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									                                     FORM A

                                                              ECJ no : 42

                         UNION AND 75 OTHERS             APPLICANT


                         THE MINISTER OF CORRECTIONAL
                         SERVICES AND FIVE OTHERS             RESPONDENT

       Registrar: 603/2005
       Magistrate:
       Supreme Court of Appeal/Constitutional Court:



       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.

    Nature of proceedings :        APPLICATION TO REVIEW

       Topic:

       Keywords:


                                                           CASE NO: 603/2005
                                                     DATE DELIVERED:7/9/06

In the matter between:

AND 75 OTHERS                                                  APPLICANTS


AND FIVE OTHERS                                                RESPONDENTS


[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

  1998 (2) SA 1136 (SCA), 1141D-E.
  2003 (4) SA 58 (SCA).
  1918 AD 426, 441.
  Para 13.

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

  Para 14.
  Para 17. See too Western Cape Education Department and another v George 1998 (3) SA
77 (SCA), 84G; Premier, Mpumalanga en ‘n ander v Groblersdalse Stadsraad supra, 1143B:
‘Die bedoeling van art 21A van die Wet op die Hooggeregshof is klaarblyklik om die
drukkende werklas van Howe van appèl te verlig.Appèlle behoort slegs vir beregting voorgelê
te word as daar ‘n werklike, praktiese uitwerking of gevolg van ‘n uitspraak van die Hof van
appèl sal wees. Praktisyns behoort deurgaans die doel van art 21A voor oë te hou; in
besonder by ‘n aansoek om na ‘n hoër Hof te appelleer en by die voortsetting, voorbereiding
en beredenering van die appèl.’
  ECD 3 November 2004 (case no. 977/04) unreported, para 3.
  2002 (4) SA 241 (SCA), para 7.
  [1999] 2 WLR 483 (HL), 487h
   Lord Slynn of Hadlee had referred to cases ‘where there is an issue involving a public
authority as to a question of public law’ as the type of cases in which an appeal may be heard

[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

despite the absence of a live dispute. Brand JA, in Port Elizabeth Municipality v Smit supra,
para 7, criticised this formulation, pointing out that the distinction between public law and
private law is one of expediency and not principle. I have assumed that what is intended is
that a discretion to entertain an otherwise dead appeal may arise where the matter raises
important issues affecting the public interest, whether they are sourced in public law or private
   Para 6.

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


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