Dipela v Limpopo Economic Development Agency (J1125/21) [2024] ZALCJHB 208 (21 May 2024)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case No. J1125/21

In the matter between:

MACHUENE REUBEN DIPELA Applicant

and

LIMPOPO ECONOMIC DEVELOPMENT AGENCY Respondent

Delivered: This judgment was handed down electronically by emailing a copy to the

parties. The 21st May 2024 is deemed to be the date of delivery of this

judgment.

Summary: Application for leave to appeal dismissed

JUDGMENT: APPLICATION FOR LEAVE TO APPEAL

DANIELS J

[1] The applicant seeks leave to appeal against the order of this court on 15 February 2024. Following a request for reasons for the order, reasons were issued on 15 March 2024.

The litigation

[2] The applicant was employed by Great North Transport (“GNT”) as an internal audit assistant, grade 10. On or about 1 May 2018, GNT transferred the applicant to the respondent, on the same conditions of employment. However, while working at the respondent, the applicant discovered that its grading and remuneration structure was more favourable than that of GNT. Accordingly, on 6 October 2021, the applicant brought an application seeking to compel the respondent to conduct a grading exercise, and then to remunerate him at grade 7 from 1 May 2018.

Jurisdiction

[3] In his founding and replying affidavits, the applicant based his cause of action exclusively on the right against unfair labour

practices.

[4] The applicant does not explain why I should have accepted that this Court has direct jurisdiction (other than as a court of review) over unfair labour practices. The applicant does not engage with the reasoning of the Court. The applicant does not engage with the content and meaning of section 157 of the LRA. The applicant does not deal with section 191 of the LRA, which clearly articulates that disputes about unfair labour practices must be referred to the CCMA or a Bargaining Council for conciliation and, if that fails, arbitration.

[5] Leave to appeal is not merely for the asking. The applicant must put up a compelling argument. It has failed to do so. In the circumstances, there is no prospect that another court would reach a different conclusion.

Admission of supplementary affidavit

[6] After close of pleadings, the applicant filed a supplementary affidavit. In it, the applicant sought to advance a new cause of action, namely that the respondent had breached his employment contract. After considering all the relevant factors, I dismissed the application to admit this supplementary affidavit. The applicant alleged that this was unfair because the respondent also filed a supplementary affidavit but received no similar treatment.

[7] However, what the respondent termed a “supplementary affidavit” more closely resembled a condonation application. The respondent stated that an incomplete application had been served on it during 2021, and it only received the full application on 23 February 2022. The respondent stated that its answering affidavit was less than 36 hours late, and the reasons for this were that its attorneys were in Johannesburg while it was based in Polokwane.

[8] In addition, in a single paragraph, respondent also sought to present evidence as to when the applicant had been transferred back to GNT. The date of the applicant’s transfer back to GNT was of no relevance to the jurisdictional issue. Neither was it relevant whether the applicant was employed by the respondent or GNT at the time of the application.

[9] The applicant confuses the amendment of pleadings, with the admission of a supplementary affidavit.[1] This Court was entitled to exercise its discretion against the admission of the supplementary affidavit, given the absence of a

satisfactory explanation.

Factual disputes

[10] The applicant alleges that the Court acted unfairly because it decided the various factual disputes based on respondent’s version.

[11] The applicant chose to pursue this matter based on motion proceedings, seeking final relief. Accordingly, any factual dispute must be decided on the basis of the principles in Plascon -Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd.[2] In essence, the facts as stated by the respondent, together with the admitted (or facts that are not denied) in the applicant’s

founding affidavit, serve as the basis for the determination of the dispute.[3] This approach was endorsed by the Constitutional Court in Rail Commuters Action Group and others v Transnet Ltd t/a Metrorail and others.[4] Clearly, the applicant has no basis for its complaint.

Costs

[12] The applicant’s attorney alleges that the Court is attempting to intimidate her into not practicing law. This allegation is without merit, and most regrettable. In my view, there is no reason why the applicant should be out of pocket for the negligence of his representative. Furthermore, as I earlier suggested, it was improper for the applicant to drag the respondent to court when the dispute was so obviously in the wrong forum.

Conclusion

[13] In the result, the application for leave to appeal is dismissed.

R Daniels

Judge of the Labour Court of South Africa

[1] In general, the Labour Court permits three sets of affidavits in motion proceedings (review applications are the exception). The admission of further affidavits falls within the discretion of the court, and requires a proper explanation. See Slo-Jo Innovation (Pty) Ltd v Beedle & Another (2) (2023) 44 ILJ 854 (LC) at para 35

[2] 1984 (3) SA 623 (A) at 634E - 635C

[3] Unless the dispute of fact is not real or genuine or the denials in the respondent’s version are bald or not creditworthy, or the respondent’s version raises such obviously fictitious disputes of fact, or is palpably implausible, or far-fetched or so clearly untenable, that the court is justified in rejecting that version on the basis that it obviously stands to be rejected.

[4] 2005 (2) SA 359 (CC) at para 53