South African Municipal Workers Union obo Diphoko and Morwe v Tswaing Local Municipality and Others (Leave to Appeal) (J1268/20; J1230/20) [2021] ZALCJHB 473 (22 January 2021)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Case no: J1268/20

& J1230/20

In the matter between:

SOUTH AFRICAN MUNICIPAL WORKERS

UNION obo VINCENT DIPHOKO and

DANIEL MORWE

Applicant

and

TSWAING LOCAL MUNICIPALITY

AND THREE OTHERS

Respondents

Heard: In Chambers

Delivered: 22 January 2021

JUDGMENT –

APPLICATION FOR LEAVE TO APPEAL

MOSHOANA, J

[1] Before me are two applications for leave to appeal. These two matters were never consolidated within the contemplation of rule 23 of the Labour Court rules for the purposes of hearing. Case number J1230/20 was heard on 12 November 2020 and this Court handed down a judgment and order on 17 November 2020. Case number J1268/20 was enrolled to be heard on 19 November 2020. At this time, J1230/20 was no longer pending as the Court had already delivered its judgment. This Court became functus officio after delivery of a judgment. The applicant in J1268/20 attempted consolidation of his application with a matter that this Court had disposed of already. Such a request was not entertained by this Court. On the day, an attempt was made to have the matter removed from the urgent roll so that it must be consolidated with J1230/20 for the purposes of an appeal that was contemplated at the time.

[2] This Court refused to entertain the request. Since the matter served before the urgent Court, the applicant was unable to demonstrate why the matter should be heard as one of urgency. As a result, the application was struck of the roll due to lack of urgency. The two applications under consideration in this judgment seeks an order for leave to appeal against the entire judgment and order of this Court handed down on 17 November 2020 and an order striking case J1268/20 off the roll due to lack of urgency. For the Court’s convenience the two applications although not formally consolidated shall be dealt with in this one judgment.

Appealability of the orders

[3] In terms of section 166 (1) of the Labour Relations Act[1] (LRA) an appeal to the Labour Appeal Court (LAC) lies against any final judgment or final order of the Labour Court. In respect of case J1268/20, this Court did not make a final order as such an appeal does not lie against its order of striking the matter of the roll for lack of urgency. For this reason alone, the application for leave to appeal ought to be struck off the roll.

[4] As a matter of principle, an appeal does not lie against the reasons[2] but against the order. In the judgment delivered in case J1230/20, this Court made two orders, namely, (a) the application is dismissed

and (b) the applicant to pay the costs of the application. It is against this two orders that and appeal to the LAC lies. On application of the above principle where the applicant attacks the reasons as opposed to an order, an appeal shall not lie on such.

Grounds considered

[5] By now it is trite that leave to appeal shall be granted in instances where an appeal ‘would’ have a reasonable prospects of success[3]. In other words, a possibility must exist that another Court would and not may come to a different conclusion. In considering the grounds punted for, the above test will be applied.

The first ground

[6] Despite the comments of this Court in paragraph 7 of the impugned ijudgment, the application was considered in terms of section 77 (3) of the Basic Conditions of Employment Act[4] (BCEA). Section 77A(e) of the BCEA does not afford the Labour Court jurisdiction but powers exercisable once the Labour Court acquires

jurisdiction under section 77 (3) of the BCEA. It is only when the Labour Court exercises jurisdiction[5] under section 77 (3) that it can order specific performance; award damages or award compensation. Having exercised jurisdiction over the matter, an attack on the reasons of the Court is unhelpful to the applicant. The applicant has a choice with regard to the manner in which he decided to challenge the termination. The unfair dismissal route is another route available but not used.[6] Even if the LAC may not agree with the reasoning employed by this Court, such would not entitle the applicant to a leave to appeal. For these reasons, the first ground falls to be dismissed.

Error with regard to the reasons of termination.

[7] The applicant submits that this Court erred in accepting that the reasons for termination are that the applicant breached the terms of the employment contract as opposed to having committed acts of misconduct. The difference between material breach and committing acts of misconduct is artificial and actually insignificant, in my view. An employee who is alleged to be untruthful and unfaithful to his or her employee is said to have committed an act of misconduct and by another name it can be said that an employee has materially breached the terms of his or her employment contract. Another Court will not come to a different conclusion.

Mero motu raising of waiver

[8] At paragraph 9 of its judgment, this Court after delivering a comment on waiver concluded thus:

[9] Nonetheless, this Court shall have to live with the choice, supposedly made with the benefit of proper legal advice, that the termination be challenged on the principles of the law of contract…

[9] Again, even if the Labour Appeal Court disagrees with the comment on waiver, the fact that this Court accepted the choice made, the LAC will not reach a different conclusion with regard to exercising jurisdiction under section 77 (3) of the BCEA. Paragraph 27 of the impugned judgment makes the point.

Entertaining a matter in the absence of a contract of employment

[10] Despite having delivered the comment, this Court exercised jurisdiction under section 77 (3). As pointed out above, the section that confers concurrent jurisdiction is section 77 (3) as opposed to section 77A(e) of the BCEA. Attacking the reasoning of this Court remains unhelpful.

Solidarity and others v Singhala debate

[11] En route towards its order, the Court discussed judgments of this Court and reasoned that the conclusions in Singhala are preferred by it. All of that goes to the reasons of the order but not the order itself. The discussion was directed to the remedy issue, which this Court never reached. The relevant conclusions in support of an order dismissing the claim are to be found in paragraphs 24 - 25 of the impugned judgment where this Court found that contractually the Municipality was entitled to terminate, since the termination was authorized by the contract it cannot amount to a breach or repudiation.

Erred in finding that the Municipality was entitled to terminate.

[12] The applicant made a conscious choice to predicate its case on the right to terminate after a disciplinary hearing. Therefore, the success of the applicant did not primarily depend on the right to terminate per se, but on the right of doing so after holding a disciplinary hearing. The applicant chose motion proceedings. During argument, counsel for the applicant correctly conceded that the issue whether the applicant is or is not guilty of the alleged breach/misconduct is not an issue to be resolved in motion proceedings. The finding that the Municipality was entitled to terminate without holding a hearing was based on the written terms of the contract of employment. Another Court will not come to a different decision. Motion Court is geared towards resolving issues of law based on common cause facts, it is not a place to resolve disputes of facts – viz is the applicant guilty of the allegations of breach/misconduct. Such are matters suitable for trial, where witnesses may be cross-examined to test the veracity of their versions.

General

[13] The bulk of the applicant’s grounds are directed to the reasoning adopted by the Court as opposed to the findings supporting the order. The case of the applicant was simply that in terminating without holding a disciplinary hearing, the Municipality breached the employment contract. Thus, the applicant was required to demonstrate the contractual right. The contract upon which the applicant

predicated his claim allowed the Municipality to terminate. Having acted in accordance with the agreed terms, the Municipality was not in breach[7].

Appeal on costs

[14] The principle that in civil matters costs follow the results is long approved by the LAC. At paragraph 47 of the Skinner[8] judgment, the LAC concluded thus:

[47] As this matter is principally a contractual claim in terms of section 77 (3) of the BCEA, the ordinary rule that costs should follow the result applies.

[15] Similarly, this Court reached the same conclusion at paragraph 37 of the impugned judgment. Another Court may not reach a different conclusion on the issue of costs, which involves an exercise of discretion.

Conclusions

[16] Having considered the grounds for leave to appeal, I come to the conclusion that the application lacks reasonable prospects of success.

Order

1. The application for leave to appeal is refused with costs.

G. N. Moshoana

Judge of the Labour Court of South Africa

[1] Act 66 of 1995

[2] Constantia Insurance Co Ltd v Nohamba 1986 (3) SA 27 (A) at $2H-43C; Neotel (Pty) Ltd v Telkom SOC & others (605/2016) [2017] ZASCA 41 (31 March 2017) and Atholl Developments (Pty) Ltd v The Valuation Appeal Board of Johannesburg [2015] ZASCA 55 (30 March 2014).

[3] Section 17 (1) (a) (i) of the Superior Courts Act 10 of 2013.

[4] Act 75 of 1997.

[5] See Kubeka & others v Ni-DA Transport (Pty) Ltd case DA10/19 delivered on 24 November 2020 at para 39-40. The LAC somewhat confirmed that in the absence of an extant contract of employment, there is no claim under section 77 (3) of the BCEA. This Court in the impugned judgment held a similar view at paragraph 14. (see para 39 of the LAC judgment).

[6] Baloyi v The Public Protector (CCT03/20) [2020] ZACC 27 (4 December 2020) para 40-41.

[7] Skinner & Others v Nampak Products Ltd and others (JA95/19) [2020] ZALAC 43 (24 November 2020).

[8] Fn 7