Shongwe and Others v City of Johannesburg Metropolitan Municipality (JR483/14) [2016] ZALCJHB 302 (11 August 2016)

THE LABOUR COURT OF SOUTH AFRICA,

JOHANNESBURG

Not Reportable

Case no: JR483/14

In the matter between:

KHANYISILE. P. SHONGWE & 25 OTHERS Applicants And THE CITY OF JOHANNESBURG METROPOLITAN MUNICIPALITY Respondent

Decided in Chambers

Delivered: 11 August 2016

RULING – APPLICATION FOR LEAVE TO APPEAL

TLHOTLHALEMAJE, J

[1] Following the individual Applicants’ claim for payment in the sum of R22 224 371.69 by the Respondent, this court delivered a judgment on 25 February 2016. In its order, the preliminary points raised by the Respondent, and in particular, the pleas of res judicata and lis alibi pendens were upheld. The Applicants’ main claim was also dismissed with costs.

[2] The Applicants have since launched an application for leave to appeal against the whole of that judgment, which application is opposed by the Respondent. The Applicants submitted that the Court erred in its findings, including that;

2.1 The Respondent was not required to lead evidence, oral or otherwise, to establish the case or cases encapsulated in each one of the special defences raised against the claims of the Applicants;

2.2 The Respondent could simply argue from the bar for the granting or upholding of the special defences raised without any evidence having been placed on record to establish those defences;

2.3 The bundle of documents prepared and placed in the Court’s file constituted the necessary evidence upon which the Court or the Respondent could rely on in support of the granting or upholding of those special defences;

2.4 The Court erred in upholding the special defences and dismissing the Applicant’s claim with costs.

[3] The traditional test for leave to appeal is well known, and requires the Court to determine whether there is a reasonable prospect that another Court (in this case, the Labour Appeal Court) may come to a different conclusion to that reached in the judgment a quo[1]. The Respondent in its opposition to the application correctly pointed out that there is a second leg to the enquiry, which is whether or not the case is of substantial importance to the Appellant or to both the Appellant and the Respondent.

[4] The Respondent in opposing the application contended that there are no reasonable prospects that Labour Appeal Court will uphold the Applicants’ appeal, and further that the case is of no substantial importance.

[5] I have had regard to the grounds upon which the Applicants seek leave to appeal, and in the light of all the issues relied upon having been specifically dealt with and in detail in the main judgment, no purpose will be served in repeating same in this judgment. It however needs to be stated that having considered the grounds upon which leave to appeal is sought, and further having reflected on my judgment and the submissions made on behalf of the Respondent in that regard, there is no sound or rational basis to conclude that the Applicants have any prospects or realistic chance of succeeding on appeal, in the sense that the Labour Appeal court will uphold the grounds relied upon. Furthermore, having had regard to the merits of the claim, there is no basis to conclude that the case is of substantial importance. On the contrary, and in the light of the preliminary points upheld in the judgment, the Applicants’

claim and the present application can easily be construed as vexatious.

[6] The Court will take into account the requirements of law and fairness in considering an order of costs as per the provisions of section 162 of the LRA. In this case, it is common cause that the individual applicants remain employed by the Respondent. This Court’s approach in such circumstances has been to be disinclined to make an order of costs on the basis that there is an on-going relationship between the parties. This approach in my view is however not cast in stone, as other considerations have to be taken into account. This is even moreso as in this case, where the individual applicants chose to approach the Court on their own despite being members of SAMWU. It is common cause that SAMWU had assisted the Applicants to a certain extent with their claim, but not for the purposes of this application. SAMWU must have properly reflected on the merits of this claim, something which the individual applicants clearly failed to do.

[7] One of the considerations the Court must take into account in awarding costs in this case is that it would not be fair on the

Respondent to be compelled to defend matters in circumstances that are unnecessary, and where on the face of it, there is no merit in the litigation that it is compelled to defend. This matter has been on-going since July 2013 when a dispute was first referred to the CCMA. It is not in the interests of expeditious resolution of disputes that disputes such as these despite numerous CCMA awards and Court order should go on endlessly. As at this stage, there are two further applications pending before this Court in the form of a review application brought on behalf of the Applicants, and a Rule 11 application to dismiss that review application as brought by the Respondent.

[8] It is accepted that parties are entitled to pursue their constitutional rights to fair labour practices, and any other rights

under the LRA. There is however a limit to which parties can go. One of these limits is that the Respondent, being a municipality, cannot endlessly, and at the expense of the ratepayer, defend matters which are not only ill-conceived but which have zero prospects of succeeding. To this end, the requirements of fairness in this case dictate that this application should be dismissed with costs.

Order:

i. The application for leave to appeal is dismissed with costs.

Tlhotlhalemaje, J

Judge of the Labour Court of South Africa

[1] See Karbochem Sasolburg (A Division of Sentrachem Ltd) v Kriel and Others (1999) 20 ILJ 2889 (LC) at 2890B. See also S v Smith 2012 (1) SACR 567 (SCA) at para [7], where it was held that: ‘What the test of reasonable prospects of success postulates is a dispassionate decision, based on the facts and the law, that a court of appeal could reasonably arrive at a conclusion different to that of the trial court. In order to succeed, therefore, the appellant must convince this court on proper grounds that he has prospects of success on appeal and that those prospects are not remote, but have a realistic chance of succeeding. More is required to be established than that there is a mere possibility of success, that the case is arguable on appeal or that the case cannot be categorised as hopeless. There must, in other words, be a sound, rational basis for the conclusion that there are prospects of success on appeal.’

[1] See Karbochem Sasolburg (A Division of Sentrachem Ltd) v Kriel and Others (1999) 20 ILJ 2889 (LC) at 2890B. See also S v Smith 2012 (1) SACR 567 (SCA) at para [7], where it was held that:

‘What the test of reasonable prospects of success postulates is a dispassionate decision, based on the facts and the law, that a court of appeal could reasonably arrive at a conclusion different to that of the trial court. In order to succeed, therefore, the appellant must convince this court on proper grounds that he has prospects of success on appeal and that those prospects are not remote, but have a realistic chance of succeeding. More is required to be established than that there is a mere possibility of success, that the case is arguable on appeal or that the case cannot be categorised as hopeless. There must, in other words, be a sound, rational basis for the conclusion that there are prospects of success on appeal.’