South African Municipal Workers Union and Another v Johannesburg Metropolitan Municipality and Others (J 297/2022) [2022] ZALCJHB 189 (28 July 2022)

THE LABOUR COURT OF SOUTH AFRICA

(HELD AT JOHANNESBURG)

Not reportable

CASE NO: J 297/2022

In the matter between:

SOUTH AFRICAN MUNICIPAL WORKERS UNION First Applicant

EMPLOYEES OF THE FIRST RESPONDENT

WHO ARE MEMBERS OF THE FIRST APPLICANT Second Applicant

And

JOHANNESBURG METROPOLITAN MUNICIPALITY First Respondent

MESULI MLANDU

Second Respondent

MPHO PHALATSE

Third Respondent

In view of the measures implemented as a result of the Covid 19 pandemic, this judgement was handed down electronically by circulation to the parties’ representatives, by email. The date on which the judgment is delivered is deemed to be 28 July 2022.

RULING: APPLICATION FOR LEAVE TO APPEAL

VAN NIEKERK J

[1] The applicants seek leave to appeal against the whole of the judgment delivered by this court on 3 May 2022 in which the court struck an application filed by the applicants from the roll, with no order as to costs. The court found that the applicants had failed to plead any cause of action justiciable by this court, given that the legal cause of action was one that required the court to determine the lawfulness of the termination of contracts of employment, and to pronounce on the validity of a resolution adopted by a municipal council.

[2] The test to be applied is set out in s 17 of the Superior Courts Act. In broad terms, leave to appeal should be granted only when the appeal would have a reasonable prospect of success, or where there is some other compelling reason why the appeal should be heard. The bar is set high – in The Mont Chevaux Trust v Tina Goosen & 18 others 2014 JDR 2325 (LCC) Bertelsmann J pointed out in paragraph 6 that:

It is clear that the threshold for granting leave to appeal against a judgment of the High Court has been raised in the new Act. The former test whether leave to appeal should be granted was a reasonable prospect that another court might come to a different conclusion, see Van Heerden v Cornwright & Others 1985 2 SA 342 (t) at 343H. The use of the word ‘would’ in the new statute indicates a measure of certainty that another court will differ from the court whose judgment is sought to be appealed against.

[3] Put another way, there must be a sound, rational basis to conclude that there is a reasonable prospect of success on appeal – the mere possibility of success, or an arguable case or one that is not hopeless, is not enough (see MEC for Health Eastern Cape v Mkhitha and another (1221/2015 {2016] ZASCA 176 (25 November 2016), at paragraphs 16 and 17).

[4] I do not intend to canvas all of the grounds for appeal. To the extent that the applicant submits that the court erred in finding that the focus of the applicants’ case was on the decision of a municipal Council to rescind a decision made by a male committee, the applicants case was premised on a resolution adopted by the municipal Council to revoke the unauthorised conversion of the contracts of employment. Further, to the extent that the applicants submit that the court erred in regarding the issue in dispute is one concerning the alleged unlawful termination of employment contracts and not the unfairness thereof, the pleadings reveal that the applicants sought to have the court declare them as permanent employees on the basis that the actions of the municipal council were unlawful. The court was bound to deal with the matter on the basis of the pleadings and

it is not open to the applicants at this stage to recast the nature of the dispute in different terms. The fact remains that the court was asked to declare the applicants to be permanent employees (in circumstances where that very dispute served before the bargaining council) on the basis of an assertion that the municipal council had adopted a resolution that was unlawful and invalid.

[5] Given the line of cases in this court to the effect that this court has no jurisdiction to make findings as to the validity of resolutions adopted by municipal councils, I fail to appreciate how it can be said that the applicants have made it to the threshold for the granting of leave to appeal. The application thus stands to be dismissed.

[6] Although the respondents sought costs on a punitive scale, given the nature of the dispute in the relationship between the parties, for the purposes of section 160 of the LRA, the requirements of the law and fairness are best met by each party bearing its own costs.

I make the following order:

1. The application for leave to appeal is dismissed.

André van Niekerk

Judge of the Labour Court of South Africa