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[2013] ZAKZPHC 9
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Valuline CC and Others v Minister of Labour and Others (5642/2011) [2013] ZAKZPHC 9; 2013 (5) BCLR 589 (KZP); [2013] 6 BLLR 614 (KZP); (2013) 34 ILJ 1404 (KZP); 2013 (4) SA 326 (KZP) (13 March 2013)
IN THE
HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
HIGH COURT, PIETERMARITZBURG
CASE NO: 5642/2011
In the
matter between:
VALULINE
CC
...............................................................................................
First
Applicant
AFRIKA
HK MANUFACTURING (PTY) LTD
...........................................
Second
Applicant
SATCOTRADE
(PTY) LTD
...........................................................................
Third
Applicant
JCR
CLOTHING CC
...................................................................................
Fourth
Applicant
GOLD
SHU-LIN CLOTHING CC
....................................................................
Fifth
Applicant
UNITED
CLOTHING AND TEXTILE
ASSOCIATION
...............................................................................................
Sixth
Applicant
and
THE
MINISTER OF LABOUR
...................................................................
First
Respondent
THE
NATIONAL BARGAINING COUNCIL
FOR THE
CLOTHING MANUFACTURING
INDUSTRY
...........................................................................................
Second
Respondent
SOUTH
AFRICAN CLOTHING AND
TEXTILE
WORKERS’ UNION
..................................................................
Third
Respondent
THE
EMPLOYEES OF FIRST APPLICANT
..........................................
Fourth
Respondent
THE
EMPLOYEES OF SECOND APPLICANT
........................................
Fifth
Respondent
THE
EMPLOYEES OF THIRD APPLICANT
............................................
Sixth
Respondent
THE
EMPLOYEES OF FOURTH APPLICANT
...................................
Seventh
Respondent
THE
EMPLOYESS OF FIFTH APPLICANT
..........................................
Eighth
Respondent
THE
EMPLOYEES OF THE MEMBERS OF SIXTH
APPLICANT
.............................................................................................
Ninth
Respondent
J U D G M E N T
______________________________________________________________________
KOEN
J
:
INTRODUCTION
:
[1] The first, second, third, fourth and fifth applicants, and the
one hundred plus employers associated in the sixth applicant,
all
conduct their business in the ‘clothing industry’, as
that term is defined in the National Main Collective Agreement
(‘the
collective agreement) of the second respondent, the National
Bargaining Council for the Clothing Manufacturing Industry.
[2] This collective agreement was the result of negotiations in the
second respondent between certain employer organisations and
the
third respondent, the South African Clothing and Textile Workers’
Union, the only registered trade union representing
employees in the
second respondent. The collective agreement contains binding
provisions including
inter alia
minimum wages payable to
workers in the clothing industry.
[3] The applicants are not or have chosen not to be members of or to
be represented in the second respondent. They were thus not
party to
any such negotiations and not signatories to the collective
agreement.
[4] The collective agreement was subsequently extended by the first
respondent to the applicants and other non-signatories (hereinafter
all collectively referred to as the ‘non-parties’)
pursuant to a request made by the second respondent to the first
respondent in terms of s 32 of the Labour Relations Act No. 66 of
1995 (‘the LRA’)
1
to make the collective agreement generally applicable in the clothing
industry. This extension (referred to in the application
as ‘the
decision’) was published in the
Government Gazette
No
33893, GNR 1220 of 24 December 2010. The extension is effective from
3 January 2011.
[5] It is this decision of the first respondent to extend the
application of the collective agreement to non-parties which is the
subject matter of this litigation.
THE RELIEF CLAIMED
:
[6] The Applicant’s claim the following relief in terms of
their amended notice of motion:
‘
1.
Reviewing and setting aside the decision of the First Respondent to
extend the National Main Collective Agreement of the National
Bargaining Council for the Clothing Manufacturing Industry to
non-parties in the clothing industry (including the first to fifth
applicants) as published in Government Gazette No. 33893, GNR 1220 of
24 December2010, under the heading “
National
Bargaining Council for the ClothingManufacturing Industry: Extension
to Non-Parties of the National Main Collective Re-enacting
and
Amending Agreement”.
2. In the alternative:
2.1 declaring
section 32
of the
Labour Relations Act No. 66 of 1995
to be unconstitutional;
2.2 setting aside the First
Respondent’s aforesaid decision.
3. Ordering the First Respondent
to pay the costs of this application, and in the event of the Second
Respondent opposing the application,
ordering the Respondents to pay
the costsof the application, jointly and severally the one paying the
other to be absolved.
4. Granting the Applicants such
further and/alternative relief as this Honourable Court may deem
fit.’
THE BASIS ON WHICH THE RELIEF IS CLAIMED
:
[7] In broad terms the applicants rely on the principle of legality
and on the provisions of the Promotion of Administrative Justice
Act
3 of 2000 (‘PAJA’) as basis to impugn the decision.
Reliance on PAJA presupposes the decision to be ‘administrative
action’. Whether the decision constitutes administrative action
is irrelevant to a review based on the principle of legality.
[8] In the alternative to the review, a declaration is sought that
the provisions of s 32 are constitutionally invalid. This declaration
is sought on the basis that the provisions of s 32 offend against
certain fundamental rights contained in chapter 2 of the Constitution
of the Republic of South Africa, 1996, notably freedom of trade,
occupation and profession,
2
freedom of an association,
3
equality,
4
human dignity
5
and just administrative action.
6
The constitutional validity of s 32 only arises if no
non-constitutional basis exists upon which a review may succeed.
PRELIMINARY ISSUES
:
[9] The first to third respondents
inlimine:
(a) challenge the jurisdiction of this court to entertain the
application for the relief claimed;
(b) raised the alleged initial fatal non-joinder of the employees of
the applicants;
(c) challenged the
locus standi in iudicio
of the sixth
applicant to act on behalf of its members.
The alleged fatal non-joinder of the applicants’ employees was
cured by them being joined as the fourth, fifth, sixth, seventh,
eighth and ninth respondents respectively. Apart possibly from the
issue of liability for the costs relating to such joinder, this
defence requires no further comment.
The
locus standi iniudicio
of the sixth applicant to act on
behalf of its members has also been accepted and this point was not
persisted with.
The only point
in limine
remaining is the one of the
jurisdiction of this court. It will be considered below
ANCILLIARY ISSUES
:
[10] A number of ancillary issues arise from the papers, including:
(a) The striking out of:
(i) the report of professors Cheadle and Thompson on the grounds that
their report contains inadmissible opinion and hearsay evidence
(and
failing it being struck out, their independence and hence the
reliability of the report being questioned); and
(ii) certain alleged unfounded and scurrilous allegations in the
answering affidavits;
(b) The contention that the applicant’s application is
premature as they have not exhausted what was referred to as ‘an
internal remedy’ available to them, or alternatively that they
had misconceived their remedy as they should first have applied
for
exemptions from the provisions of the collective agreement in
accordance with the exemption procedure provided in the collective
agreement, as required by s 32(3)(e) and (f);
(c) The failure of the first respondent to have filed an affidavit
personally, the application having been opposed on her behalf
by the
Chief Director; Labour Relations in the Department of Labour.
In view of the conclusion to which I have come it is not necessary to
deal with the applications to strike out, and the issue whether
the
applicants indeed had an internal remedy available to them, or
whether they misconceived their remedy in not first applying
for an
exemption. The third issue above also fell away as the first
respondent subsequently filed a confirmatory affidavit. This
point
was accordingly not persisted with.
THE STRUCTURE OF THIS JUDGMENT
:
[11] In the light of the view I take of the matter, many issues
raised as a basis to challenge the validity of the decision, or
as a
defence to the challenge, are not necessary to deal with. Interesting
and persuasive as some of the detailed arguments in
respect of such
issues may be, I refrain from commenting thereon. They will have to
remain for debate in future litigation, should
the need arise.
[12] The crucial issues arising for consideration on the merits of
this application are:
(a) Whether the requirements of s 32(3) were satisfied,
7
(b) If not, whether the decision is reviewable on the principle of
legality,
8
(c) Whether this court has the jurisdiction to entertain such review.
[13] I have concluded that the first respondent’s decision to
extend the collective agreement falls to be reviewed in accordance
with the principle of legality for non-compliance with s 32(3)(c) for
the reasons which will appear below. In the light of that
conclusion,
this judgment will firstly deal with the jurisdiction of this court
to entertain such a review and grant relief pursuant
thereto based on
the principle of legality; consider the nature of the first
respondent’s decision to extend a collective
agreement; and
consider the specific requirement of s 32(3)(c) and whether this
requirement was complied with, specifically whether
it was sufficient
for the first respondent to have relied on a ‘certificate of
representivity issued pursuant to s 49(4).
9
In conclusion the appropriate relief to be granted will be
discussed,
10
and finally costs.
JURISDICTION
:
[14] In the light of my conclusion, the specific enquiry here is
whether a review of the decision of the first respondent in terms
of
s 32 to extend the collective agreement to non-parties on the grounds
on non-compliance with the principle of legality, is an
issue or
relief falling exclusively within the jurisdiction of the labour
court in terms of s 157, which if not, will mean that
this court has
such jurisdiction.
[15] In terms of section 1(c) of the Constitution, the Republic of
South Africa is founded on the value
inter alia
of:
‘
Supremacy
of the Constitution and the Rule of Law’.
That is the foundation for the legality principle.
11
[16] It is common cause, alternatively not disputed, that:
(a) The first respondent is an organ of state as contemplated in s
239 of the Constitution.
(b) Extending the operation of a collective agreement clearly
involves the exercise of a public power.
(c) Any review of such a public power by the first respondent in
accordance with the principle of legality would constitute a
‘constitutional matter’.
[17] In terms of s 169 of the Constitution:
‘
A High
Court may decide
(a) any constitutional matter
except a matter that –
(i) only the Constitutional
Court may decide; or
(ii) is assigned by an Act of
Parliament to another court of a similar status to a High Court;
(b) any other matter not
assigned to another court by an Act of Parliament’.
[18] As is apparent from section 169 of the Constitution, and held in
Fredricks v MEC for Education and Training, Eastern Cape,
12
the
exclusion of the high court’s jurisdiction, by it being
‘assigned by an Act of Parliament to another court of a
similar
status to a high court’ or it being ‘assigned to another
court by an Act of Parliament’, would have to
be express, or at
least necessarily implied. This is not lightly inferred.
[19] In
City of Tshwane Metropolitan Municipality v Engineering
Council of SA and Another
13
it was held:
‘
There
was a strong body of authority prior to the Constitution that held
that the jurisdiction of the then Supreme Court was not
lightly
excluded [
Paper,
Printing, Wood and Allied Workers’ Union v Pienaar NO and
Others
[1993] ZASCA 98
;
1993
(4) SA 621
(A) at 635A – C]. That is now reinforced by the
Constitution, which provides in s 169(b) that the High Court may
decide any
matter not assigned to another court by an Act of
Parliament’.
[20] The respondents however contend that the jurisdiction of the
High Court to entertain a review of the first respondent’s
decision to extend a collective agreement to non-parties, has been
‘assigned’ to the Labour Court exclusively. For
this
contention, reliance was placed only on the provisions of the LRA,
14
as the ‘Act of Parliament’ which has allegedly assigned
that matter i.e. a review on the grounds of legality, to the
Labour
Court.
[21] S 157
15
provides:
‘
Jurisdiction
of Labour Court -
(1) Subject to the Constitution
and section 173, and except where
this
Act
provides
otherwise, the Labour Court has exclusive jurisdiction in respect of
all matters that elsewhere in terms of
this
Act
or in terms of
any other law are to be determined by the Labour Court.
(2) The Labour Court has
concurrent jurisdiction with the High Court in respect of any alleged
or threatened violation of any fundamental
right entrenched in
Chapter 2 of the Constitution of the Republic of South Africa, 1996,
and arising from –
(a) employment and from labour
relations;
(b) any
dispute
over the constitutionality of
any executive or administrative act or conduct, or any threatened
executive or administrative act
or conduct, by the State in its
capacity as an employer; and,
(c) the application of any law
for the administration of which the
Minister
is responsible.’
[22] Section 158 provides:
‘
Powers
of Labour Court –
(1) The Labour Court may –
(a) make any appropriate order,
including –
(i) the grant of urgent interim
relief;
(ii) an interdict;
(iii) an order directing the
performance of any particular Act which order, when implemented, will
remedy a wrong and give effect
to the primary objects of
this Act
;
(iv) a declaratory order;
(v) an award of compensation in
any circumstances contemplated in
this Act
;
(vi) an award of damages in any
circumstances contemplated in
this Act;
and
(vii) an order for costs;
(b) order compliance with any
provision of
this Act
;
(c) make any arbitration award
or any settlement agreement an order of the Court;
(d) request the Commission to
conduct an investigation to assist the Court and to submit a report
to the Court;
(e) determine a
dispute
between a registered
trade union
or registered
employers’
organisation
and any one of the members or applicants for
membership thereof, about any alleged non-compliance with –
(i) the constitution of that
trade union
or
employers’ organisation
(as the
case may be); or
(ii) section 26(5)(b);
(f) subject to the provisions of
this Act
, condone the late filing of any document with, or the
late referral of any
dispute
to, the Court;
(g) subject to section 145,
review the performance or purported performance of any function
provided for in
this Act
on any grounds that are permissible
in law;
(h) review any decision taken or
any act performed by the State in its capacity as employer, on such
grounds as are permissible
in law;
(i) hear and determine any
appeal in terms of section 35 of the Occupational Health and Safety
Act, 1993 (Act No. 85 of 1993); and,
(j) deal with all matters
necessary or incidental to performing its functions in terms of
this
Act
or any other
law.’
[23] Exclusive jurisdiction is conferred on the Labour Court in terms
of s 157, subject to the Constitution and s 173,
16
only where any other law
17
or ‘
this Act’
(the LRA) provides that it is a
matter ‘to be determined by the Labour Court’.
[24] Both the Supreme Court of Appeal in
Fedlife Insurance Limited
v Wolfaardt
18
and the Constitutional Court in
Fredericks and Others v MEC for
Education and Training, Eastern Cape and Others
19
have
held that s 157(1) does not purport to confer exclusive jurisdiction
upon the Labour Courtgenerally in respect of employment
–
related matters.
[25] The respondents primarily rely on s 158(1)(g) as being the
provision in ‘
this Act
’ in terms whereof a review
of any function provided for in the
Act
on any grounds
permissible in law, ‘is to be determined by the Labour Court’
exclusively as contemplated by s 157(1).
[26] The express requirement in s 157 that the subject matter of the
dispute must be one of a range of ‘matters’ which
‘
is
…
to be determined’
20
by the Labour Court’, must be contrasted to powers conferred on
the Labour Court and which it ‘
may’
21
exercise when it decides any dispute.
22
S 158(1)(g) does not provide expressly that such a review ‘is’
a ‘matter’ which ‘is … to be
determined by
the Labour Court’, but merely that it is a matter that ‘the
Labour Court
may
’ review.
[27] As the provisions of the LRA do not expressly, or by necessary
implication, provide that such a review is to be determined
by the
Labour Court, the jurisdiction of the High Court to determine such
reviews is not ousted and jurisdiction of the Labour
Court therefore
not exclusive.
[28] The interpretation of the provisions of s 158(1)(e) do not arise
in this application, except to the limited extent that it
might
affect the proper interpretation to be given to s 158(1)(g). S
158(1)(e), in referring to ‘
determine
a dispute’,
might be closer to complying with the requirement of s 157(1)
conferring exclusive jurisdiction on the Labour
Court in respect of
matters that ‘are to be
determined
by the Labour Court’,
as contended for by the respondents. Nevertheless, I am not persuaded
that it does. The correct interpretation
of s 158(1) is simply that
it confers enabling powers on the Labour Court. S158 does not provide
for matters of substantive jurisdiction.
23
[29] What s 158(1)(g) does is to provide and place it beyond any
doubt that where the Labour Court has jurisdiction in a particular
matter, whether exclusive or in a situation of concurrent
jurisdiction with the High Court,
24
and the subject matter of such dispute entails a review and relief
consequent upon a review, that the Labour Court will have the
power
to review the performance or purported performance of any such
function.
[30] S 158(1)(g) confers on the Labour Court the power that it ‘may
... review’ the performance of any function, similar
to the
balance of the provisions in s 158(1) conferring on the Labour Court
the power, if warranted, that it may make any appropriate
order,
25
including the grant of urgent interim relief,
26
an interdict,
27
an order directing the performance of any particular act,
28
a declaratory order,
29
an award of compensation in circumstances contemplated in the LRA,
30
an award of damages in any circumstances contemplated in the LRA,
31
an order for costs,
32
etc. all as contemplated in s 158(1).
[31] If the respondent’s interpretation of s 158(1)(g) that the
granting of the permissive power to review contained in s
158(1)(g)
constitutes a direction that any matter involving a review ‘is
to be determined’ by the Labour Court, whether
express or by
necessary implication, as contemplated in s 157(1), thus conferring
exclusive jurisdiction on the Labour Court, then
by parity of
reasoning, any dispute in respect of which ‘any appropriate
order’
33
may be granted would also confer exclusive jurisdiction on the Labour
Court. That would entail exclusive jurisdiction being conferred
on
the Labour Court in probably almost all matters that could
conceivably come before it with reference to the kind of relief that
may be granted, rather than with reference to the cause of action
relied upon. An exception to the express provisions of section
169 of
the Constitution should not be inferred that readily and can
certainly not be implied by any considerations of necessity.
[32] The proper construction of s 158(1)(g) is that if the Labour
Court has jurisdiction in respect of the subject matter of the
litigation (specifically relating to any function provided for in the
LRA as contemplated in s 158(1)(g)), that it will then have
the power
to grant the remedy of review in respect of such subject matter.
Thus, the review of a decision of the Minister of Labour
to extend a
collective agreement of the Metal and Engineering Industries
Bargaining Council to non-members to that agreement, would
clearly be
a matter falling within the jurisdiction of the Labour Court as it is
expressly provided with the power to ‘review
the performance
... of any function [in terms of s 32] provided for in
this Act’
as happened in the
Neasa
judgment.
34
But this does not mean that the Labour Court has exclusive
jurisdiction to entertain such a review.
[33] The provisions of s 158(1)(g) granting permissive powers to the
Labour Court are a far cry from the kind of specific provisions
directing that certain disputes are to be ‘determined by the
Labour Court’, provided for in the LRA for example in
relation
to disputes about unfair dismissals and unfair labour practices.
35
[34] The third respondent also relied on the provisions of s 63(1)
and (4) for its contention that this court lacks jurisdiction
to
entertain the present application.
[35] S 63 of the LRA provides:
‘
(1)
Any party to a
dispute
about the interpretation or application of Parts A and C to F of this
Chapter [s 32 falls in part C of the Chapter], may refer
the
dispute
in writing to the Commission unless-
(a) the
dispute
has
arisen in the course of arbitration proceedings or proceedings in the
Labour Court; or
(b) the
dispute
is
otherwise to be dealt with in terms of Parts A and C to F;
(2) The party who refers the
dispute
to the Commission must satisfy it that a copy of the
referral has been
served
on all the other parties to the
dispute
.
(3) The Commission must attempt
to resolve the
dispute
through conciliation.
(4) If the
dispute
remains
unresolved, any party to the
dispute
may refer to the Labour
Courtfor adjudication’.
S 63 forms part of Part F under the heading ‘General provisions
concerning councils’ i.e. bargaining councils.
[36] Again, s 63 employs the permissive term ‘may’. It
does not provide that any such ‘dispute’, assuming
it to
include a decision of the first respondent to extend the Collective
Agreement to non-parties, is a ‘matter to be determined
by the
Labour Court’. Any such dispute may be referred by any party
thereto to the Commission. It is only ‘(i)f’
the dispute
remains unresolved…(that) …any party to the dispute
may
refer it to the Labour Court for adjudication’.
36
The circumstance contemplated by s 63 is therefore a dispute which
could
37
be determined by the Commission and which only if the Commission
cannot resolve it then ‘may’
38
be referred to the Labour Court for adjudication.
39
The present review does not entail such a ‘dispute’.
[37] In view of my aforesaid conclusion, it is unnecessary to
consider the exact parameters of s 157(2) and whether it includes
reviews based on PAJA, or whether it is confined to any alleged
infringement of s 33 of the Constitution, but not infringements
of
PAJA.
[38] In my judgment this court has jurisdiction, concurrent with the
Labour Court, to entertain a review of the first respondent’s
decision based on the principle of legality.
THE NATURE OF THE FIRST RESPONDENT’S DECISION
:
[39] S 23(5) of the Constitution provides:
‘
Every
trade union, employer’s organisation and employer has the right
to engage in collective bargaining. National legislation
may be
enacted to regulate collective bargaining. To the extent that the
legislation may limit a right in this Chapter, the limitation
must
comply with section 36(1)’.
[40] One of the primary aims of the LRA, contained in its preamble
and s 1, is ‘to promote and facilitate collective bargaining
at
work place and at sectoral level’. The key bargaining
institution under the LRA is the bargaining council,
in casu
the
second respondent, membership of which is voluntarily. Negotiating
and concluding a collective agreement is an inherent part
of that
process.
[41] S 23(1) of the LRA specifically provides that the legal effect
of such a collective agreement is that it binds:
‘
(a)
the parties to the
collective
agreement
;
(b) each party to the
collective
agreement
and the
members of every other party to the
collective
agreement
, insofar as
the provisions are applicable between them’.
[42] Authors like Godfrey, Maree, Du Toit and Theron:
CollectiveBarging in SA
40
and
Du Toit
et alLabour Relations Law:AComprehensive Guide
41
state
that the power of the first respondent to extend collective
agreements of bargaining councils to non-members within a bargaining
council’s registered scope,
42
is of critical importance in ensuring the continued existence of the
bargaining council system.
[43] Accordingly, the respondents contend that the first respondent’s
power to extend a collective agreement is narrowly
circumscribed: If
the first respondent is satisfied that ss (a) to (g) of s 32(3) have
been complied with, she, in the wording
of ss (2) ‘
must
extend the c
ollective agreement
, as requested, by publishing a
notice in the Government Gazette ...’
43
Particular situations of hardship of manufacturers in the industry to
whom the collective agreement is extended need to be addressed
through the exemption system provided for in any such collective
agreement.
44
The LRA places primacy on collective bargaining and industry–wide
centralised self-determination, thus leaving it to the
industry
parties to determine inter alia the rate at which wages are set.
[44] The structure of the collective bargaining process as contained
in the LRA clearly is aimed at providing controls against
significant
adverse effects on economic welfare including employment, while at
the same time establishing minimum standards of
employment through a
system of self-administration. The controls in achieving this include
inter alia
:
(a)
The requirement of
majority or sufficient representation;
(b) The fact that negotiating parties themselves will set the terms
of their agreement including wages and that where unduly onerous,
provision is made for exemption.
[45] With those brief introductory comments, it requires to be noted
that two mechanisms are created in terms of s 32 by which
collective
agreements concluded in bargaining councils may be extended by the
first respondent to non-parties, namely that pursuant
to s 32(2) and
that pursuant to s 32(5). The requirements in terms of s 32(2) are
mandatory, having regard to the use of the imperative
term ‘must’,
whereas the procedure provided for in terms of s 32(5) is
discretionary, having regard to the wording
that ‘
the
Minister
may
extend a C
ollective Agreement’
apparently
regardless of the representativeness requirement in ss 3(b) and (c),
provided she is satisfied in respect of the requirements
in s
32(5)(a) and (b). Since the first respondent did not rely on s 32(5)
when she decided to extend the collective agreement in
the present
matter, it is not necessary to consider the nature and extent of the
threshold requirements in regard to that procedure
any further in
this judgment.
[46] There is no dispute between the parties that the first
respondent must be satisfied in regard to the threshold requirements
specified in s 32(3)(a) to (g) before she ‘must’ extend a
collective agreement in accordance with any request for its
extension.
[47] The applicants however contend that when deciding whether to
extend a collective agreement to non-parties in terms of s 32(2)
the
first respondent is obliged to consider the impact of such extension
particularly the potential job losses in the sector concerned.
It is
not disputed by the respondents that the first respondent did not
take any such consequence of her decision into account
in extending
the collective agreement to non-parties. In view of the conclusion to
which I have come it is not necessary to decide
this issue either.
45
[48] In my view the first respondent enjoys no discretion in terms of
s 32 once ‘satisfied’ as to the threshold requirements
in
s 32(3)(a) to (g). S 32(2) requires that within 60 days of receiving
a request from Bargaining Council, the Minister ’
must
’
extend the agreement by publishing it in the Government Gazette. This
is a peremptory requirement and the extension of the
collective
agreement must follow once the Minister is satisfied in regard to the
requirements in s 32(3); but once so satisfied
she has no discretion
not to extend the agreement.
[49] This circumscription of the first respondent’s power and
obligation in terms of s 32 appears to suggest a deliberate
policy
choice and a deviation from the practice which previously prevailed
where the first respondent had a discretion. In terms
of s 48 of the
Labour Relations Act No. 28 of 1956, the first respondent had a wide
discretion as to whether or not to extend a
collective agreement to
non-parties. S 49 of that Act provided that:
‘
...
the Minister
may
,
if he deems it expedient to do so, at the request of a counsel ...
extend their agreement to non-parties in the particular industry
concerned’.
46
[50] This interpretation is also consistent with that in the
Neasa
decision
47
where it was held that:
‘
The
use of the word “must” in s 32(2) makes it plain that
unless any of the provisions of s 32(3) precludes the extension
of an
agreement that otherwise complies with the provisions of s 32(1), the
minister has no discretion but to extend the collective
agreement to
non-parties within the time period and in the manner provided for in
s 32(2)’.
[51] S 32(3) sets out the ‘jurisdictional facts’ which
must exist if a collective agreement is to be extended lawfully
to
non-parties. On any party’s approach to the application the
express requirement in s 32(3)(a) to (d) were required to
be complied
with as jurisdictional prerequisites. What the threshold requirements
in s 32(3) entail, are questions of statutory
interpretation.
[52] In my view s 32(3)(c) was not complied with, which renders a
determination of whether any further additional requirements
or
considerations relating to potential job losses were to be implied
unnecessary to decide.
THE REQUIREMENTS OF S 32(3)(c)
:
[53] In the
Neasa
decision Van Niekerk J held:
Accordingly, for the purposes of
s 32(3)(b) and (c), before deciding to agree a valid request from a
Bargaining Council to extend
a Collective Agreement to non-parties,
the Minister must determine the scope of the agreement that is sought
to be extended, and
for the purposes of compliance with the majority
threshold requirements, thereafter be satisfied of two things. The
first is that
the majority of those employees who fall within the
scope of the agreement are members of trade unions that are parties
to the
council. The second is that the majority of employees who will
fall within the scope of the agreement are employed by employers
who
are members of employer’s organisations that are parties to the
council’.
[54] As to what is required and meant by the first respondent being
‘satisfied’ the following is relevant:
(a) Professor Hoexter in
Administrative Law in SA
48
states:
‘
Since
the decision in
Hurley
the
courts have treated “reason to believe” and similar
clauses objectively, and this is evident in the recent case
law. But
what about clauses that are more obviously subjective, such as “is
satisfied”? Even before 1994 there was
some judicial
acknowledgment that a subjective opinion is not unfettered.
Nevertheless, such clauses are deliberately used by the
legislature
to signal wide discretionary power and thus to minimise the scope of
judicial review. Does the advent of the Constitutional
era make them
less effective in this regard?
The answer must be yes,
inevitably so. First, the right to lawful administrative action in s
33(1) of the Constitution implies that
the courts must be able to
satisfy themselves as to the lawfulness of administrative action,
including any factual assumptions
on which that action is based ...
The effect of
Walele
is to make all jurisdictional
facts objectively justiciable whatever their wording’.
(b) In
Walele v City of Cape Town and Others
[2008] ZACC 11
;
2008 (6) SA 129
(CC) at para 60 the Constitutional Court held:
‘
[i]n
the past, when reasonableness was taken as a self-standing ground for
review, the City’s
ipse
dixit
could
have been adequate. But that is no longer the position in our law.
More is now required if the decision makers opinion is
challenged on
the basis that the subjective precondition did not exist. The
decision-maker must now show that the subjective opinion
it relied on
for exercising power was based on reasonable grounds. In this case it
cannot be said that the information, which the
city admitted had been
placed before the decision-maker, constituted reasonable grounds for
the latter to be satisfied.’
[55] The requirement is not whether the requisite majority was in
fact employed by members of party employer’s organisations,
but
whether the Minister was ‘satisfied’ objectively of this
at the time of exercising her power.
[56] Not being thus ‘satisfied’ can entail, as indicated
in
SA Defence and AID Fund and Another v Minister of Justice,
49
that the Minister as repository of the power acted
mala fide,
or from ulterior motive, or failed to apply her mind to the matter.
In casu
the former two possibilities have not been suggested.
Reliance was only placed on her failure to apply her mind properly to
the
matter.
[57] Whether the first respondent properly applied her mind to the
issue of representation or representivity is objectively justiciable.
[58] It must be accepted that the number of employees employed in a
particular industry and which would fall within the scope of
an
extended collective agreement, is in a constant state of fluctuation
due to continuous hiring and termination of employment
for whatever
reason. The level of representation at a particular point in time is
therefore always at best assessed on the basis
of objective evidence
or information placed before the first respondent at the time that
the request to extend the collective agreement
is made, and in
relation to which she then concludes that she is so ‘satisfied’.
[59] It is not the respondents’ case that the first respondent
actually attempted to gauge the representivity of employers,
or was
presented with any kind of data which demonstrated objectively that
the representivity requirement in s 32(3)(c) was met.
Rather it is
contended that in satisfying herself that the requirements of s
32(3)(c) were met, the first respondent relied upon
a certificate of
representativeness issued by the Registrar of Labour Relations in
terms of s 49(4) of the LRA, which she accepted
as being decisive.
[60] S 49 of the LRA, which forms part of ‘Part F –
General provisions concerning councils’ provides:
‘
Representativeness
of council –
(1) When considering the
representativeness of the parties to a
council,
or parties
seeking registration of a
council
, the
registrar
,
having regard tothe nature of the
sector
and the situation of
the
area
in respect of which registration is sought, may
regard the parties to a
council
as representative in respect
of the whole
area
even if a
trade union
or
employer’s
organisation
that is a party to the
council
has no members
in part of that
area.
(2) A
bargainingcouncil
having a
collective agreement
that has beenextended by the
Minister
in terms of section 32, must inform the
registrar
annually in writing, on a date to be determined by the
registrar
as to the number of
employees
who are –
(a) covered by the
collective
agreement
;
(b) members of the
trade
unions
that are parties to the agreement;
(c) employed by members of the
employers’ organisations
that are party to the
agreement.
(3) A
bargaining council
must on request by the
registrar
inform the
registrar
in
writing within the period specified in the request as to the number
of employees who are –
(a) employed within the
registered scope
of the
council
;
(b) members of the
trade
unions
that are parties to the
council
;
(c) employed by members of the
employer’s organisations
that are party to the
council.
(4) A determination of the
representativeness of a
bargaining council
in terms of this
section is sufficient proof of the representativeness of the
council
for the year following the determination.
(5) This section does not apply
to the
public service.
’
[61] The s 49 certificate certified amongst other things that 51% of
the employees falling within the second respondent’s
registered
scope, that is within the clothing industry as defined in its
registration certificate, were employed by members of
the employer’s
organisations which are parties to the council.
50
The submission is that this certificate was valid at the time when
the extension was made on the 24 December 2010, and in the absence
of
a review and setting aside of the certificate, it remained valid and
of full legal force and effect.
[62] S 32(3)(b) and (c) are evidently designed to ensure a form of
majoritarism by requiring that a majority of the persons bound
by a
collective agreement after its extension, were through
representatives on the Bargaining Council, party to the conclusion
of
that agreement and bound thereby. In terms of s 32(3)(c) employers
must employ more than 50% of the employees who fall in the
scope of
the agreement after it has been extended.
[63] The schedule attached to the Bargaining Council’s
application to the first respondent for extension of the collective
agreement recorded that employer’s organisations that were
party to the collective agreement employed 48.58% of the total
number
of employees covered by the collective agreement. Paragraph 5 records
that the total number of employees employed within
the scope of the
collective agreement by employers who belonged to the employers’
organisation who are party to the collective
agreement is ‘27
371’ and that the total number of employees employed within the
scope of the collective agreement
is ‘56 341’.
[64] S 32 refers to ‘the majority of all the employees who fall
within the scope of the collective agreement’, as contrasted
to
the provisions of s 49(4) which refers to the representativeness of a
‘Bargaining Council’ and ‘employees
registered
within the scope of the council’.
[65] The representativeness of the second respondent is clearly
something very different to representativeness arising from a
collective agreement. The respondents however submit that there is no
significant difference between the number of employees falling
within
the registered scope of the council and the number of employees
falling within the scope of the collective agreement because
‘the
council’s scope of registration is substantively identical to
the definition contained in the collective agreement’.
[66] Being ‘substantively identical’ is of course not the
same as being identical or the same. However, even assuming
some
substantive measure of similarity or identity, the figures as per the
certificate differed crucially as to whether the representation
was
more or less than 50%, from the figures provided by the second
respondent itself in its application to the first respondent.
At the
very least, the first respondent should have applied her mind to the
application and the basis upon which it was brought.
If
ex facie
that application itself the required degree of representivity
required by s 32(3)(c) would not be satisfied, as indeed the
application
indicated, then she could not simply ignore those figures
and accept those in the s 49(4) certificate, in the absence of a
cogent
explanation justifying her disregarding the figures furnished
by the second respondent in the application. Although s 49(4)
contains
a deeming provision it does not assist the respondents’
case as it has a different purpose, but in any event also was in
respect of some form of assessment done on 30 April 2010 whereas the
actual figures in the application were in respect of a later
date
closer to the application being made.
[67] Reliance on the s 49 certificate was misplaced and did not
amount to a proper application of the first respondent’s
mind
to the requirements in s 32(3)(c) for at least one or more or all of
the following reasons:
(a) S 32(3)(c) refers to an actual factual position, not a deemed
one. The first respondent had to be satisfied that the majority
of
all employees falling within the scope of the collective agreement
once extended were in the employ of members of the employer
parties
to the Bargaining Council;
(b) S32 does not provide that any determination as to the
representativeness of a Bargaining Council in terms of s 49 is
sufficient
for the purposes of the inquiry to be undertaken in terms
of s 32(3)(c). Indeed, the provisions of s 49(2) requiring
particulars
to be furnished annually by the Registrar in writing as
to the number of employees covered by a collective agreement and the
like,
indicates that reliance on the certificate was not proper.
There will be no need for these particulars to be furnished if
reliance
would simply be placed on thecertificate of
representativeness of the council;
(c) S32 does not indicate, whether expressly or by implication, that
all the first respondent needed to do to satisfy herself that
the
requirements of s 32(3) (c) had been met, was to consider a
determination made under s 49;
(d) If the first respondent could satisfy herself as to level of
representativeness required by s 32(3)(c) by considering a
certificate
of representativeness in terms of s 49, it would
constitute an impermissible fettering of her discretion in relation
to the very
inquiry she is required to undertake and to be satisfied
on;
(e) S 49, relating to the ‘representativeness of council’
is to determine the representativeness of a bargaining council
and is
made in respect ofcriteria very different to those under s 32(3)(b)
and (c).
(f) The certificate referred to the number of employees ‘within
the registered scope of the council’, information required
by s
49(3)(a), and does not indicate the number of employees ‘covered
by the Collective Agreement’, the information
required by s
49(2)(a) and pertinent to the enquiry in terms of s 32(3)(c).
[68] As in the
Neasa
judgment the unavoidable conclusion is
that the factual assumption on which the first respondent based her
decision to extend the
collective agreement, namely the adequacy of
the certificate of representivity in terms of s 49, was incorrect. As
it was put in
that judgment ‘put another way, there were no
reasonable grounds for the Minister to be satisfied that the
conditions set
out in paragraphs (b) and (c) of s 32(3) had been met.
The Minister’s decision to extend the Collective Agreement to
non-parties
put forward in the registered scope of the agreement is
invalid and accordingly stands to be reviewed and set aside.
REMEDY
51
:
[69] In the
Neasa
judgment the decision reviewing and setting
aside the decision of the first respondent was suspended for a period
of four months.
[70] The second respondent does not contend for a suspension in those
terms but submits that any order of invalidity should not
have
retrospective effect, save that the second respondent should not be
permitted to commence compliance proceedings against non-parties
in
respect of non-compliance with the terms of the collective agreement.
This order is sought on the basis that s 8 of PAJA accords
a court a
broad discretion to make an order that is just and equitable.
[71] The first respondent in principle makes common cause with the
second respondent’s contention that an order of invalidity
should not operate retrospectively, but proposes a differently worded
order. When regard is had to the wording proposed by the
first
respondent, it appears that the first respondent does not actually
propose a limitation on retrospectivity, but a suspension
of any
order of invalidity for a period of four months, as was done in the
Neasa
matter.
[72] The present application concerns an invalid administrative act,
not an instance of constitutional invalidity to which the
provisions
of s 172(1)(b)(i) of the Constitution, providing that an order may be
made limiting the retrospective effect of the
declaration of
invalidity, would apply.
52
Even in instances where s 172(1)(b)(i) of the Constitution might find
application, it is only applied when there are compelling
reasons for
withholding the requested remedy.
[73] I shall accept in this judgment in favour of the respondents
that the discretion to grant an order that is just and equitable
would include limiting the retrospective operation of such an order.
It is clear that it is only in exceptional instances that
a court
will exercise its discretion to withhold an order setting aside an
invalid administrative act.
53
[74] In
Bengwenyama Minerals (Pty) Ltd v Genorah Resources (Pty)
Ltd and others
,
54
Froneman J held that:
‘
The
apparent anomaly that an unlawful act can produce legally effective
consequences is not one that permits easy and consistently
logical
solutions. But then the law is often a pragmatic blend of logic and
experience … The rule of law must never be relinquished
but
the circumstances of each case must be examined in order to determine
whether factual certainty requires some amelioration
of legality and,
if so, to what extent. The approach taken will depend on the kind of
challenge presented – direct or collateral;
the interests
involved, and the extent or materiality of the breach of the
constitutional right to just administrative action in
each particular
case’.
[75] The effect of an order setting aside the decision of the first
respondent will normally in the ordinary course, by its very
nature,
operate retrospectively.
55
[76] The enquiry is simply whether the present is such an exceptional
case, and if so, what form any limitation should take.
[77] The second respondent contends that an unqualified order of
invalidity would not be just and equitable in the circumstances
as it
would have the effect of upsetting thousands of settled transactions
and payments already made pursuant to the agreement,
to the prejudice
of not only second respondent but also third parties. Particular
reference is made to wages that have been paid
to employees, with the
fear being expressed that these might be recoverable on the grounds
that the
causu
giving rise to such payments was invalid, and
further that contributions to the clothing industry Health Care Fund,
which provides
medical and related benefits to employees and their
dependents, would be affected. Other payments which might be affected
are contributions
to the Industry Protection Fund, contributions to
bargaining council expenses, trade union subscriptions including the
HIV/Ace
project, Trade Union Capacity Building Fund and the
collective bargaining – dispute resolution levy. It is
submitted that
exactly these kinds of considerations caused the court
in the
Neasa
matter to suspend the order of invalidity for a
period of four months to allow the first respondent to consider
whether to extend
the collective agreement in terms of s 32(5).
[78] The first respondent likewise appeals for what she submits would
be ‘a dynamic and nuanced approach to judicial oversight
over
the exercise of public power’, by providing for a suspension of
the order of invalidity, and thus allowing an opportunity
for the
first respondent to consider whether to rely on s 32(5) instead.
[79] The rule of law must never be relinquished. The circumstance of
each case must be examined in order to determine whether some
amelioration of legality is required, and if so, the extent thereof.
Ultimately, the court must exercise a judicial discretion,
but as
with all judicial discretions it must not be exercised arbitrarily or
capriciously or for insufficient reason.
[80] The applicants justifiably in my view take issue with the
respondents’ conclusion that ‘there will be wide spread
prejudice not only to the council and its constituents but to related
third parties’. The foundational difficulty with this
submission is that these issues were not raised and fully addressed
in the affidavits. One simply does not know how many non-parties
might have made payments pursuant to the extension of the collective
agreement and how many not. Employer and employees who are
members of
the Employers’ Organisations and Trade Unions that are parties
to the collective agreement presumably would have
made payments, but
the setting aside of the decision to extend the collective agreement
will not affect them.
[81] The applicants correctly point out that if the order setting
aside the extension by the first respondent was not to have
retrospective affect, the applicants and other non-parties would
still be bound by the provisions of the collective agreement although
the extension thereof to them was invalid in law. Even if the order
of invalidity was not to have retrospective effect save to
the extent
that the second respondent should not be entitled to commence
compliance proceedings against non-parties in respect
of
non-compliance with the agreement, it would still permit the second
respondent to continue with compliance proceedings which
it might
have already instituted against non-parties.
56
[82] In the light of the aforesaid, I am not persuaded that the
limited retrospectivity which the second respondent proposes, or
a
suspension of the order as contended for by the first respondent is
‘just and equitable’ on the facts before me.
As much as I
appreciate that the review and setting aside of the first
respondent’s decision will have some impact, I do
not have
actual evidence of what this impact would be. Even if a suspension of
the order of invalidity might be justified in principle,
the question
arises whether such suspension should be for two or three or four or
perhaps more months. The fixing of such a time
limit would be
entirely arbitrary.
[83] One would obviously be reluctant to expose vulnerable employees
to possible claims for the reimbursement of higher remuneration
packages that might have become payable to them in terms of the
extended collective agreement. Whether that will in fact happen,
remains to a large extent speculative with no evidence of the
potential of such fears having been placed before me.
[84] It might be irresponsible for employers who have paid employees
higher wages in terms of the extended agreement to now seek
to
recover the extent of such overpayment. That could obviously bring
disruption to the industry, but particularly to individual
work
places, which employers presumably would want to avoid. I however
have no evidence on the application before me that any non-parties
to
the extended collective agreement contemplate such action.
[85] An invalid administrative act remains invalid. It is of no force
and effect. It would also not be just and equitable if administrative
functionaries were, in all instances where a challenge to the
validity of their administrative action is raised, to have the
assurance,
even in the absence of an evidential basis supporting any
potential prejudice, that if they are unsuccessful in opposing the
challenge
to the validity of their actions and it is found that the
administrative act is indeed invalid, that this would make no
difference,
because that which was achieved pursuant to invalid
action will stand with an opportunity being granted to correct it by
other
means.
[86] The present matter is not an instance where invalid
administrative action understandably occurred.
[87] Having regard to what has been placed before me, it is not just
and equitable that the applicants and other non-parties be
burdened
with obligations extended to them invalidly whilst an arbitrary
period of four months or two months, or whatever, is allowed
to
enable the first respondent to consider whether the same result could
be achieved validly by other means. The first respondent
should not
have to operate within or under those constraints. She should
consider whether the collective agreement should be extended
at all,
objectively and dispassionately.
[88] If any limitation of the nature contended for by the first or
second respondents is to be placed on an order of invalidity
then it
should have been firmly founded on a factual and evidential basis.
COSTS:
[89] The applicants have been successful. There is no reason why they
should not be awarded the costs of the application including
the
costs of their experts and the costs relating to the joinder of the
Fourth to Ninth Respondents.
[90] In view of the conclusion I have reached it is not necessary to
consider the merits of the applications to strike out and
no order is
made in respect thereof. The costs relating thereto will follow the
result.
ORDER:
[91] (a) An order is granted in terms of paragraph 1 of the Notice of
Motion as amended.
(b) The first, second and third respondents are directed to pay the
costs of the application including the costs of the applicants’
experts and the costs relating to the joinder of the Fourth to Ninth
Respondents jointly and severally, one or more paying, the
others to
be absolved.
__________________________
DATE OF MATTER: 29 February 2013
DATE JUDGMENT DELIVERED: 13 March 2013
APPLICANTS’ COUNSEL: L A ROSE-INNES S C
P B J FARLAM
APPLICANTS’ ATTORNEYS: WEBBER WENTZEL ATTORNEYS
Tel: (021) 431-7264/7348
Ref.: Ms K Williams / Mr D Visagie / 2126075
C/O TOMLINSON MNGUNI JAMES ATTORNEYS
Tel.: 033 341 – 9120
Ref.: Ms J Wesbrook/C. Scott
FIRST RESPONDENT’S COUNSEL: V SONI S C
S NANKAN
INSTRUCTED BY:
C/O THE STATE ATTORNEY
Tel.: 031 365 2500/2531
Ref.: K Donnelly
SECOND RESPONDENT’S COUNT’S COUNSEL: A J FREUND S C
G LESLIE/MS H CRONJE
INSTRUCTED BY: HEROLD GIE ATTORNEYS
Ref.: K J Mackenzie
C/O VENN NEMETH & HART
Ref.: Liza Bagley
Tel.: 033 - 355 3100
THIRD RESPONDENT’S COUNSEL: J G VAN DER RIET SC
MS K MILLARD
INSTRUCTED BY: CHEADLE THOMPSON & HAYSOM INC.
C/O VENN NEMETH AND HART
Ref.: Robert Stuart Hill
Tel.: 033 355-3110
1
All
references to section numbers hereafter are to the LRA, unless
expressly stated otherwise.
2
S
22.
3
S18.
4
S
9.
5
S
10.
6
S
33.
7
What
the nature of the Minister’s decision in terms of s 32(2) is,
particularly whether in extending a collective agreement
she is
confined to a consideration of the express requirements listed in s
32(3), on which, if she is so satisfied, leaves her
with no
discretion but to accede to a request to extend a collective
agreement, or whether she has a discretion, either in her
own right
or on an extended interpretation of the requirements in s 32(3) to
also have regard to the potential consequences of
extending a
collective agreement, before doing so, accordingly do not have to be
decided in this application.
8
Whether
properly construed the Minister’s decision amounts to
administrative action (in so far as the review might be based
or is
based on PAJA), and considering whether her decision was arrived at
in a procedurally fair manner, will also not arise,
if the failure
to have been satisfied of the requirements in terms of s32(3) are
reviewable on the principle of legality.
9
Many
of these aspects are not separate and distinct enquiries and there
will accordingly be some overlapping.
10
Subsequent
to the matter being argued an opportunity was granted to the parties
to file further submissions on the appropriate
relief to be granted.
Submissions were filed by the first and second respondents and
replied to by the applicants. Unfortunately
this resulted in a
slight delay in the handing down of this judgment.
11
Affordable
Medicines Trust and others v Minister of Health and others
[2005] ZACC 3
;
2006
(3) SA 247
(CC) paras 48 - 50, 74 - 78;
Democratic Alliance v
Ethekwini Municipality
2012 (2) SA 151
(SCA) paras 21 - 22;
Democratic Alliance and others v Acting National Director of
Public Prosecutions and others
2012 (3) SA 486
(SCA) paras 27 –
32;
Democratic Alliance v President of the Republic of South
Africa and others
2013 (1) SA 248
(CC) para 27, 34, 38 –
40 and 86-91;
CapeBar Council v Judicial Service Commission and
another
2012 (4) BCLR 406
(CC) paras 47 – 60 and
Judicial
Service Commission v Cape Bar Council
2012 (11) BCLR 1239
(SCA)
paras 21 - 22.
12
[2001] ZACC 6
;
2002
(2) SA 693
(CC) para 35.
13
2010
(2) SA 333
(SCA) para 37.
14
No
other ‘Act of Parliament’ was relied upon for the
submission that the High Court lacks jurisdiction.
15
As
indicated earlier, all references to section numbers are to sections
of the LRA, unless otherwise indicated expressly.
16
S
173 deals with
the jurisdiction of the Labour Appeal Court.
17
Incasu
no other law is relied upon.
18
2002
(1) SA 49
(SCA) para 25.
19
[2001] ZACC 6
;
2002
(2) SA 693
(CC) paras 38 – 40.
20
My
emphasis.
21
My
emphasis.
22
As
provided in s158.
23
Even
if I was wrong in that interpretation, the wording of ss 158(1)(e)
is still far removed from the provisions of ss 158 (1)(g).
24
As
contemplated in s 157(2) relating to the violation of a fundamental
right entrenched inchapter 2 of the Constitution. In
Gcaba v
Minister for Safely and Security and Others
2010 (1) SA 238
(CC), the Constitutional Court held that s 157(2) should not be
understood to extend the jurisdiction of the High Court to determine
issues which (as contemplated by s 157(1)) have been expressly
conferred upon the Labour Court by the LRA. Rather, it should
be
interpreted to mean that the Labour Court will be able to determine
Constitutional issues which arise before it, in the specific
jurisdictional areas which have been created for it by the LRA and
which are covered by s 157(2)(a)(b) and (c)’. Any reliance
on
the decision in Gcaba v Minister for Safety and Security and Others
or Chirwa v Transnet Limited and Others
[2007] ZACC 23
;
2008 (4) SA 367
(CC) as
decisive of the issue of jurisdiction, seems in my view misplaced in
the context of the present matter. Both involved
conduct held not to
constitute administrative action, dealt with entirely different
matters, namely non promotion and dismissal
in an employee
relationship, and were in respect of different labour issues to the
issue of legality before this court.
25
S158(1)(a).
26
S158(1)(a)(i).
27
S158(1)(a)(ii).
28
S158(1)(a)(iii).
29
S158(1)(a)(iv).
30
S158(1)(a)(v).
31
S158(1)(a)(vi).
32
S158(1)(a)(vii).
33
Whether
it is one of the specific stated forms of relief in s 158(1)(a)(i) –
(vii) or elsewhere in s158(1).
34
This
is exactly what happened in
National Employers Association of S A
and Others v Minister of Labour and Others
Case No. JR 3062/2011
(unreported), delivered 20 December 2012 Labour Court (Johannesburg)
– hereinafter referred to as
the ‘
Neasa
judgment’
– although the issue of jurisdiction did not arise in that
application.
35
S
191(6).
36
My
underlining.
37
Note
the reference to ‘may’ in s 63(1).
38
As
opposed to ‘are to be determined by the Labour Court’ in
s157(1).
39
S63(4)
refers to ‘adjudication’ rather than ‘determine’
or ‘determined’ in s 157(1).
40
(2010)
23 and 93.
41
5ed
(2007) 284.
42
S32(3)(d).
43
My
underlining.
44
As
required by s32(3)(e) and also (f).
45
It
is by no means clear that the possibility of potential job losses is
a relevant consideration necessarily implied in s 32,
within s
32(3)(e) – (g) as the Applicant’s contend, or elsewhere.
S 32(3)(e) and (f) in fact provide for an exemptions
body to
consider claims by non-parties if they are unable to comply with the
collective agreement extended to apply to them,
which would appear
superfluous if that was a matter which the Minister herself was
required to consider, albeit in general terms
as opposed to the
exemption process applicable on an individual basis.
46
My
emphasis.
Following the decision in
Minister of Health v
New Clicks SA (Pty) Ltd and Others
2006 (2) SA 311
(CC) at para
[199] to [201] it is permissible to have regard to the explanatory
memorandum which accompanied the LRA to ascertain
the ‘mischief’
that a statutory provision was aimed at where that would be relevant
to its interpretation. The explanatory
memorandum which accompanied
the LRA specifically identified the discretion afforded to the
Minister by the previous LRA as one
of the problems with a
pre-existing system which the new LRA sought to address. This
mischief was clearly addressed in the current
LRA by the removal of
any discretion on the part of the First Respondent.
47
Para
11.
48
2ed
(2011) 301 – 302. Also referred to with approval by Van
Niekerk J in the
Neasa
judgment para 19.
49
1967
(1) SA 31
(C) at 35A.
50
It
certified that 30 530 employees were employed by members of party
employers organisations and that there were 59 428 employees
employed within the councils registered scope.
51
After
the application had been argued and at the request of the second
respondent I allowed further submissions to be filed in
relation to
the issue as to what an appropriate remedy would be in the event of
the first respondent’s decision being reviewed
and set aside.
The second respondent, the first respondent and the applicants filed
further submissions. This part of the judgment
is in respect of
those further submissions.
52
Even
then, a successful litigant should be afforded ‘effective
relief’ –
Fose v Minister of Safety and Security
[1997] ZACC 6
;
1997 (3) SA 786
(CC) para 69;
Gory v Kolver NO and others (Starke
and others intervening)
2007 (4) SA 97
(CC) at para 40;
Mvumvu
and others v Minister for Transport and another
2011 (2) SA 473
(CC) at paras 46 and 48.
53
Oudekraal
Estates (Pty) Ltd v City of Cape Town and others
2004 (6) SA 222
(SCA) para 46.
54
2011
(4) SA 113
(CC) para 85.
55
See
Eskom Holdings Ltd and another v New Reclamation Group (Pty) Ltd
2009 (4) SA 628
(SCA) para 9;
Bengwenyama Minerals (Pty) Ltd and
others v Genorah Resources (Pty) Ltd and others
supra paras 84 to
87.
56
It
seems that only 269 of approximately 1000 businesses in the clothing
industry are compliant.