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Photocircuit SA (Pty) Limited v Roux NO and Another (473/89) [1991] ZASCA 11 (12 March 1991)

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IN THE SUPREME COURT OF SOUTH AFRICA

(APPELLATE DIVISION)

In the matter between:
PHOTOCIRCUIT S A (PTY) LIMITED Appellant

and

ADV P E ROUX SC N O 1st Respondent
C E DOUGLASS 2nd Respondent
CORAM : HOEXTER, VIVIER, MILNE, KUMLEBEN JJA

et KRIEGLER AJA

HEARD : 12 MARCH 1991

DELIVERED : 12 MARCH 1991

TRANSCRIPT OF EXTEMPORE JUDGMENT DELIVERED IN COURT ON 12 MARCH 1991

HOEXTER JA/...

1 .

HOEXTER JA:

The appeal is dismissed with costs. Certain unsatisfactory and disquieting features call for comment.

On 30 November 1990 this court delivered

judgment in the matter of Photocircuit SA (Pty) Ltd v
P P de Klerk NO and Others (the "De Klerk appeal").
The present appellant was also the appellant in that
case. One of the issues calling for decision in the De
Klerk appeal was whether in terms of s 23(1) of the
Labour Relations Act, No 28 of 1956, the Industrial
Council had jurisdiction over the appellant. After
hearing full argument and considering the relevant
authorities, this court decided the question against
the appellant for reasons comprehensively set out in

the written judgment. The issue decided in the De

2/...
2. Klerk appeal was, and is, the only one raised in the present appeal. On the face of it, the earlier decision disposes of the one issue in the present appeal.

The original heads of argument filed on

behalf of the appellant in this appeal were lodged
before delivery of the De Klerk judgment. This
morning, however, supplementary heads of argument were
submitted by Mr van Graan, who now appears on behalf of
the appellant. One reads them with astonishment.
There is no reference to the De 'Klerk judgment: one
phrase obliquely suggests that counsel was aware of the
earlier judgment when he drafted the supplementary
heads. (During argument Mr van Graan conceded this.)
The single authority referred to is a text-book on
Administrative Law. Moreover, there is simply nothing

in them to indicate that counsel was aware of the stare

3/...
3.
decisis rule as it is to be applied to a decision of the Appellate Division which is sought to be reversed.
Last but not least, the submissions in these heads do not attempt any critical analysis of the reasoning in the De Klerk judgment. In the main the argument now advanced is no more than a variation of the theme which was put forward and rejected in that judgment, and the submissions as today presented to us are in our judgment without substance.

This lamentable chronicle of events prompted Mr Duminy, who appeared for the second respondent, to ask that the costs of this hearing be awarded against the appellant on an attorney and client scale. If one were certain that the objectionable aspects of this appeal could be attributed to anything more than ineptitude this request would have merited serious

4/...
4. consideration.

G G HOEXTER JA

VIVIER JA )

MILNE JA ) Concurred

KUMLEBEN JA )

KRIEGLER AJA)