About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2021
>>
[2021] ZAGPPHC 215
|
|
Association of Mine Workers and Construction Union v Minister of Employment and Labour (78915/2019) [2021] ZAGPPHC 215 (6 April 2021)
IN THE
HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
REPUBLIC
OF SOUTH AFRICA
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: YES/NO
(3)
REVISED
DATE:
6 APRIL 2021
Case
Number: 78915/2019
ASSOCIATION OF MINE WORKERS
AND
CONSTRUCTION
UNION
Applicant
And
THE
MINISTER OF EMPLOYMENT AND LABOUR
Respondent
JUDGMENT
JANSE VAN NIEUWENHUIZEN J
[1]
This application concerns guidelines issued
by the respondent, the Minister of Employment and Labour (“the
Minister”)
in terms of the Labour Relations Act, 6 of 1995
(“the Act”).
[2]
The applicant, the Association of Mine
Workers and Construction Union (“AMCU”), a registered
trade union in terms of
the LRA, seeks an order that the guidelines
be reviewed and set aside in terms of the provisions of the Promotion
of Administrative
Justice Act, 3 of 2000 (“PAJA”)
alternatively
be
declared inconsistent with the principle of legality enshrined in
section 1(c) of the Constitution of the Republic of SA,
108 of
1996 and setting them aside.
THE GUIDELINES
[3]
Section 95 of the Act provides for the
registration of trade unions or employers’ organisations.
[4]
Section 95(8) provides that the Minister
may issue guidelines and reads as follows:
“
(8)
The Minister, after consultation with NEDLAC, may by notice in the
Government Gazette publish guidelines to
be applied by the registrar
in determining whether an applicant is a genuine trade union or a
genuine employers’ organisation
and guidelines for the system
of voting as contemplated in subsection (9).”
[5]
On 9 December 2018 and in Government Notice
1397,
Government Gazette
No. 42121, the Minister issued the guidelines that forms the
subject matter of this application. The guidelines pertain to
“
the
system of voting as contemplated in subsection (9)”.
[6]
Section 95(9) of the Act reads as follows:
“
(9)
For the purpose of subsection (5), ‘ballot’ includes any
system of voting by members that is recorded
and in secret.”
[7]
Section 95(5)(p) and (q) pertains to a
“
ballot”
and provides that:
“
(5)
The constitution of any trade union or employers’ organisation
that intends to register must —
(p)
provide that the trade union or employers’ organisation, before
calling a strike
or lock-out, must conduct a ballot of those of its
members in respect of whom it intends to call the strike or lock-out;
(q)
provide that members of the trade union or employers’
organisation may not be
disciplined or have their membership
terminated for failure or refusal to participate in a strike or
lock-out if-
(i)
no ballot was held about the strike or lock-out; or
(ii)
a ballot was held but a majority of the members who voted did not
vote in favour
of the strike or lock-out;”
[8]
Although section 95(5) refers to
“
trade unions that intends to
register”,
section 19 of the
Labour Relations Amendment Act, 8 of 2018 which introduced the
requirement of a secret ballot, provides as
follows:
“
19(1)
The registrar must, within 180 days of the commencement of this Act,
in respect of registered
trade unions and employers’
organisations that do not provide for a recorded and secret ballot in
their constitutions —
(a)
consult with the
national office bearers of those unions or employers’
organisations on the most appropriate means to amend
the constitution
to comply with section 95; and
(b) issue a
directive to those unions and employers’ organisations as to
the period within which the amendment to their
constitution is to be
effected, in compliance with the procedures set out in the amended
constitution.
(2)
Until a registered trade union or employers’ organisation
complies with the directive made
in terms of subsection (1)(b) and
the requirements of section
95(5)(p)and(q)of
the Act, the trade union or employer organisation, before engaging in
a strike or lockout, must conduct a secret
ballot of members.”
[9]
In the result, the guidelines that were
published by the Minister on 9 December 2018 is applicable to AMCU.
ADMINISTRATIVE ACTION
[10]
In order to rely on the provisions of PAJA,
the guidelines issued by the Minister must fall within the definition
of “
administrative action”
as defined in section 1 of PAJA,
to wit:
“
any
decision taken…by-(a) an organ of state, when – (ii)
exercising a public power or performing a public function
in terms of
legislation…..which adversely affects the rights of any person
and which has a direct, external legal effect….”
[11]
The Minster contends that the issuing of
the guidelines does not fall within the definition of an
administrative act as envisaged
by PAJA.
[12]
Mr Loxton SC, counsel for AMCU, with
reference to
Permanent Secretary of the
Department of Education of the Government of the Eastern Cape
Province and Another v Ed-U-College (PE)
2001
(2) SA 1
CC, submitted that it does. In paragraph [18] of the
judgment, the following is stated:
“
It
should be noted that the distinction drawn in this passage is between
the implementation of legislation, on the one hand, and
the
formulation of policy on the other. Policy may be formulated by the
executive outside of a legislative framework. For example,
the
executive may determine a policy on road or rail transportation, or
tertiary education. The formulation of such policy involves
a
political decision and will generally not constitute administrative
action. However, policy may also be formulated in a narrower
sense
where a member of the executive is implementing legislation. The
formulation of policy in the exercise of such powers may
often
constitute administrative action.”
[13]
The Act provides in section 95(8) for
the issuing of guidelines by the Minister. In the result, the
Minister performed a public
function in terms of legislation and the
decision to issue the guidelines complies with the first requirement
for the decision
to fall within the ambit of an administrative action
as defined by PAJA.
[14]
Mr Maleka SC, counsel for the Minister,
however, submitted that the decision does not comply with the second
requirement in that
the issuing of the guidelines does not adversely
affect the rights of AMCU or any other trade union and does not have
a direct,
external legal effect.
[15]
AMCU contends that the issuing of the
guidelines adversely affects its right to administer its own affairs.
[16]
In my view and will be more fully dealt
with
infra
,
the guidelines are peremptory and prescribe the manner in which a
trade union should conduct a ballot of members before calling
for a
strike or lock-out. In this regard, the guidelines do have an adverse
effect on AMCU’s powers to regulate its own affairs.
[17]
In the premises, I am satisfied that PAJA
does apply to the relief claimed by AMCU.
Condonation
[18]
In view of the aforesaid finding, it is
necessary to consider the issue of condonation.
[19]
Section 7(1) of PAJA provides that an
application for review should be brought within 180 days after the
day on which the applicant
was informed of the administrative action
or should reasonably have been expected to become aware of it.
[20]
The guidelines were published on 19
December 2018 and this application was served on the Minister on 23
October 2019, some ten months
later.
[21]
AMCU contends that it only became aware of
the effect of the guidelines on 20 August 2019 when it obtained an
opinion from senior
counsel. In the result, AMCU submits that the
application was brought without unreasonable delay and within the 180
day period
prescribed by section 7(1)(b) of PAJA.
[22]
Insofar as the court finds that the
application is out of time, AMCU seeks condonation in terms of
section 9(1) of PAJA. In
its founding affidavit, AMCU merely
asserted that, in view of the impact of the guidelines, it is in the
public interest and the
interests of justice to grant condonation.
[23]
No explanation was tendered for the delay
in obtaining senior counsel’s opinion.
[24]
The deponent to the answering affidavit
pointed out that AMCU did not provide any facts to explain the delay
in bringing the application.
[25]
In response and rather belatedly, AMCU in
its replying affidavit explained in detail what transpired from
November 2018 until the
application was brought in October 2019.
[26]
The reasons for the delay should have been
set out in the founding affidavit and the belated effort to rectify
its failure to do
so does not avail AMCU.
[27]
I am, however, of the view that the relief
claimed herein is in the public interest, at least insofar as trade
unions are concerned
and in exercising my discretion condone the late
filing of the application.
GROUNDS OF REVIEW AND
SUBMISSIONS
[28]
The first ground of review is based on the
provisions of section 6(2)(a)(i) of PAJA which provides for the
judicial review
of an administrative action that was not authorised
by the empowering section. In the event, that the decision falls
outside the
scope of the empowering provision the decision is
ultra
vires
and stands to be reviewed and set
aside.
Ultra vires
[29]
Paragraph 1 of the guidelines states that
the guidelines are published in terms of section 95(9) of the
Act. The applicant
contends that section 95(8) provides for the
issuing of guidelines and that the Minister in issuing the guidelines
in terms
of section 95(9) of the Act acted
ultra
vires.
[30]
Mr Maleka submitted that subsections (8)
and (9) should be read together and that the reference in subsection
(8) to subsection
(9) makes it clear that as long as the Minister
invokes subsection (8) in deciding to issue the guidelines, the
guidelines may
be issued in terms of subsection (9) of the Act.
[31]
Mr Maleka, furthermore, asserted that the
Minister’s predecessor did invoke subsection (8) in issuing the
guidelines and as
a result the
ultra
vires
point is misguided.
[32]
The submission does not assist the
Minister. Section 95(8) expressly empowers the Minister to issue
guidelines “
for the system of
voting as contemplated in subsection (9)”.
Subsection
(9) does not confer a similar power on the Minister.
[33]
Mr Loxton with reference to
Minister
of Education v Harris
2001 (4) SA 1297
CC emphasised the legislative imperative to act within the powers
granted by the enabling legislation.
[34]
I agree.
[35]
The further problem with the guidelines is
to be found in paragraph 9. Although paragraph 9 states that the
guidelines “
are indicative of the
procedures that should be followed when conducting a secret ballot”,
the subparagraphs are couched in
mandatory terms, namely:
[35.1] Paragraph 9.1: “
Reasonable
notice
must
be given to members of a ballot….”
[35.2] Paragraph 9.2: “
The
notice
must
specify the time and place of the
ballot.”
[35.3] Paragraph 9.3: “
The
question that is the subject of the ballot
must
be clearly phrased, and
must
be consistent with
the terms of the dispute referral.
[35.4] Paragraph 9.4: “
Ballot
papers
must
be prepared in accordance ….”
[35.5] Paragraph 9.5: “
Ballots
must
not contain….”
[35.6] Paragraph 9.6: “
A
ballot
must
be conducted in terms of ….”.
[36]
AMCU submits that the mandatory provisions
in the Guidelines are not provided for in the empowering section,
section 95(8), which
provides that
guidelines
may be issued by the Minister for the system of voting contemplated
in subsection 9 and is as a result
ultra
vires
.
[37]
Mr Maleka submitted that, although the word
“
must”
is
used in some of the subparagraphs, the introductory portion of
paragraph 9 makes it clear that the guidelines are only “
indicative”
of the procedures that should be
followed. In the result, the word “
must”
,
although normally associated with a mandatory provision, is not
mandatory in the context of the guidelines as a whole.
[38]
There is nothing ambiguous in the word
“
must”
in
the context of the guidelines as a whole. In
Natal
Joint Municipal Pension Fund v Endumeni Municipality
2012
(4) SA 593
SCA at paragraph [25] the court explained the
interpretation of a word in a statute as follows:
“
Which
of the interpretational factors I have mentioned will predominate in
any given situation varies. Sometimes the language of
the provision,
when read in its particular context, seems clear and admits of little
if any ambiguity. Courts say in such cases
that they adhere to the
ordinary grammatical meaning of the word used. However, that too is a
misnomer. It is a product of a time
when language was viewed
differently and
regarded
as likely to have a fixed and defined meaning; a view that the
experience of lawyers down the years, as well as the study
of
linguistics, has shown to be mistaken. Most words can bear several
different meanings or shades of meaning and to try to ascertain
their
meaning in the abstract, divorced from the broad context of their
use, is an unhelpful exercise. The expression can mean
no more than
that, when the provision is read in context, that is the appropriate
meaning to give to language used.”
[39]
In casu,
the
word “
must”
does
not have a different meaning other than the normal mandatory
obligation it imposes on trade unions to comply with the prescripts
contained in paragraphs 9.1 to 9.6.
[40]
Section 95(8) does not empower the Minister
to impose mandatory obligations on trade unions and to this end the
paragraphs mentioned
supra
is
also
ultra vires.
[41]
In view of the finding
supra
,
I do not deem it necessary to consider the remainder of the grounds
of review.
ORDER
[42]
In the premises, I issue the following
order:
1.
Condonation is granted for the late filing
of the application in terms of
section 9
of the
Promotion of
Administrative Justice Act 3 of 2000
.
2.
The
Guidelines
Issued in Terms of Section 95(9) of the Labour Relations
Amendment Act 8 of 2018
, published in
Government Notice 1397,
Government
Gazette
No. 42121 dated 19 December
2018, is set aside.
3.
The Respondent is ordered to pay the costs
of the application, such costs to include the costs of two counsel.
N. JANSE VAN NIEUWENHUIZEN
JUDGE OF THE HIGH COURT OF
SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
DATE
HEARD PER COVID19 DIRECTIVES:
17 March 2021
(Virtual
hearing.)
DATE
DELIVERED PER COVID19 DIRECTIVES:
06 April 2021
APPEARANCES
Counsel for
the Applicant:
Advocate C. Loxton SC and
Advocate P.J. Daniell
Instructed
by:
LDA Attorneys Incorporated
Counsel
for the Respondent:
Advocate V. Maleka SC and
Advocate S. Tilly
Instructed
by:
The State Attorney Office