Qonde v Minister of Higher Education, Science and Innovation and Others (J874/21) [2021] ZALCJHB 377 (8 October 2021)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: J874/21

In the matter between:

MR GWEBINKUNDLA FELIX QONDE Applicant

and

MINISTER OF HIGHER EDUCATION,

SCIENCE AND INNOVATION AND 2 OTHERS Respondents

Heard: 08 October 2021 (In Chambers)

Delivered: 08 October 2021 (via email to the parties)

Summary: Application for leave to appeal. The test remains that of reasonable prospects that another court will arrive at a different conclusion. An appeal lies against the order and not the reasons of the order. Awarding costs involves an exercise of discretion, which is only interferable on appeal if it is capricious, mala fide, and based on wrong principles. When the Labour Court considers an interdict, it is not exercising exclusive jurisdiction. Thus, the principle of costs following the results is capable of being applied. Held: (1) The application for leave to appeal is dismissed with no order as to costs.

JUDGMENT-LEAVE TO APPEAL

MOSHOANA, J

Introduction

[1] On 7 September 2021, this Court delivered a judgment in terms of which it dismissed an interdict that was sought by the applicant, Mr Qonde. The applicant is displeased with the judgment and now seeks leave to appeal against the whole judgment. The Minister of Home Affairs and the Minister of Higher Education, Science and Innovations duly oppose the application. Yet again, the President of the Republic of South Africa abides by the decision of this Court. However, the President contends that the leave to appeal shall, if granted, not have beneficial practical effect as the matter has since become moot.

Background facts pertinent to this application

[2] The relevant facts appertaining this dispute are flashed out in a detail in the impugned judgment. It is unnecessary for the purpose of this judgment to regurgitate those facts. Suffice to mention that on 6 September 2021, the applicant’s fixed term contract of employment ended due to effluxion of time. On 15 September 2021, the applicant launched the present application. As indicated above, the application is duly opposed.

Grounds for leave to appeal

[3] With reference to the application for leave to appeal filed in this Court on 15 September 2021, the present application is effectively grounded on four grounds, which can be summarised as (a) an error in relation to section 4 (3) of the Protected Disclosure Act (PDA)[1]; (b) an error in relation to the prejudice for having referred the unfair labour practice dispute in relation to demotion; (c) an error in relation to lack of connection between the suspension and the disclosures; and (d) an error in relation to the labour law position on costs.

Evaluation

[4] The test whether leave to appeal should be granted remains that spelled out in section 17(1) of the Superior Courts Act[2]. If an applicant fails to meet the test, like the applicant before me, leave should be refused.

[5] Before consideration is given to the grounds punted for in this application, it is appropriate to deal with some of the legal principles relevant to the present application. I do so now.

The question of mootness

[6] It is trite principle of law that a Court of law cannot deal with matters that are abstract; academic and which have no practical

benefit to litigants. The relief that the applicant pursued in this Court was that of a prohibitory interdict. The applicant contended

that his suspension amounted to an occupational detriment and he ought to have been allowed to continue to perform his duties. It was common cause during the hearing of the main application that the employment relationship of the applicant was governed by a fixed term contract. That fixed term contract ended on 6 September 2021[3]. A precautionary suspension, which is what was effected on the applicant, seeks to hold the operation of an employment relationship.

In this particular instance, the employment relationship, which was put on hold by the precautionary suspension – occupational

detriment –, was regulated by a fixed term contract of employment. Axiomatically the end of the fixed term contract of employment spells the end of the employment relationship. The practical effect thereof is that, even if the appeal Court arrives at a different conclusion than the one reached by this Court, the order to be made, being a prohibitive interdict and a direction for the applicant to resume duty, will have no beneficial practical effect to the applicant. In Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others[4], the Constitutional Court affirmed that a case is moot and therefore not justiciable if it no longer presents an existing or live

controversy, which should exist if the Court is to avoid giving advisory opinions on abstract propositions of law. The Labour Appeal

Court (LAC) in NEASA v MEIBC and others[5] embraced this principle. In embracing the principle, Sutherland JA, now JP, stated the following:

“[7] In my view, the mootness of this appeal is plain. The interdictory relief sought has been overtaken by events. The action which it was formulated to prevent has occurred. The relief which was sought is now perfectly academic

[7] Similarly, in casu, the relief sought by the applicant was overtaken by events. The employment relationship has ended. That being the case, it is

unnecessary to burden the appeal Court with a matter that will not present beneficial practical effects to the applicant. Section 16 (2) (a) (i) of the Superior Courts Act provides that when at the hearing of an appeal the issues are of such a nature that the decision sought will have no practical effect or result, the appeal may be dismissed on this ground alone. For this reason alone, leave to appeal the merits of this dispute must be refused. In due course, I shall deal with the issue of an appeal on the award of costs.

An appeal against the reasons

[8] It is settled law that an appeal only lies against an order as opposed to the substantive reasons of the order. In relation to section 4 (3) of the PDA, it is clear that this Court did not make an order that the provisions of the section found application in the matter before it. This Court specifically stated the following:

“[50] …Yet, when efforts in line with section 4 (3) of the PDA were made…

[9] In any event, the above constitute the reasons of the judgment as opposed to the order. The Supreme Court of Appeal (SCA) in Neotel (Pty) Ltd v Telkom SA SOC Ltd and others[6], had the following to say:

“[13] …The judgment or order was held to refer to a substantive judgment or order in terms of which the court granted or refused the relief sought. The same meaning has to be given to the decision contemplated in s 16 (1) (a) of the Superior Courts Act.

[10] This Court did not refuse the interdict on the strength of the provisions of section 4 (3) of the PDA or application thereof. The SCA in Neotel forcefully resisted a submission that an appeal may lie against reasons as well. For all the above reasons, an appeal against the

alleged error in relation to section 4 (3) ought to be refused. Similarly, the error in relation to the prejudice for referring an unfair labour practice suffers the same fate. This Court referred to section 5 of the LRA and did not refuse the interdict because the provisions of section 5 of the LRA were not met. In order to have succeeded the applicant needed to show contravention of section 3 of the PDA as a whole. This Court was clear that the claim of the applicant had nothing to do with the contravention of section 5 of the LRA.

Grounds considered

[11] In the preceding paragraph, this Court dealt with the alleged error in relation to section 4 (3) of the PDA and the referral of the unfair labour practice. It is unnecessary to consider these grounds since they do not inform the refusal of the interdict sought by the applicant. Thus, this application turns solely on the issue of the connection and costs.

The connection issue

[12] To a large degree, the applicant places reliance on the interpretation of section 3 of the PDA by the LAC in TSB Sugar RSA Ltd (now RCL Food Sugar Ltd) v Dorey[7]. It was not necessary in this Court to interpret the section. In Dorey, the employee was dismissed for various acts of misconduct. The Court a quo referred to certain charges and made a connection between those charges and the disclosure made by Dorey. In casu, the occupational detriment is a suspension. What was required of this Court was to consider the evidence regarding the reason for the suspension in order to establish whether the disclosure fully or partly accounted for the suspension. The only way to have done so was to apply the proximate cause test. This is the test this Court applied and the Court of appeal would apply the same test.

[13] It is however necessary to revert to the issue of the referral of the unfair labour practice. Referring an unfair labour practice is not tantamount to a disclosure of an impropriety. It is thus fundamentally wrong to even remotely suggest that the referral is a “factual contributor” to the suspension. This Court fails to understand how such can be a contributor to the suspension. The referral of a dispute alleging an unfair labour practice is a distinct right afforded to employees by the LRA. If an employer suspends an employee because he or she made a referral, such is not the same as suspending an employee because he or she made a disclosure as defined in the PDA. The short answer to the contention is that a referral of an unfair labour practice is not a disclosure as defined in the PDA. Instead suspending an employee in contravention of section 3 of the PDA amounts to an unfair labour practice, an issue over which, this Court declined jurisdiction.

[14] PDA defines what an occupational detriment is. In casu, the applicant contended that the occupational detriment was the precautionary suspension. Thus, all other actions of resentment,

animosity, lambasting and disdain, are not occupational detriments within the meaning of the PDA. Therefore, the relevant distance, for the purposes of determining the timing, is between the disclosure and the occupational detriment. In this case, the first disclosure was made in May 2020 and the occupational detriment happened in July 2021. What happened between May 2020 and July 2021, does not amount to occupational detriment(s), thus irrelevant for the purposes of determining the timing connection. Another Court will not conclude that the resentment, animosity, lambasting and disdain amount to occupational detriments nor that they are relevant for the purposes of determining the timing connection.

[15] With regard to the reasons for the suspension, the applicant contends, the audit report was issued in December 2020 and the applicant was allowed to continue in employment that notwithstanding. The question whether the suspension meets the requirements of the SMS Handbook is not a question that this Court considered and was required to consider regard being had to the relief the applicant sought. The applicant did not seek to interdict the suspension because the requirements of the SMS Handbook were not met. He was specific in his quest that his suspension is in contravention of section 3 of the PDA. An interdict is aimed at an unlawful act and not an unfair act per se. In any event, given the mootness of the contemplated appeal, it is not necessary for a Court of appeal to be burdened with such issues. The applicant will derive no beneficial practical effect. For this reason alone, an appeal on the connection issue remains abstract and academic.

The issue of costs.

[16] It is trite that an award of costs involves an exercise of discretion[8]. On appeal, a Court is loath to interfere with an awarding of costs. The Constitutional Court decreed that when awarding costs the Labour Court must give reasons for doing so. This Court specifically stated that since the employment relationship will be ending there is no longer a buffer for awarding costs based on success. This Court did not award costs because of an abuse but simply referenced the Botes in relation to the warning about costs following the results. However, the Court applied the principle of costs following the results since the buffer to not do so ceased to exist. The applicant sought an interdict and failed to obtain one. It must be emphasised

that this interdict could have been sought in the High Court and there costs would have followed the results. This is not a matter,

which falls within the exclusive jurisdiction of the Labour Court as a specialist Court. As mentioned in the impugned judgment, the applicant chose an expensive process over an inexpensive one. The PDA makes it clear that a suspension like the one the applicant

complained about amounts to an unfair labour practice. In as much as the applicant had a choice of a course of action, where an interdict is chosen as a cause of action and success is not achieved, costs ought to follow the results. Seeking an interdict is generally a civil action as opposed to a pure labour matter. Recently the Constitutional Court in UPSCO v SACM (Pty) Ltd[9] stated the following:

“[31] …The crisp point I am making rather, is this: when costs orders are too readily made against those who seek to vindicate their constitutionally-entrenched labour rights in the specialist institutions created by the LRA, employers and employees alike may be left with no option but to resort to industrial action to remedy disputes that the LRA places beyond the purview of protected industrial action. That would cultivate unlawfulness and be inimical to the foundational value of the rule of law underpinning our democratic order.

[32] It is therefore imperative for our democracy that the doors of labour dispute resolution be kept wide open for litigants to air their grievances, so that unlawful industrial action, and all its potential consequences, is generally avoided. That accords with the scheme of the LRA, which contemplates industrial action only where no other avenues are readily available. The rule against automatic costs orders is an integral part of that scheme in that it ensures access to labour dispute resolution institutions and no doubt enlarges the width by which the doors of those institutions are kept open.”

[17] An interdict is not a pure labour matter to be specifically entertained by a specialist Court. In a civil action, costs do follow the results. In any event, if this Court were to allow the applicant to appeal the costs order only, a principle established by the SCA in the matter of Khumalo v Twin City Developers[10] will be offended. The majority in Khumalo, aptly stated the law as follows:

“[58] In Mgwenya NO & others v Kruger & another, the first respondent, an ordained pastor of the Apostolic Faith Mission Church of South Africa, whose pastoral status was terminated by the Church passed away before the hearing of the appeal. In view of the demise of the first respondent, the appellants conceded that there were no live issues remaining between the parties and that the appeal and any order made thereon would have no practical effect or result. The appellants however contended that the church would be saddled with costs orders made in favour of first respondent and this would be most ‘unfair’ to the church.

…

[62] For all those reasons there are no exceptional circumstances justifying this court to have regard only to the consideration of costs. The appeal must therefore fail.”

[18] In casu, much as the applicant did not acknowledge that the appeal would have no practical effect, it is the finding of this Court that the appeal will have no practical effect. That being the case, section 16 (2) (a) (ii) of the Superior Courts Act provides that it is only in exceptional circumstances that the question whether the decision would have no practical effect or result is to be determined without reference to any consideration of costs. The minority judgment in Khumalo, acknowledged that markedly unusual or special different circumstances constituted the exceptional circumstances that would justify

adjudication of the appeal on costs. I do not believe that the appeal Court would find anything markedly unusual to entertain the appeal only on costs.

Compelling reasons

[19] The applicant contends that even if the appeal lacks merits, this Court must allow the appeal because the interests of justice demand so. As indicated earlier, section 17 of the Superior Courts Act remains the guiding source. In terms of section 17 (1) (a) (ii) thereof, leave to appeal may only be given where the judge and not a party is of the opinion that there is some other compelling reason why the appeal should be heard. With regard to what compelling reasons includes, the SCA in Caratco (Pty) Ltd v Independent Advisory (Pty) Ltd[11] stated that those are important question of law or a discreet issue of public importance that will have an effect on the future disputes. It was also emphasised by the SCA that merits remain vitally important and often decisive.

[20] This matter does not raise an important question of law. The issue of causation has been settled by the LAC in Dorey and the Constitutional Court in Numsa and others v Aveng Trident Steel and another[12] with regard to the determination of the true reason for dismissal. In Trident, the majority judgment endorsed the Afrox test of causation. There is no discreet issue of public importance, which will affect future disputes. The fact that the persona dramatis include the first citizen of this country does not render the matter to be of any public importance. Yes, it might be an interesting

matter for the public but certainly not of public importance.

[21] Accordingly, I conclude that the application should fail.

Order

[4] In the results, I make the following order:

1. The application for leave to appeal is hereby dismissed.

2. There is no order as to costs.

GN Moshoana

Judge of the Labour Court of South Africa

Appearances

None

[1] Act 26 of 2000.

[2] Act 10 of 2013. See Seathlolo and Another v CEPPWAWU and others [2016] 37 ILJ 1485 (LC)

[3] This Court wondered at the time of the hearing of the main application why the application was being pursued in the circumstances where the contract was due to expire in a matter of days.

[4] 2000 (2) SA 1 (CC).

[5] [2015] 36 ILJ 2032 (LAC).

[6] (605/2016) 31 March 2017.

[7] [2019] 40 ILJ 1224 (LAC).

[8] See Trencon Construction (Pty) Ltd v IDC of SA and another 2015 (5) SA 245 (CC).

[9] (CCT192/20) [2021] ZACC 26 (7 September 2021)

[10] (328/2017) [2017] ZASCA 143 (2 October 2017).

[11] 2002 (5) SA 35 (SCA).

[12] [2021] 42 ILJ 67 (CC).