrospective effect, and on terms and conditions no less favourable than those as applicable to their employ on 4 November 2014.

3. The dismissal of the other individual applicants as identified in Annexure ‘A’ to the Applicants’ Statement of Case, was substantively fair but procedurally unfair.

4. The Respondent is ordered to pay to each of the individual applicants as in (3) above, compensation equal to three months’ salary calculated at their rate of pay as applicable on 4 November 2014.

5. The Respondent is ordered to pay the costs of the first day of the trial proceedings on 18 February 2019.

6. No further order as to costs is made.

[2] For the sake of convenience, and for the purposes of this application for leave to appeal, the parties shall remain cited as they were in the main judgment. In essence, there are three applications for leave to appeal in respect of the same judgment and order.

[3] Some few basics in regards to applications for leave to appeal need to be restated. Under Rule 30(2) of the Rules of this Court, if leave to appeal has not been made at the time of judgment or order, an application for leave must be made and the grounds for appeal furnished within 15 days of the date of the judgment or order against which leave to appeal is sought, except that the court may, on good cause shown, extend that period.

[4] Rule 30 must be read together with clause 15.2 of the Practice Manual of this Court, which provides that within 10 days of the filing of the application for leave to appeal, the party seeking leave must file its submissions in terms of Rule 30(3A) and the party opposing the leave must file its submissions five days thereafter. An application for leave to appeal will be decided by the judge in Chambers on the basis of the submissions filed in terms of Rule 30 (3A), unless the judge directs that the application be heard

in open court.

[5] To the extent that the above procedural requirements and timeframes are adhered to, the legal position in regards to leave to appeal is fairly settled emanating from the provisions of section 17(1) of the Superior Courts Act[1]. These provisions have received attention in numerous decisions, and it has been held that the use of the word “would” in section 17(1)(a)(i) of the Superior Courts Act denotes the raising of the threshold, as

previously, all that was required for the applicant to demonstrate was that there was a reasonable prospect that another court might come to a different conclusion[2].

[6] As stated in Fair Trade Tobacco Association, the Court in considering the application for leave to appeal, must remain cognizant of the higher threshold that needs to be met before leave

to appeal may be granted, as there must exist more than just a mere possibility that another court, will, not might, find differently on both facts and law[3].

[7] Equally of relevance when considering such applications is that this Court ought to be cautious when leave to appeal is granted, as 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 will receive a different treatment or where there is some legitimate dispute on the law[4]. The Supreme Court of Appeal has also added its cautionary voice, and pointed out that the need to obtain leave to appeal is a valuable tool in ensuring that scarce judicial resources are not spent on appeals that lack merit[5].

[8] Against the above legal framework and procedural requirements, I will proceed and deal with each application. The trial proceedings took about thirteen days. The material background, the evidence, the arguments and the Court’s conclusions are all set out in the judgment and thus will not be repeated herein.

The Respondent’s application:

[9] The first application was launched on 22 May 2020 by the respondent, and is limited to the Court orders under 3 and 4 as above. The application was filed two court days outside of the 15 day period stipulated in Rule 30(2). The submissions were equally belated, having been filed on 9 June 2020, some two days outside of the stipulated 10 days period.

[10] The respondent sought condonation for the late filing of the notice of application for leave to appeal. It essentially attributes the delay to the advent of the lockdown resulting from the COVID-19 pandemic, at around the same time that the judgment was delivered. Clearly the delay as indicated above is insignificant, and I am satisfied that the interests of justice dictate that condonation be granted,

[11] The respondent’s application for leave to appeal was opposed by the PSA on behalf of the individual applicants. The respondent takes issue with the Court’s finding that the dismissal of the identified individual applicants was procedurally unfair, and relies on a number of authorities for the proposition that given the circumstances of the case, the application of the audi alterem partem rule would not have made any difference.

[12] In opposing the application, the PSA correctly pointed out that none of the cases cited by the respondent are of assistance to it, in that, in none of them was it held that there should be no hearing held or ultimatum issued at all, as each case was to be dealt with in regards to its own circumstances, with the ultimate test being whether the employees were afforded some form of a fair hearing.

[13] The second ground of appeal advanced on behalf of the respondent is ridiculous and unsustainable in law. The respondent had contended that the Court had misdirected itself in that the applicants only sought retrospective reinstatement. It further contended that no evidence was led in regards to the alternative relief, in circumstances where gravity of the reasons for the dismissal and its budgetary constraints ought to have been taken into account.

[14] In opposing the application, the applicants have correctly pointed out to the discretionary powers of this Court under the provisions of section 193(2) when considering relief. In particular, section 193(2)(d) prohibits reinstatement where the dismissal was only unfair on account of the employer having failed to follow a fair procedure. There is no requirement that the relief claimed in the pleadings in the form of reinstatement is all or nothing. The Court is accordingly entitled or compelled by these provisions to grant compensation where the dismissal was only procedurally unfair, even if such a remedy was not pleaded in the alternative. The budgetary constraints of the employer such as the State, hardly play any role when considering the amount of compensation. In any event, and as correctly pointed out on behalf of the applicants, the respondent has not in clear terms challenged the amounts of compensation granted by the Court.

[15] It follows in the light of the above considerations that there are no reasonable prospects that the Labour Appeal Court will find differently on both the facts and law, and that the application ought to be dismissed.

The PSA application:

[16] The second application for leave to appeal was launched by the PSA on 23 June 2020 and the submissions in that regard were only filed on 13 August 2020. This application is in respect of the court’s orders related to the substantive fairness of some of the individual applicants’ dismissal, and compensation amounts the respondent was ordered to pay.

[17] Clearly the notice of application for leave to appeal as well as the submissions in that regard were filed belatedly. The application is about 23 days out of time, whilst the submissions were filed some 30 days out of time. The PSA conceded to having received a copy of the judgment on the date of its delivery. Other than also blaming Covid-19 and the national lockdown, the PSA contends that it had difficulties in informing its members of the judgment, and the matter was further delayed by having to obtain the Union’s senior management’s permission to proceed with an appeal, which was only obtained on 3 June 2020.

[18] It is not necessary to deal with all the other issues raised in seeking condonation, other than to state that no effort was made to deal with each aspect of the delay. Be that as it may, and having had regard to the circumstances of this case, it is my view that the interests of justice dictate that condonation be granted.

[19] The PSA contends that the Court erred and misdirected itself in finding that the dismissal of some of the individual applicants’ dismissal was substantively fair, and when also making an award of compensation in respect of some of the individual applicants. It was contended that the Court erred since the dismissals, which the Court found to have been fair, were not preceded by any form of disciplinary hearings or any ultimatums.

[20] At the core of the grounds upon which leave to appeal is sought are a variety of factual findings made by the Court in the light of the evidence presented and the documentary material relied upon. These issues raised and relied upon in seeking leave to appeal were dealt with at length in the trial proceedings and in the judgment. Having reflected on my judgment and the submissions made by the PSA, I am of the view that the grounds do not raise any novel issues or novel points of law from which it can be concluded that the Labour Appeal Court could give these a different treatment, and arrive at a different outcome.

The Maluleke and others’ application:

[21] Notwithstanding the fact that the PSA initially represented all the individual applicant, it appears that some of those individuals have broken ranks, as on 1 July 2020, a third application was launched by the individual applicants (Maluleke and two others). The application was clearly belated and condonation for the late filing was also sought. Significantly, the PSA or its attorneys of record have not withdrawn as representatives of these three individuals, and it is not clear as to when these individuals’ new attorneys (Masingi Attorneys) came on record, and if so when, as there is no such notice on file.

[22] The application having been filed on 1 July 2020, it is about 32 days out of time. The application for condonation was deposed to by the attorney (Masingi). He also attributes the delay to Covid-19 and the subsequent lockdown, contending also that this Court was ‘completely closed during level 4 and 5. He averred that there was an endeavour to deliver the application on the due date, but this could not be done as the individual applicants could not come together or give instructions, as they were not allowed to leave their homes or provinces due to the lockdown. Having had regard to these submissions and the confirmatory affidavits deposed to by the individual applicants, I am of the view that good cause has been shown and further that the interests of justice dictate that condonation be granted.

[23] Maluleke and the others seek leave to appeal on the grounds that the Court erred in not finding that their dismissal was both procedurally and substantively unfair; that the Court erred in finding that three months’ compensation was equitable; and that the Court erred in not finding that the procedural irregularities were of such a gross and grave nature as to have vitiated the substantive fairness of the dismissal.

[24] Again, as was with the PSA application, Maluleke and others’ grounds upon which leave to appeal is sought relate extensively to the factual findings made by the Court, which issues were dealt with at length in the judgment. These grounds, as in the PSA application, do not raise any novel or legal issues different from what was already dealt with in the judgment. Thus, having had regard to the submissions made, and further having reflected on my judgment, I conclude that no case was made out for leave to appeal, and there is no basis for any finding to be made that there is a reasonable prospect that the factual matrix of this case could receive a different treatment by the LAC, nor are there any legitimate disputes on the law that deserves the attention of the LAC.

[25] I have further had regard to the requirements of law and fairness and I am of the view that no costs order should be made in respect of all three applications before the Court.

[26] Accordingly, the following order is made;

Order:

1. The late filing of the Applicants’, the Respondent’s, and Maluleke and others’ applications for leave to appeal is condoned.

2. The Applicants’ application for leave to appeal is dismissed.

3. The Respondent’s application for leave to appeal is dismissed.

4. The application for leave to appeal filed separately by Maluleke and others is dismissed.

5. There is no order as to costs in respect of all the applications.

___________________

Edwin Tlhotlhalemaje

Judge of the Labour Court of South Africa

[1] Act 10 of 2013, which provides that; Leave to appeal may only be given where the judge or judges concerned 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 decision 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 issues between the parties.

[1] Act 10 of 2013, which provides that;

Leave to appeal may only be given where the judge or judges concerned 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 decision 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 issues between the parties.

[2] See Fair Trade Tobacco Association v President of the Republic of South Africa and Others (21688/2020) [2020] ZAGPPHC 311 (24 July 2020) at paras 2 – 6; Seatlholo and Others v Chemical Energy Paper Printing Wood and Allied Workers Union and Others 2016) 37 ILJ 1485 (LC), where it was held that; ‘The traditional formulation of the test that is applicable in an application such as the present requires the court to determine

whether there is a reasonable prospect that another court may come to a different conclusion to that reached in the judgment that is sought to be taken on appeal. As the respondents observe, the use of the word “would” in s17(1)(a)(i) are indicative of a raising of the threshold since previously, all that was required for the applicant to demonstrate was that there was a reasonable prospect that another court might come to a different conclusion (see Daantjie Community and others v Crocodile Valley Citrus Company (Pty) Ltd and another (75/2008) [2015] ZALCC 7 (28 July 2015). Further, this is not a test to be applied lightly – the Labour Appeal Court has recently had occasion to observe that this court ought to be cautious when leave to appeal is granted, as should the Labour Appeal Court when petitions are granted. 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 (See the judgment by Davis JA in Martin and East (Pty) Ltd v NUM (2014) 35 ILJ 2399 (LAC), and also Kruger v S 2014 (1) SACR 369 (SCA) and the ruling by Steenkamp J in Oasys Innovations (Pty) Ltd v Henning and another (C 536/15, 6 November 2015).’

[2] See Fair Trade Tobacco Association v President of the Republic of South Africa and Others (21688/2020) [2020] ZAGPPHC 311 (24 July 2020) at paras 2 – 6; Seatlholo and Others v Chemical Energy Paper Printing Wood and Allied Workers Union and Others 2016) 37 ILJ 1485 (LC), where it was held that;

‘The traditional formulation of the test that is applicable in an application such as the present requires the court to determine

whether there is a reasonable prospect that another court may come to a different conclusion to that reached in the judgment that is sought to be taken on appeal. As the respondents observe, the use of the word “would” in s17(1)(a)(i) are indicative of a raising of the threshold since previously, all that was required for the applicant to demonstrate was that there was a reasonable prospect that another court might come to a different conclusion (see Daantjie Community and others v Crocodile Valley Citrus Company (Pty) Ltd and another (75/2008) [2015] ZALCC 7 (28 July 2015). Further, this is not a test to be applied lightly – the Labour Appeal Court has recently had occasion to observe that this court ought to be cautious when leave to appeal is granted, as should the Labour Appeal Court when petitions are granted. 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 (See the judgment by Davis JA in Martin and East (Pty) Ltd v NUM (2014) 35 ILJ 2399 (LAC), and also Kruger v S 2014 (1) SACR 369 (SCA) and the ruling by Steenkamp J in Oasys Innovations (Pty) Ltd v Henning and another (C 536/15, 6 November 2015).’

[3] At para 6

[4] See Martin & East (Pty) Ltd v NUM (2014) 35 ILJ 2399 (LAC)

[5] Dexgroup (Pty) Ltd v Trustco Group International (Pty) Ltd and Others 2013 (6) SA 520 (SCA); [2014] 1 All SA 375 (SCA) at para 24.