Pule v North West Parks and Tourism Board and Others (JS881/2009) [2023] ZALCJHB 346 (16 October 2023)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Case No: JS881/2009

Not Reportable

In the matter between:

GLADYS PULE

Applicant

And

NORTH WEST PARKS AND TOURISM BOARD

First Respondent

MR ISHMAEL KGOKONG (ACTING CEO) Second

Respondent

MS BETTY KEGAKILWE

Third Respondent

Decided in Chambers

Delivered: This judgment was handed down electronically by circulation to the parties and / or their legal representatives by email. The date and time for handing-down is deemed 10h00 on 16 October 2023.

Judgment

ALLEN-YAMAN AJ

[1] Judgment in the above matter having been handed down on 20 July 2023, on 11 August 2023 the applicant initiated an application for leave to appeal in which she sought an order in the following terms,

‘1. Granting leave to appeal against the judgment and order of the Labour Court under case number JS881/09 (Section 77(3)) handed down on 20 July 2023.

2. Setting aside the order of the Labour Court.

3. Replacing the Labour Court with;

4. Leave to appeal is granted.’

[2] Rule 30(1) of the Labour Court Rules requires an application for leave to appeal to be initiated by way of ‘a statement of the grounds’ on which leave to appeal is sought. The applicant has done so by way of a substantive application, constituting a Notice of Motion supported by affidavit.

[3] The applicant failed to deliver submissions in terms of Rule 30(3A), whilst the first respondent did so on 23 August 2023. In response to the first respondent’s Rule 30(3A) submissions the applicant delivered a ‘Notice of Objection’ in which she objected thereto by way of a further substantive application in terms of Rule 7(3). In that application she contended that,

‘In this application, the Applicant objection against the Respondents’ opposing application and seek the application be declared invalid on the basis that it was served unsigned to the Applicant.’

[4] The issue with which the applicant has taken with the first respondent’s Rule 30(3A) submissions has evidently arisen as a result of her failure to have appreciated that an application for leave to appeal does not follow the form of an application in terms of Rule 7. As such, the delivery of affidavits is not only not required, the delivery of affidavits is not contemplated at all.

[5] As was previously stated, in initiating her application for leave to appeal, the applicant was required to do no more than to have delivered a Notice of Application for Leave to Appeal in which the grounds upon which she sought leave to appeal were stated. She was thereafter required to have delivered her submissions in terms of Rule 30(3A). The first respondent, in the event that it wished to oppose the granting of leave to appeal, was required to do likewise.

[6] As there is no requirement that submissions in terms of Rule 30(3A) are to be signed, the first respondent’s submissions are accordingly not ‘invalid’.

[7] In addition to having objected to the first respondent’s submissions in terms of Rule 30(3A) as aforesaid, the applicant delivered a replying affidavit in response thereto.

[8] Whilst the applicant’s application for leave to appeal is far removed from the requirements of Rule 30, in view of the fact that the applicant represents herself and the first respondent has responded to her application on its merits, her application for leave to appeal has been considered.

[9] Having considered the various grounds advanced by the applicant in her application for leave to appeal, and save for the unwarranted concern expressed by the applicant that the judgment of 20 July 2023 was not authentic, this court finds that the issues raised by her constitute no more than the repetition of arguments previously raised, which have been considered and rejected by this court in its judgment.

[10] S17(1) of the Superior Courts Act, 2013 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;’

[11] This court does not find that the applicant has met the threshold required for the granting of leave to appeal, as set out in s17(1) of the Superior Courts Act, 2013; it is not of the opinion that the proposed appeal would have any reasonable prospects of success, and nor is there is any other compelling reason to grant leave to appeal.

[12] The applicant’s application for leave to appeal will accordingly be refused.

[13] The first respondent has asked that the application be refused, with costs. The basis upon which it seeks a costs order against the applicant is,

‘The Applicant purportedly relies on contractual remedies, as a result of which this Court does not sit as a court of equity but as a Court of law instead, and the applicant ought to be directed to pay the costs of this application for Leave to Appeal.

The reasons for the judgment of the Court a quo had been comprehensive and cogent, and the earlier basis upon which the Court a quo declined to make a costs order against the Applicant, does no longer exist.’

[14] This court is, in terms of s162, enjoined to make orders for costs according to the requirements of law and fairness. The considerations to be taken into account in the determination of that issue are specified in s162(2)(b) and which include the conduct of the parties in proceeding with or defending the matter before this court. To this may be added the various principles which have been developed over time, including the consideration that costs orders may damage ongoing employment or bargaining relationships, and that individual employees who seek to vindicate their rights ought not to be mulcted in costs orders lightly.

[15] This court does not concur with the first respondent that as the applicant’s claim is contractual the court sits as a court of law and not a court of equity, and that accordingly the ordinary principles applicable to orders for costs do not find application. Whilst the applicant did indeed seek to enforce (at least partly) a contractual right, not predicated on the LRA itself, certain of her claims were nonetheless premised on her assertion that such contractual rights derived from both the order of reinstatement granted in her favour as well as the Basic Conditions of Employment Act, 1995. That is not, however, the end of the enquiry.

[16] The grounds upon which the applicant seeks to appeal the judgment evince that the applicant has failed to give any, let alone proper, consideration to the reasons given by this court in its judgment for having refused to have granted her the relief sought by her.

[17] Moreover, this application for leave to appeal was but the last in a litany of litigation in which the applicant has obliged the first respondent to participate:

17.1 The applicant, with other employees, challenged the fairness of their dismissals under JS881/09. In this, they were successful, and this court ordered their reinstatement on 2 June 2015.

17.2 The applicant was dissatisfied with the limited retrospectivity thereof and applied for leave to appeal, which application was seemingly not prosecuted to finality.

17.3 The applicant launched her first contempt application in 2018 which was struck from the roll with costs on 17 August 2018.

17.4 The applicant launched a second contempt application which was dealt with on 15 March 2019. The first respondent’s representative was found not to have been guilty of contempt of court.

17.5 The applicant initiated further contempt proceedings in 2020 and obtain an ex parte order, in accordance with the provisions of the Practice Manual, on 28 January 2020. That application served before this court on three occasions, on each occasion having been removed from the role as a result of her various failures to have prosecuted it properly. That application was never finalised.

17.6 Finally, the applicant launched the application which resulted in the judgment which is now sought to be appealed.

[18] Given the plethora of litigation to which the first respondent has been subjected, the inescapable conclusion to be reached is that the applicant is, without justification, litigating vexatiously.

[19] This is compounded by the fact that the first respondent is a publicly funded entity. As such its limited resources ought to be capable of application to the purposes for which it was established, which cannot be done when it is obliged to waste those resources opposing what amounts to no more than frivolous litigation.

[20] In addition, the applicant herself does not appear to be concerned about the possible effect which her continuous litigation may have on her relationship with the first respondent, her employer.

[21] This court is accordingly of the view that the ordinary principles in labour disputes do not, in the present matter, militate against an order of costs against the applicant, and that the considerations mentioned previously warrant this court exercising its discretion in favour of granting the order sought by the first respondent in relation to its costs

Order

1. The application for leave to appeal is refused.

2. The applicant is ordered to pay the first respondent’s costs.

Kelsey Allen-Yaman

Acting Judge of the Labour Court of South Africa

Representatives:

Applicant: The applicant, in person

Respondents: Mr M G Hitge, briefed by the State Attorney