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FORM A

FILING SHEET FOR EASTERN CAPE JUDGMENT

ECJ no : 42

PARTIES: POLICE AND PRISONS CIVIL RIGHTS

UNION AND 75 OTHERS APPLICANT

AND

THE MINISTER OF CORRECTIONAL

SERVICES AND FIVE OTHERS RESPONDENT

REFERENCE NUMBERS -

• Registrar: 603/2005

• Magistrate:

• Supreme Court of Appeal/Constitutional Court:

DATE DELIVERED: 7 SEPTEMBER 2006

JUDGE(S): C. PLASKET

LEGAL REPRESENTATIVES -

Appearances

:

• for the State/Applicant(s)/Appellant(s): ADV. J. G. GROGAN

• for the accused/respondent(s): ADV. J. W. EKSTEEEN SC

ADV. N. SANDI

Instructing attorneys:

• Applicant(s)/Appellant(s): WHEELDON, RUSHMERE AND COLE

• Respondent(s): MLONYENI & LESELE INC.

CASE INFORMATION -

• Nature of proceedings : APPLICATION TO REVIEW

• Topic:

• Keywords:

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION)

CASE NO: 603/2005

DATE DELIVERED:7/9/06

In the matter between:

POLICE AND PRISONS CIVIL RIGHTS UNION

AND 75 OTHERS APPLICANTS

and

THE MINISTER OF CORRECTIONAL SERVICES

AND FIVE OTHERS RESPONDENTS

JUDGMENT

PLASKET, J

[1] This is an application for leave to appeal brought by the abovenamed respondents against a judgment I gave against them on 12 January 2006. It is an unusual application because leave to appeal is sought despite a comprehensive settlement having been reached by the parties after judgment.

[2] For the sake of simplicity, I shall refer from now on to the Minister and his officials collectively as the Department and to the Police and Prisons Civil Rights Union as POPCRU.

[3] The settlement agreement relates not only to the dispute and the subsequent dismissals at the Middledrift Prison – the subject matter of my judgment – but also deals with similar disputes at a number of other prisons around the country. In the introduction to the settlement agreement it is noted that POPCRU was successful in its challenge to the dismissal of its members in this case (referred to in the document as the Middledrift matter) and that the Department has ‘taken the judgment of the Eastern Cape High Court on appeal to the Supreme Court of Appeal’. (Obviously, that is not entirely accurate, but of no particular moment.)

[4] It is then acknowledged in the settlement agreement, inter alia, that ‘the issues leading to and arising out of the industrial action could have been handled better but for the negative attitudes and the breakdown in communication and failure to follow legislative procedures and policies’. Both parties committed themselves to ‘developing a joint problem solving strategy to ensure labour peace at the workplace’ and they undertook to ‘adhere to policies and procedures in dealing with conflicts and disputes’, identifying ‘respect for due process and compliance with procedures’ as being ‘essential’.

[5] The settlement agreement then contains detailed action to which the parties committed themselves to settle their dispute comprehensively. They agreed to a ‘relationship building by objectives’ process to address, inter alia, the ‘underlying causes of the breakdown in communication and attitude between the parties’; the re-employment of a number of listed employees ‘without loss of seniority, years of service and experience acquired’; the negotiation of the re-purchase of pensions for re-employed employees; the re-deployment of re-employed employees; and that re-employed employees at Pollsmoor, Kirkwood, Havenqua and Kroonstad Prisons would ‘individually sign a letter of apology and an undertaking that they will not in future engage in the same conduct’.

[6] A section of the settlement agreement is devoted to ‘litigation and related matters’. Part of it deals with this matter. It states that POPCRU will not enforce the judgment in its favour, the Department will proceed with the appeal and the ‘outcome of the appeal will have no bearing on the terms and conditions of this agreement and the affected employees will not lose any right accrued as a result of this agreement and DCS [the Department of Correctional Services] waives its right to enforce the outcome of the appeal against the affected employees should it succeed on appeal’.

[7] Section 21A(1) of the Supreme Court Act 59 of 1959 provides that ’[w]hen at the hearing of any civil appeal to the Appellate Division or any provincial or local division of the Supreme Court the issues are of such a nature that the judgment or order sought will have no practical effect or result, the appeal may be dismissed on this ground alone’. The purpose of this section was discussed by Olivier JA in Premier, Provinsie Mpumalanga en ʼn ander v Groblersdalse Stadsraad¹. He held:

‘Die artikel is, myns insiens, daarop gerig om die drukkende werklas op Howe van appèl, insluitende en miskien veral hierdie Hof, te verlig. Dit breek weg van die destydse vae begrippe soos “abstrak”, “academies” of “hipoteties”, as maatstawwe vir die uitoefening van 'n Hof van appèl se bevoegdheid om 'n appèl nie aan te hoor nie. Dit stel nou 'n direkte en positiewe toets: sal die uitspraak of bevel 'n praktiese uitwerking of gevolg hê? Gesien die doel en die duidelike betekenis van hierdie formulering, is die vraag of die uitspraak in die geding voor die Hof 'n praktiese uitwerking of gevolg het en nie of dit vir 'n hipotetiese toekomstige geding van belang mag wees nie.’

[8] In Rand Water Board v Rotek Industries (Pty) Ltd² Navsa JA affirmed the Premier, Provinsie Mpumalanga case. The import of the judgment is: (a) that s 21A is a reaffirmation of the old principle that, as stated in Geldenhuys and Neethling v Beuthin³, ‘courts of law exist for the settlement of concrete controversies and actual infringements of rights, not to pronounce upon abstract questions or to advise upon differing contentions, however important’;⁴ (b) that the effect of the section is that courts of appeal are vested with a discretion to dismiss an appeal where the judgment or order appealed against will have no practical effect and whether a judgment or order will have no practical effect is a factual issue to be decided on a case by case basis;⁵ and (c) that s 21A must be borne in mind not only at the appeal stage, but also when leave to appeal is considered.⁶ I may add that it seems to me that it is consistent with the purpose of s 21A, as explained by Olivier JA in the Premier, Mpumalanga case, and with the common law that it has replaced, that the court of first instance may also refuse leave to appeal because the judgment or order on appeal will have no practical effect. It has, in any event, been held in this court, by Chetty J in Give Ziyawa Construction CC v Ndlambe Municipality and another⁷ that ‘[a]lthough s 21A refers to an appeal, a court hearing an application for leave to appeal would be justified in refusing leave where the grant thereof would have no practical effect’.

[9] In Port Elizabeth Municipality v Smit⁸ Brand JA held that it could be argued that s 21A is ‘premised upon the existence of an issue subsisting between the parties to the litigation which requires to be decided. According to this argument s 21A would only afford this Court a discretion not to entertain an appeal when there is still a subsisting issue or lis between the parties the resolution of which, for some or other reason, has become academic or hypothetical. When there is no longer any issue between the parties, for instance because all issues that formerly existed were resolved by agreement, there is no “appeal” that this Court has any discretion or power to deal with’. He then referred, however, to the judgment of Lord Slynn of Hadley in R v Secretary of State for the Home Department, ex parte Salem⁹ in which the House of Lords recognised what may broadly be termed a public interest exception to the idea that a live issue has to exist for an appeal to be heard.¹⁰

[10] This latter question was not decided in Port Elizabeth Municipality v Smit because Brand JA was prepared to assume in favour of the appellant, without deciding, that the court had a discretion to entertain the appeal under s 21A even though there was no longer any dispute between the parties, that having been settled in terms as comprehensive as the settlement agreement in this matter. I shall approach this matter in the same way.

[11] I turn now to the facts of this case. As indicated above, the parties have settled the dispute between them in a comprehensive and all-embracing settlement. They have given specific attention to the question of the litigation between them and have decided that if leave to appeal is granted the outcome of the appeal will not affect POPCRU or the other 75 applicants in any way. In much the same way as the settlement in Port Elizabeth Municipality v Smit, ‘it is clear that a businesslike approach to the terms of the settlement leads to one conclusion only, namely that, whatever the outcome of the appeal, it will have no effect whatsoever on the respondent or on the position of the parties inter se’.¹¹ It can be concluded that there is no dispute between the parties anymore.

[12] The only possible basis for granting leave to appeal when the dispute has been settled as it has in this matter will be if the public interest requires it. I am of the view that this is not such a case, not because the issues involved are unimportant, but because there will be adequate opportunities for live disputes involving substantially the same issues to be determined by the Supreme Court of Appeal in the normal course. In the mean time, no prejudice – in the sense of dislocation of State functions or the like – is occasioned by the judgment.

[13] The application for leave to appeal is therefore dismissed with costs.

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C. PLASKET

JUDGE OF THE HIGH COURT

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