South African Municpal Workers Union(Northern Cape Province) v Sol Plaatje Municipality and others (1163/2006) [2007] ZANCHC 22 (9 March 2007)

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[2007] ZANCHC 22
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South African Municpal Workers Union(Northern Cape Province) v Sol Plaatje Municipality and others (1163/2006) [2007] ZANCHC 22 (9 March 2007)

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YES
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YES
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IN THE HIGH
COURT OF SOUTH AFRICA
(Northern Cape
Division)
Case
number:
1163/2006
Date
heard:
02/03/2007
Date
delivered:
09/03/2007
In
the matter between:
SOUTH
AFRICAN MUNICPAL
WORKERS
UNION
(NORTHERN
CAPE PROVINCE)
Applicant
and
SOL
PLAATJE MUNICIPALITY 1
ST
Respondent
THE
SOUTH AFRICAN LOCAL
GOVERNMENT
BARGAINING COUNCIL
(SALGBC) 2
nd
Respondent
MODUTLE,
J E & 7 OTHERS 3
rd
to 10
th
Respondents
Coram:
Lacock
J
REASONS
FOR JUDGMENT
LACOCK
J:
On
28 September 2006 this Court issued a rule nisi and interim
interdict reading as follows:
That a rule nisi is issued
calling upon the first Respondent to show cause, if any, on 20
OCTOBER 2006 AT 10H00 or as soon thereafter
as the matter may be
heard why;
the first
Respondent should not be ordered and prohibited from, pending the
finalisation of proceedings instituted by the Applicant
in terms of
Sections 51(8)
,
135
and
191
of the
Labour Relations Act, 1995
, to
the South African Local Government Bargaining Council, to appoint
any Applicant to the posts of;
Political Operations Officer;
Mayor’s Office
Executive Mayor Office Manager;
Mayor’s Office
Executive Administrative
Assistant; Mayor’s Office
Political Administrator;
Speaker’s Office
Executive Administrative
Assistant; Speaker’s Office
Political Liaison Officer;
Speaker’s Office
Senior Political Officer;
Speaker’s Office
Senior Political Liaison
Officer; Speaker’s Office
if any person has or have been
appointed to the abovementioned posts, such appointment or
appointments be stayed, pending the finalisation
of the proceedings
referred to in paragraph 1.1 above,
the first Respondent not be
ordered to pay the costs of this application.
That the orders referred to in
paragraphs 1.1 and 1.2 above shall serve as an interim order and
interdict with immediate effect.”
On 2 March 2007, which
date was the extended return date of the rule, I discharged the rule
with costs, and indicated that my reasons
would follow at a later
date. These are my reasons for the order made.
The
applicant, a registered trade union, approached this Court on an
urgent basis to prevent the first respondent from appointing
employees in the offices of the mayor and speaker of the first
respondent to the posts referred to in the rule nisi. The first
respondent, as well as the affected employees who had, unbeknown to
the applicant and the Court when the rule nisi was issued,
already
been appointed to the relevant posts and who were joined as the
third to tenth respondents to these proceedings, opposed
the
confirmation of the rule.
The
first issue for determination and which was raised as a point
in
limine
by the opposing respondents, is whether this Court has the necessary
jurisdiction to deal with this matter. The respondents submitted
that the jurisdiction of this Court to deal with a labour dispute
like this is ousted by the provisions of sec. 157 (1) of the
Labour
Relations Act, no. 66 of 1995 (the LRA).
To
fully appreciate this argument, it is necessary to analyse the nature
of the dispute in question.
It
is common cause that at all times relevant to this matter, the
applicant, the first respondent and the Independent Municipal
and
Allied Trade Union were parties to and were bound by the terms and
conditions of an Organisational Rights Collective Agreement
(the
collective agreement) as envisaged in (
inter
alia
)
Part B of the LRA. It is also common cause that in terms of sec. 12
of the collective agreement, a Local Labour Forum (LLF) had
been
established
“with
equal representation from the trade unions and the employer”
(the first respondent). See sec. 12.1 of the collective agreement.
The powers and
functions of the LLF are described as follows in sec. 12.2.1 of the
collective agreement:
The Local Labour Forum shall
have the powers and functions of negotiating and/or consulting:
on matters of mutual concern
pertaining to the employer and which does not form the subject
matter of negotiations at the SALGBC
or its Divisions;
on such matters as may from time
to time be referred to such forum by the SALGBC or its Divisions;
provided that it may not
negotiate on any matter, which has been reserved for exclusive
bargaining in the SALGBC or the divisions.”
(SALGBC is The South
African Local Government Bargaining Council, the second respondent.)
After
it became known to the applicant that the first respondent intended
to re-structure certain posts in its corporate services
sector, and
more particularly in the offices of the mayor and speaker, the LLF
engaged in a consultative process and reached agreement
on the
organogram prepared by the first respondent in respect of the
proposed reconstructed posts in the corporate services sector.
The
council of the first respondent thereafter approved the organogram
and reconstructed posts
“without
any grading attached to them”
.
Subsequent hereto the administrative corps of the first respondent
graded the posts in terms of its internal rules and regulations,
determined the salaries applicable to each post, and appointed
employees to these posts. All employees thus appointed were to
receive an increase in their salaries earned before the
restructuring of the relevant posts.
It is common cause
that the applicant was not consulted in regard to the grading of the
posts and the salary scales in respect thereof.
This alleged
omission on the part of the first respondent forms the nub of the
dispute between the parties. The applicant avers
that, in terms of
the collective agreement, the first respondent was bound to refer
not only the organogram, but also the grading
and salary scales
attached to the posts to the LLF for consultation. This is denied
by all the opposing respondents. The resolution
of this dispute is
therefore dependant upon the proper interpretation of the collective
agreement.
The
applicant has, on the same date on which the rule nisi was granted
by this Court, referred the aforesaid dispute to the second
respondent, a body established in terms of Part C of the LRA. The
nature of the dispute is described in the said written referral
as
“interpretation/application
of collective agreement”
.
Sec. 157 (1) and (2)
of the LRA reads as follows:
“
(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.”
What is also relevant
is sec. 158 (1) (a) of the LRA, reading:
“
(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;”
Mr
Coetzee for the applicant has, correctly so in my view, from the
outset, conceded that sec. 157 (2) of the LRA is not applicable
to
the circumstances of the present matter, and that this Court derives
no jurisdiction from the provisions of this section. The
correctness of this concession is to be found in the judgments in
Mgijima
v E C Appropriate Technology Unit & Another, 2000(2) SA 291
(TkHC); Fredericks & Others v MEC for Education
and Training,
EC,
[2001] ZACC 6
;
2002 (2) SA 693
(CC)
and
Bensingh
v Minister of Education and Culture: Province of KwaZulu-Natal &
Others
[2003] 1 All SA 157
(D)
.
No constitutional issue is relied upon in this case.
Mr Coetzee however,
submitted that the Labour Court has no jurisdiction to determine a
dispute in respect of the interpretation
of a collective agreement,
and therefore had no jurisdiction to grant the interim relief and
interdict granted by this Court.
He developed his argument along
the following lines: The LRA makes provision for three
jurisdictional or non-jurisdictional spheres:
Firstly the exclusive
jurisdictional sphere of the Labour Court as provided for in sec.
157 (1) of the LRA; secondly the concurrent
jurisdictional sphere of
the Labour Court and the High Court as provided for in sec. 157 (2)
of the LRA; and thirdly the ouster
of the jurisdictional sphere of
the Labour Court in terms of sec. 157 (5) of the LRA. This section
reads,
“
(5) Except
as provided in section 158 (2), the Labour Court does not have
jurisdiction to adjudicate an unresolved dispute if this
Act requires
the dispute to be resolved through arbitration.”
Sec.
24 (1) of the LRA provides the procedure whereby disputes in regard
to the interpretation of collective agreements are to be
resolved.
This section reads,
“
(1) Every
collective agreement excluding an agency shop agreement concluded in
terms of section 25 or a closed shop agreement concluded
in terms of
section 26 or a settlement agreement contemplated in either section
142A or 158 (1) (c), must provide for a procedure
to resolve any
dispute about the interpretation or application of the collective
agreement. The procedure must first require the
parties to attempt to
resolve the dispute through conciliation and, if the dispute remains
unresolved, to resolve it through arbitration.”
The
collective agreement in casu in fact makes provision for a procedure
to resolve a dispute in regard to the interpretation or application
of the agreement as required by this section. Since provision is
made in this section for the ultimate resolution of the dispute
by
arbitration, the Labour Court, by reason of the provision of sec. 157
(5), has no jurisdiction in this matter. Sec. 158 (2) is
not
applicable to the present circumstances.
Mr
Coetzee’s argument appears to me to be a double edged sword. His
submission that the Labour Court has no jurisdiction to
resolve a
dispute in respect of the interpretation or application of a
collective agreement, appears to be sound. Such disputes
are to be
resolved first by conciliation and if that fails, by arbitration.
See
SA
Motor Industry Employers’ Association & Another v NUMSA &
Others,
[1997] 9 BLLR 1157
(LAC) at 1160 F to J; Rustenburg Base
Metal Refiners (Pty) Ltd & Another v NUM & Others,
[2002]
11 BLLR 1097
(LC) at 1102 B to D; Ampofo v MEC Education, Arts,
Etc., Northern Province,
2002 (2) SA 215
at 230H
.
However, by the same
token is the jurisdiction of this Court ousted by the aforesaid
provisions of sec. 24 of the LRA to resolve any
dispute in regard to
the interpretation or application of collective agreements.
“
The
Commission for Conciliation Mediation and Arbitration (the CCMA)
deals with disputes referred to arbitration under its auspices.
The
Labour Court and the CCMA are therefore the separate fora created by
the LRA for the purpose of dealing with labour law disputes.
Where,
therefore, the LRA provides for dispute resolution by way of
arbitration, such as in terms of s 24 of the LRA, resort to
the
ordinary courts of law for dispute resolution is excluded. There is
thus no merit in the argument presented on behalf of the
applicants
that the jurisdiction of the High Court should not be ousted in
favour of a mere administrative tribunal. Such process
of arbitration
is sanctioned by s 34 the Constitution.”
(
Ampofo
v MEC Education, Arts, Etc., Northern Province
(supra)
at 230 J to 231 B
).
The
aforesaid argument based upon the provisions of sections 157 (5)
and 24 of the LRA is therefore of no assistance to the applicant
for its contention that this Court has jurisdiction to entertain
this application.
The
further flaw in Mr Coetzee’s argument is that this Court is not
requested to resolve the dispute which had been referred to
the
aforesaid Bargaining Council. The relief sought is an interim
interdict to maintain the
status
quo ante
pending
the resolution of the dispute by means of conciliation and
arbitration in terms of the LRA. Sec. 158 (1) of the LRA expressly
clothe the Labour Court with jurisdiction to make an order for
inter
alia
the grant of urgent interim relief or an interdict. Although an
applicant in a matter like the present has to some extent to rely
on
the interpretation of the collective agreement to establish a
prima
facie
right, the Court which has to adjudicate the interim relief is not
the forum for resolving the dispute in respect of the interpretation
or application of the collective agreement. That forum remains the
arbitrating body (which is the Commission for Conciliation,
Mediation and Arbitration – CCMA), and that function of the CCMA
is not usurped by the Court considering interim relief or an
interdict.
If
regard is had to the whole tenor of the LRA, i.e. the establishment
of ways and means to resolve labour disputes and related
matters,
the provisions of sec. 157 (1) read with sec. 151 (2) thereof, and
the provisions of sec. 145 read with sections 157 (1)
and 158 (1)
(g) of the LRA whereby exclusive jurisdiction is conferred on the
Labour Court to review decisions of the CCMA, (
Ampofo
(supra)
at
231 C to D
),
I am satisfied that the Labour Court is the only Court with
jurisdiction to grant the interim relief applied for by the
applicant.
That the Labour Court has such jurisdiction had been
decided by the Labour Appeal Court in
SA
Motor Industry Employers’ Association & Another v NUMSA &
Others
(supra) where the following was held:
“
Except as provided for by
section 158(2), the Labour Court cannot assume, nor can the parties
by agreement confer, jurisdiction on
the Labour Court to determine a
dispute which falls to be resolved by the Commission by conciliation
or arbitration.
Once
the bargaining council or one or more of the parties to the
bargaining council had decided to seek third party intervention in
the dispute about the interpretation of the main and administrative
agreements, the following procedure could have been followed:
the bargaining council or one or
more of the parties should have initiated the procedure provided for
in section 24 of the 1995
Act in order to obtain a ruling on the
correct interpretation of those agreements;
the
employers’ organisations could have sought an interim interdict
from the Labour Court pending the arbitration of the dispute
by the
Commission and the Labour Court would have had jurisdiction to make
a prima facie finding on the meaning of the agreements
as part of
the requirement of a prima facie right;
the application for an interim
interdict could have been decided on the basis of the applicable
principles.”
(emphasis supplied).
(
at
1160 J to 1161 C
).
I
therefore conclude that this Court had no jurisdiction to grant the
relief sought by the applicant, and the rule had to be discharged.
Even if I am wrong in
my aforesaid finding, I am of the view that the rule should in any
event have been discharged for the following
reasons:
In order to succeed
with its application for a temporary interdict, the applicant must
show,
“
(a) that
the right which is the subject-matter of the main action and which he
seeks to protect by means of interim relief is clear
or, if not
clear, is prima facie established, though open to some doubt;
(b) that, if the right is only
prima facie established, there is a wellgrounded apprehension of
irreparable harm to the applicant
if the interim relief is not
granted and he ultimately succeeds in establishing his right;
(c) that the
balance of convenience favours the granting of interim relief; and
(d) that the applicant has no
other satisfactory remedy.”
(
LF
Boshoff Investments v Cape Town Municipality,
1969 (2) SA 256
(C) at
267 B to D
).
The
right relied upon by the applicant is
“the
right to have the First Respondent bargain and negotiate in relation
to the salary grading and job evaluations in relation
to the
restructuring process which the first respondent had embarked on”
,
as articulated in counsel’s heads of argument. This right, so it
is submitted on behalf of the applicant, is entrenched in
art.
12.2.1 of the collective agreement, quoted hereinbefore (par. 4).
It is common cause that the matter had not been referred
to the
Local Labour Forum by the South African Local Government Bargaining
Council or that the matter had been reserved for exclusive
bargaining in the said Bargaining Council. Articles 12.2.1.2 and
12.2.1.3 of the collective agreement are therefore not applicable
to
the present issue. The only provisions applicable to this matter
are those contained in art. 12.2.1.1. This article is so
widely and
vaguely worded that one can almost label it void for vagueness. It
is however, clear that no provision is expressly
made for
negotiating or consulting on issues in respect of grading and/or
salary grading of posts by the first respondent.
The
first respondent strenuously denies that the grading and/or salary
grading of the posts as reconstructed falls within the ambit
of the
collective agreement as a matter for consultation or negotiation.
On the principles laid down in
Plascon-Evans
Paints v Van Riebeeck Paints,
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at 634 to 635
,
I have no reason not to accept the version of the first respondent.
The
right relied upon by the applicant is therefore not a clear one but,
at best for the applicant, one that is
prima
facie
established though open to some doubt. It is therefore necessary to
consider whether the applicant has established a wellgrounded
apprehension of irreparable harm if the application fails and it
ultimately succeeds in the bargaining council.
No attempt was made in
the applicant’s founding papers to establish any harm, let alone
irreparable harm. The only averment that
may remotely be described
as a reference to some form of harm reads,
“
Should the appointment letters
be signed and issued successful candidates will be notified and will
be in a position to commence employment.
This would negatively
impact on the dispute which is presently pending before the Second
Respondent.”
This
bald statement is not explained, and it is difficult to appreciate
the probable correctness thereof. The subject of the dispute
is the
interpretation of the collective agreement. How the appointment of
employees to the relevant posts could
“negatively
impact upon”
that issue, is incomprehensible.
If the rule is
discharged the third to tenth respondents will all remain in their
appointed posts as restructured and will all receive
their increased
salaries. I can think of no harm that can be suffered by the
applicant if this is to happen, and nothing had been
suggested by
counsel. The only persons that are likely to be detrimentally
affected if the applicant is to succeed in the main dispute,
are the
third to tenth respondents in that they may possibly have to refund
the increased portion of their salaries. This risk they
are prepared
to take.
I am therefore
satisfied that the applicant has failed to demonstrate an
apprehension of irreparable harm should the rule be discharged.
In
view of my aforesaid finding, I find it unnecessary to deal with the
questions of the balance of convenience and whether the
applicant
had no other satisfactory remedy.
By reason of the
aforesaid I discharged the rule with costs as per my order dated 2
March 2007.
_______________
HJ Lacock
JUDGE
For
the applicant:
Adv
W Coetzee & Adv J Henriques
(instructed
by, Engelsman, Magabane Attorneys, Kimberley)
For
the 1
st
respondent:
Mr
W Anderson
(instructed
by Mjila & Partners, Kimberley)
For
the 3
rd
to 10
th
respondents:
Mr
MD Legodi
(ins
tructed
by Madisha Dennis Legodi Attorneys, Kimberley)