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[1986] ZASCA 152
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Chamber of Mines of South Africa v National Union of Mineworkers (243/86) [1986] ZASCA 152; 1987 (1) SA 668 (A); (1987) 8 ILJ 68 (A) (28 November 1986)
Saaknommer 243/86
IN THE SUPREME COURT OF SOUTH
AFRICA
(
APPELLATE
DIVISION)
In the matter between:
THE CHAMBER OF MINES OF SOUTH AFRICA
Appellant
and
NATIONAL
UNION OF MINEWORKERS
1st Respondent
and
MINISTER OF
MANPOWER
2nd Respondent
CORAM:
RABIE, CJ, JANSEN, VILJOEN, HOEXTER, JJA
et
GALGUT,
AJA
HEARD:
4 November 1986
DELIVERED:
28 November 1986
JUDGMENT
HOEXTER,
JA ,
2.
. HOEXTER, JA
The appellant is the Chamber of Mines of South Africa ("the Chamber"), which
is an employers' organization within the meaning of sec
1 of the Labour
Relations Act, No 28 of 1956 ("the Act"). The first respondent is the National
Union of Mineworkers ("the Union"),
a trade union within the meaning of sec 1.of
the Act which was, on 23 April 1986, registered by the industrial council as a
union
under sec 3 of the Act. The second respondent is the Minister of Manpower
("the Minister"). The Chamber represents a large number
of mines in the
gold-mining and coal-mining industries. Among the Chamber's members are 20
gold-mines and 8 collieries which have
recognised the Union. The prohibition of
strikes or lock-outs in certain circumstances is governed by the provisions of
sec 65 of
the Act. The present appeal raises the question whether in April 1986
the Union was legally entitled to call a strike over the issue
to be described
hereunder.
In
3.
In order to appreciate the issues involved it is necessary to
give a short history of certain negotiations
between the Chamber and the
Union over a period of some four years. The salient facts are these. During each
of the years 1983, 1984
and 1985 the Chamber and the Union took part in annual
industry level negotiations affecting wages and other conditions of employment
of members of the Union. One of the matters raised in such negotiations was a
demand by the Union that in every year the first day
of May should be a paid
holiday for workers in the gold-mining and coal-mining industries. In what
follows reference will be made
to this demand as "the May-day issue".
During the 1985 round of negotiations a deadlock was reached and the Union
then applied in terms of sec 35 of the Act to the Minister
for the establisnment
of a conciliation board in both the gold-mining and coal-mining industries to
consider, and, if possible, to
settle certain disputes
existing
4. existing between the Union and the Chamber. A conciliation
board for each industry was established in June 1985. The disputes were
not
settled by such conciliation boards and the latter reported thereon in writing
to the Minister. Later in 1985 the mining companies
of two groups
(Anglo-American and Rand Mines Limited) represented in the Chamber reached
agreement with the Union in regard to the
matters in dispute between them; but
as between the Union and the mining companies of the General Mining Union
Corporation Limited,
Anglo-Vaal Limited, and the Goldfields of South Africa
Limited the disputes remained unresolved.
The Union's fourth National Congress was held during February 1986. It ended
on a somewhat militant note. From press reports of what
the Union's President
and General Secretary respectively were alleged to have said at the Congress the
Chamber considered that the
Union "displayed an intention to encourage its
members not to work on 1 May 1986".
On
5. On 26 February 1986 the Union sent a letter ("the ultimatum") to
the Chamber couched in the following terms:-
"Dear Sir,
DEMAND FOR A PAID HOLIDAY ON 1 MAY
As you are aware, one of our
union's demands at last year's industry's negotiations was that 1 May each year
should become a paid
holiday for mineworkers. This demand was not acceded
to.
The supreme policy-making body of the union, the National Congress, met
between 14 and 16 February 1986 and instructed the National
Executive Committee
to re-direct such a demand to Chamber.
We hereby re-iterate the demand and wish to inform you that should the demand
not be met by midday on Friday 28 February 1986, the
union will regard itself as
being in dispute with the Chamber on the issue."
On the very next day (27 February 1986) following the despatch of the
ultimatum to the Chamber the Union applied to the Minister in
terms of sec 35 of
the Act for the
establishment of a conciliation board:-
" for the consideration and determination of
a dispute which exists in the Mining Industry between the applicant and the
members of the Chamber of Mines."
The .....
6.
The form of an application for the establishment of
a
conciliation board is prescribed in regulation 6 of the
regulations made
by the State President in terms of sec 81
of the Act. Regulation 6 provides
that every such application
shall be accompanied by a concise statement ("the statement"),
duly
signed, giving:-
"(a) information in regard to the matter in dispute; and (b) particulars of
the steps taken to arrive at a settlement."
The statement which accompanied the Union's application for
a conciliation board was signed by its General Secretary and
its President. It reads as follows:-
"1. The National Union of Mineworkers hereby
applies for the appointment cf a conciliation board arising out of the
failure by the members of the Chamber of Mines to accede to
a demand over the
introduction of a paid holiday on 1 May each year.
2. At the industry negotiations held in the
second quarter of 1985 between the National Union of Mineworkers and members
of the Chamber, conducted in terms of a recognition agreement
entered into
between the parties on 9 June 1983 (as amended), the Union tabled a a demand
that mineworkers employed by the
Chamber's
7
Chamber's members, and in particular members of the Union, should enjoy a
paid holiday on 1 May each year. The demand was rejected.
3. At the annual National Congress of the Union
held between 14 and 16
February 1986, the
Union resolved to raise the demand afresh
with the
Chamber. Accordingly, the Union
directed such a demand to the Chamber under
a
letter dated 26 February 1986. In the letter,
a copy of which is annexed
hereto marked "A",
the Union called upon the Chamber to provide a
positive
response by midday 27 February 1986.
Such a response was not forthcoming. As
such
the Union is of the view that a dispute now
exists over an employment
benefit which the
union wishes to see introduced.
4. The National Executive Committee of the Union
has therefore resolved to
ask that a concilia=
tion board be established:
'To consider the dispute which has arisen between the National Union of
Mineworkers and its members on the one hand and the members
of the Chamber of
Mines on the other hand over the latter's refusal to accede to the demand that
mineworkers employed by the latter,
and in particular members of the said Union,
should enjoy a paid holiday on 1 May each year.'"
On 28 February 1986 the Chamber applied to the Minister in terms of sec 35 of
the Act for the establishment
of a conciliation board for the consideration and determination of a dispute
in the mining industry between the Chamber and
the
8.
the Union. To its statement accompanying the application the Chamber
appended a copy of the ultimatum. In paragraph 4 of its statement
the Chamber
stated:-
"The established practice of the mining industry has been that issues which
have cost implicátions (wage increases and other
changes in conditions of
employment) for mines, members of the Chamber, are implemented as a result of
negotiations with representative
employee organisations only once per annum,
namely at the time of the annual wage review, the effective date of which is the
May
pay month for members of the unions affiliated to the Council of Mining
Unions, the June pay month for officials and 1 July for employees
in job
categories 1 - 8."
In paragraph 7 of the statement the Chamber contended that the
terms of
the ultimatum were contrary to the established
industry practice detailed in paragraph 4; and in paragraph
8 of the statement the Chamber alleged that the demand contained
in the ultimatum represented an unfair labour practice
inasmuch as it constituted a change in an established labour
practice:-
"that . ..
9.
" that may have the effect that:
(a) the business of mines, members of the
Chamber may be unfairly affected
or disrupted.
thereby;
(b) that labour unrest may be created or promoted
thereby;
(c) the relationship between mines, members of
the Chamber, and both the
Union and employees
may be detrimentally affected."
In paragraph 15 of the statement the Chamber stated that it had received the
ultimatum late on the afternoon of 26 February 1986;
and it contended that the
Union "had displayed an unreasonable attitude in giving the Chamber one and a
half days to concede on a
demand that has considerable cost implications."
On 6 March 1986 the Chamber filed an application
with the industrial court in which it cited the Union as the respondent for
an order:-
"(a) in terms of section 43(4)(b)(iii) of the
Act to restore labour.practice prevailing prior to 26 February 1986, namely
that issues which have cost implications (wage increases
and other changes in
conditions of employment) for mines, members of the Chamber, are negotiated with
representative employee organisations
for implementation
at
10.
at the time of the annual wage review, namely, with effect from 1 July for
employees, members of the Respondent.
(b) directing that the order contained in (a)
is to operate retrospectively to 26 February 1986."
In response to the Union's application on 27 February 1986 for the
establishment of a conciliation board in regard to the May-day
issue, on 13
March 1986 and in terms of sec 35(3) of the Act,the Chamber made written
representations to the Minister opposing the
establishment of such a conci=
liation board. I quote therefrom:-
"The Chamber is opposed to the establishment of the conciliation board
applied for by the Union because it considers that the dispute
alleged by the
Union to have existed at the time of its . application is not a dispute within
the meaning of section 35 of the Labour
Relations Act for the following
reasons:"
The reasons relied upon were set forth in three paragraphs
respectively lettered (a), (b) and (c). Paragraph (a)
recapitulated the established practice in the mining industry
that issues having cost implications are negotiated for
implementation
11.
implementation at the time of the annual wage review; and alleged that by its
actions since 14 June 1983 the Union had indicated its
acceptance of this
practice. Paragraph (b) called attention to the terms of the ultimatum and then
went on to say:-
"The statement in paragraph 3 of the Union's statement attached to its
application that it called upon the Chamber to provide a positive
response by
midday on 27 February 1986 is therefore clearly incorrect.
The Chamber considers that having set the deadline of midday on 28 February
1986 the Union in effect undertook not to allege that
a dispute existed on the
issue in terms of section 35 until its demand was rejected by the Chamber or the
deadline had passed, whichever
occurred first. By making the application on 27
February 1986 the appli= cation was invalid in terms of section 35 because the
Union
by its own conduct (namely the deadline set by it) was prevented from
alleging that a dispute existed at that stage."
In paragraph (c) the Chamber stated that upon delivery to it
of the ultimatum it had less than 48 hours in which to consider
the Union's demand. It added:-
"The Chamber considers this to be an unreasonably short period of time in
which to consider and respond to a demand of this nature."
Early
12. Early in April 1986 the Chamber was informed by
letter that on 1 April 1986 the Minister had approved the establishment of a
conciliation board to consider and determine a dispute
between the Chamber and
the Union concerning an alleged unfair labour practice regarding:-
"(A) The Union's ultimatum contrary to the pattern of negotiations in the
Mining Industry, that the Chamber of Mines respond within
an unreasonably short
time to a demand that 1 May be introduced as a paid holiday for Mine Workers
and
(B) The parties' inability to come to an
agreement concerning the introduction of 1 May as a paid Public Holiday:
provided that for purposes of these terms of reference Part (B) of the
dispute shall not be deemed to involve an unfair labour practice.
" (My
underlining.)
Meanwhile, and on 1 April 1986, the Chamber had written a
letter to the Union stating that the latter's conduct suggested
that it intended to call or support a strike on 1 May in
regard to the May-day issue; and inquiring whether the Union
in fact, intended to call or support such a strike. The
second paragraph of the letter said:-
"Unless
13.
"Unless you advise the Chamber by not later than' Friday, 4
April 1986, th'at your Union will not call or support such a strike, the
Chamber
intends to take such legal steps as may be necessary to protect its members'
interests."
The Union's response to the above letter came on 4 April 1986 in the form of
a telex addressed to the Chamber's attorneys by the attorneys
of the Union. I
quote that portion of the telex relevant for present purposes:-
"AS YOU ARE AWARE, PURSUANT TO A RESOLUTION TAKEN AT ITS ANNUAL CONGRESS, OUR
CLIENT HAS DEMANDED THAT 1 MAY EACH YEAR BECOME A PAID
HOLIDAY. FURTHER TO THAT
DEMAND, OUR CLIENT LODGED AN APPLICATION FOR A CONCILIATION BOARD ON 27 FEBRUARY
1986. THE MINISTER OF MANPOWER
DID NOT APPOINT THAT BOARD WITHIN 30 DAYS OF THE
LODGING OF THE APPLICATION AND THEREFORE OUR CLIENT AND ITS MEMBERS ARE NOW
ENTITLED
TO PARTICIPATE IN LAWFUL STRIKE ACTION OVER THE ISSUE.
NOTWITHSTANDING THIS ENTITLEMENT, THE NATIONAL EXECUTIVE COMMITTEE OF OUR
CLIENT DOES NOT INTEND TO ADVOCATE ANY INDUSTRIAL ACTION
UNTIL IT HAS HAD AN
OPPORTUNITY OF DISCUSSING THE DEMAND WITH REPRESENTATIVES OF THE CHAMBER DURING
THE COURSE OF STATUTORY OR OTHER
PROCEEDINGS. WITH SPECIFIC REFERENCE TO THE
QUESTION POSED IN YOUR LETTER OF 1 APRIL 1986, WE ARE ACCORDINGLY INSTRUC= TED
TO INFORM
YOU THAT THE UNTON HAS NOT YET
TAKEN
14.
TAKEN A DECISION TO CALL OR SUPPORT A STRIKE BY ITS MEMBERS ON THE MATTER IN
QUESTION."
On 9 April 1986 the Department of Manpower addressed a letter to the Chamber
in connection with the Union's application on 27 February
1986 for the
establishment of a conciliation board in regard to the May-day issue. The letter
stated that the Union's said application
-
" was lodged before expiry of the Trade
Union's ultimatum and no dispute regarding the 1 May issue existed at that
time. Accordingly, the application is regarded as fatally
defective since the
Union had no grounds at the date of application for applying for a Conciliation
Board."
The Chamber's application of 6 March 1986 against the Union for an order in
terms of sec 43(4)(b)(iii) of the
Act was set down for hearing in the
industrial court on 11 April 1986. Following upon informal suggestions conveyed
to the parties
by members of the Court in chambers prior to the hearing, an
agreement in regard to the application was
reached
15. reached between the Chamber and the Union. When the matter
was called in Court on that date, and by consent, no order was made
on the
Chamber's application.
By notice of motion dated 17 April 1986, in which the Union was cited as the
first respondent and the Minister as the second respondent,
the Chamber applied
as a matter of urgency in the Witwatersrand Local Division on 18 April 1986 for
a rule
nisi
calling upon the respondents to show cause on 25 April 1986
why there should not be made final an order -
(1)
setting aside the
establishment of the conciliation board by the Minister on 1 April
1986;
(2)
declaring that the Union "has not to
date acquired the right lawfully to call or participate in a strike in regard to
the issue of
1 May as a paid holiday;"
(3)
interdicting the Union from instigating, calling for or organising
any such strike "until it acquires the right to do
so;"
(4)
ordering the Union to pay the costs
of the application, including the costs of two
counsel.
The Minister did not oppose the Chamber's
application. The
Union did not oppose the granting of the first order (the
setting
16.
setting aside of the establishment of a conciliation board by the Minister on
1 April 1986), but it resisted the rest of the relief
sought in the application.
Answering and replying affidavits were filed and in due course the matter was
argued before VERMOOTEN,
AJ, on 24 and 25 April 1986. On 28 April 1986 the
learned Judge made an order granting the Chamber's first prayer (the setting
aside
of the Minister's establishment of a conciliation board on 1 April 1986)
but dismissing the remainder of the application. The Chamber
was ordered to pay
the costs, including the costs in respect of the first order sought. A report of
the judgment of the Court
a quo
is to be found in (1986) 7 ILJ 304. With
leave of the Court below the Chamber appeals against the refusal of the Court
below to grant
a declaratory order in terms of the second prayer and the order
that the Chamber should bear the costs of the application. There
is no appeal
against the refusal by the Court below to grant the interdict sought
in
17. in the Chamber's third prayer. The appeal is resisted by the
Union,alone. There is no appearance by the Minister.
In granting prayer 1 the learned Judge concluded that the terms of reference
fixed by the Minister when on 1 April 1986 he approved
the establishment of a
conciliation board in response to the Chamber's application therefor on 28
February 1986 did not properly
reflect either of the disputes alleged by the
Chamber in its application; and, furthermore, that in paragraph (B) of such
terms of
reference the Minister had not been entitled to subjoin the proviso
underlined in the quotation of the terms of reference earlier
in this judgment.
However, since the first prayer had been opposed by neither the Union nor the
Minister the Court below considered
that the costs in regard thereto should also
be borne by the Chamber.
In the Court
a quo
the Union contended that it was lawfully entitled
to call a strike in regard to the May-day issue on 1 May 1986 by reason not only
of its application of
27 February
18. 27 February 1986 for the establishment of a
conciliation
board, but also on the strength of the establishment of the
conciliation
boards at its instance in June 1985. The
learned Judge concluded that both legs of the Union's
argument were sound.
In the judgment of the Court below
reference is made to the Union as "NUM".
Dealing with the
Union's contention based on the events of 1985 the learned
Judge said the following (at 307B/C):-
"NUM submits that the prerequisites of
s 65(l)(d)(ii)(aa) have been met in that:-
(a)
application has been made
under S. 35.for the establishment of a conciliation board for the consideration
of the said matter, that
is the dispute concerning the 1 May demand;
and
(b)
the conciliation board has reported
thereon to the minister in writing.
A strike on the
issue would accordingly be lawful. The fact that the strike would only have been
called after a considerable interval
does not affect the issue. Once the
prerequisites
of
19.
of s 65(l)(d)(ii) have been met it is lawful to strike on the issue in
dispute for as long as it remains in dispute. I agree with
Mr
Trengove
who appeared on behalf of NUM, that the right to strike lawfully, once
acquired, does not become stale."
Dealing next with the Union's application of 27 February 1986 the learned
Judge observed (at 307 I - 308A):-
"The validity of that application is in dispute.
It is common cause that for more than 30 days
thereafter the minister neither granted nor refused the application, and it
is further common cause that on 4 April 1986, the minister
refused the
application. In other words, provided the application was an application under s
35 for the establishment of a conciliation
board within the meaning of s
65(l)(d)(ii), it became lawful for NUM to call a strike in support of its.l
May
demand upon expiry of 30 days
after its application."
The Court below rejected the Chamber's contention that, having regard to the
terms of the ultimatum, the Union's application on 27
February had been
premature and defective, remarking in this connection (at 308 C/D):-
" a
20.
" a dispute clearly existed when NUN
launched its application even before the letter of 26 February 1986.
To limit the enquiry into the existence or otherwise of a dispute to the
events of 26 and 27 February 1986, is quite unrealistic.
The May Day dispute is
a long-standing one which has never been resolved. It existed long before the
letter of 26 February 1986 was
written and did not arise only when the ultimatum
set in that letter expired."
The learned Judge further expressed the opinion (at 308D/309C) that in any
event it made no matter whether or not on 27 February 1986
a dispute between the
Union and the Chamber in fact existed. In terms of sec 35(1) of the former
Industrial Conciliation Act, No
36 of 1935, an application to the Minister of
Labour and Social Welfare for the establishment of a conciliation board could be
made
whenever "a dispute exists". See:
Durban City Council v Minister of
Labour and Another
1953(3) SA 708 (N). Contrasting the words "a dispute
exists" in the former sec 35(1) with the words of the present sec 35(1)
-("Whenever
a dispute is alleged to exist"); and comparing
the
21.
the latter with the provisions of sec 35(4), in terms
whereof approval of the establishment of a conciliation board depends upon the
Minister being satisfied "that .... a dispute exists in regard to any matter
concerning the relationship between employer and employee",
the learned Judge
concluded (at 309C) -
" that contrary to the position under Act 36
of 1937, it is now sufficient if there is an allegation that a dispute exists
at the time when the application for a conciliation
board is lodged."
I proceed to consider the validity of the findings
made by the Court
a quo.
Having acquired the right to call for a
strike on the May-day issue in 1985 on the strength of what had happened in that
year, it
was for the Union to elect whether or not to use that right. The
learned Judge considered that the exercise of that election by the
Union could
be indefinitely deferred. It seems to me, with respect, that the soundness of
that approach may be open to
doubt
22.
doubt. That approach puts upon sec 65 of the Act a construc=
tion
which, when viewed from the angle of labour relations between employer and
employee, seems to entail curious and distinctly pernicious
consequences. I
wish, however, to say nothing more here in this regard. Assuming that in 1986
there remained available to the Union
a right of election flowing from the
events of 1985, on the facts of the present case it is clear, in my opinion,
that in Pebruary
1986 the Union irrevocably exercised such right of election by
deciding not to call a strike on the strength of the events of 1985;
and that
this decision was unequivocally communicated by the Union to the Chamber.
One or other of two parties between whom some legal relationship subsists is
sometimes faced with two alternative and entirely inconsistent
courses of action
or remedies. The principle that in this situation the law will not allow that
party to blow hot and cold is a fundamental
one of general application. A useful
illustration of the principle is offered in the relationship between master
and
servant
23
servant when there comes to the knowledge of the former some conduct on
the part of the latter justifying the servant's dismissal.
The position in which
the master then finds himself is thus described by BRISTOWE, J in
Angehrn and
Piel v Federal Storage Co
1908 TS 761
at 786 -
"It seems to me that as soon as an act or group of acts clearly justifying
dismissal comes to the knowledge of the employer it is
for him to elect whether
he will determine the contract or
retain the servant He must be allowed a
reasonable time within which to make his election. Still, make it he must,
and having once made it he must abide by it. In this, as
in all cases of
election, he cannot first take one road and then turn back and take another.
Quod semel placuit in electionibus amplius displicere non potest
(see
Coke,
Litt.
146, and Dig. 30,1,84,9; 18,3,4,2; 45,1,112). If an
unequivocal act has been performed, that is, an act which necessarily supposes
an election in a particular direction, that is conclusive proof of the election
having taken place."
The above statement of the principle may require amplification in the
following respect indicated by Spencer Bower,
Estoppel by Representation
(1923), para 244 at pp 224/5 -
"it
24.
"It is not quite correct to say nakedly
that a right of election, when once exercised, is exhausted and irrevocable,
or in Coke's
phraseology:
quod semel in electionibus placuit amplius displicere non
potest,
as if mere mutability were for its own sake alone banned and
penalized by the law as a public offence, irrespective of the question
whether
any individual has been injured by the volte-face.. It is not so. A man may
change his mind as often as he pleases, so long
as no injustice is thereby done
to another. If there is no person who raises any objection, having the right to
do so, the law raises
none."
Despite a contrary suggestion made by Mr
Trengove
, who appeared for
the Union, I see no reason for concluding that the principle of estoppel by
election or waiver, based as it is
on considerations of elementary fairness,
should be regarded as a trespasser in the legal field of labour relations.
Applying it
to the facts of the instant case I am satisfied that in addressing
the ultimatum to the Chamber on 26 February 1986 the Union performed
an
unequivocal act indicating that, in relation to the possibility of calling a
strike on the May-day issue, the Union had deliberately
elected not to rely upon
the events of 1985.
The
25. The proof of election so provided appears to me to be
cogent
enough. However, if any further evidence of such an election
be
required it is, I think, amply furnished by
(a) paragraph 3 of the statement which accompanied the Union's
application
for a conciliation board on 27 February 1986 and
(b) the telex sent on 4
April 1986 by the Union's attorneys to
the Chamber's attorneys.
That telex message states in the plainest terms upon what "entitlement" to
participation in a lawful strike the Union rested its case.
In the telex the
Union's claim to exemption from the prohibitions embodied in sec 65 of the Act
was based solely on the Union's application
for a conciliation board on 27
February 1986 and the developments subsequent thereto. Sec 65 defines the
circumstances in which strikes
are prohibited with reference,
inter alia,
to "the matter giving occasion for the strike" (
see
: sub-sections.
(l)(a); (l)(b); (l)(d)). In seeking to apply the provisions of sec 65(l)(d)(ii)
to a given factual situation it is
necessary to see how the "dispute" has been
defined in the anterior application under sec 35 for the establishment of a
conciliation
board. While the May-day
issue
26
issue was no doubt a long-standing one which existed before the ultimatum was
served upon the Chamber on 26 February 1986, the fact
of the matter is that when
on the following day the Union sought the establishment of a conciliation board
the dispute whose existence
the Union averred related solely to the Chamber's
alleged failure to meet the demand set forth in the ultimatum. The only further
question on this part of the case is whether as a result of the Union's election
not to rely upon the events of 1985 a retraction
thereof would involve injustice
to the Chamber. In my view it is clear that upon receiving notification of the
Union's election the
Chamber acted to its prejudice. The Chamber went to Court
in April 1986 to seek a declaration against the Union in the belief, induced
by
the Union's representation to it, that the Union's claim that it had acquired
the right lawfully to call for a strike would be
determined on the basis of and
by reference exclusively to the ultimatum and what followed thereon.
If
27. If the Union were allowed to retract its election the
Chamber would have been put to needless trouble and expense, thereby altering
its position for the worse. In my opinion, therefore the Union is precluded f
rom asserting its right to a course of action based
upon the events of 1985,
which course it has unequivocally elected to discard; and upon which election
the Chamber has acted to its
detriment.
It remains to consider the validity of the second leg of the argument
advanced on behalf of the Union. The Union claims that by April
1986 it had
acquired the right lawfully to call for a strike because (1) on 27 February 1986
it applied in terms of sec 35 for the
appointment of a conciliation board and
(2) the Minister did not within 30 days thereafter approve or refuse to approve
the establishment
for a conciliation board. The correctness of the Union's claim
depends upon whether or not the Union's application in terms of sec
35 was a
valid application. In my view the Hinister was right in adjudging that the
Union's application was:-
"...fatally
28.
"...fatally defective since the Union had no grounds at the
date of the application for
applying for a conciliation board."
The Minister rightly so concluded for the very reasons relied upon in para
(b) of the Chamber's written representation to the Minister
opposing the Union's
application, namely:-
"By making the application on 27 February 1986 the application was invalid in
terms of sec 35 because the Union by its own conduct
(namely the deadline set by
it) was prevented from alleging that a dispute existed at that stage."
That reasoning is unassailable. Having put the Chamber on terms the Union had
to abide by those terms. Instead it flouted them. But
then it is said the
Union's application under sec 35 contained an allegation that a dispute existed;
that the formal requirements
of the section were thereby satisfied; and that any
inquiry into the correctness of the allegation is unnecessary and irrelevant.
It
is, however, not possible, I consider, to turn a blind eye to what is contained
in the rest of the application. The Court is
here ......
29. here concerned with substance rather than form.
An
application under sec 35 is required to give, by way of an
appurtenant statement, information in regard to the matter in
dispute. If
it is manifest upon the face of such statement
that no dispute in fact exists
there is not in law a valid
application under sec 35. That is the position
here. The
accompanying statement is entirely destructive of the
allegation that on 27 February a dispute existed. That
fatal flaw cannot be cured by the formal but false averment
to the
contrary.
For the aforegoing reasons I come to the conclusion that the Court below
erred in declining to grant the declaration sought by the
Chamber in its second
prayer, and the appeal must succeed. In this Court the Chamber was represented
by three counsel but Mr
Welsh
, who argued the appeal for the Chamber,
properly conceded that the costs of two counsel only should be allowed. As to
the matter
of costs in the Court below, it is true that the Union did not oppose
the grant of the relief sought against the Minister
in
30. in the Chamber's first prayer. On the other hand, as
between
the real contestants, the Chamber and the Union, the substantial
issue related to the relief sought in the second prayer. Inasmuch
as the second
prayer should have been granted I consider that the Union should bear all the
costs of the application in the Court
below.
Accordingly the appeal succeeds with costs,
including the costs of two counsel. The following paragraphs
are substituted for paragraphs 2 and 3 of the order of the
Court below:-
"2. It is declared that the first respondent has not to date (28 April 1986)
acquired the right lawfully to call or participate in
a strike in regard to the
issue of 1 May as a paid holiday. 3. The Union must pay the costs, including the
costs of two counsel."
G G HOEXTER, JA
RABIE, CJ )
JANSEN, JA ) Concur VILJOEN, JA ) GALGUT, AJA )