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[2020] ZALAC 65
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UASA - The Union and Others v Western Platinum (Pty) Ltd and Others (JA61/2019) [2020] ZALAC 65; (2021) 42 ILJ 371 (LAC) (13 November 2020)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
REPORTABLE
Case
no: JA 61/2019
In
the matter between:
UASA
-THE
UNION First
Appellant
SOLIDARITY Second
Appellant
NATIONAL
UNION OF MINEWORKERS Third
Appellant
and
WESTERN
PLATINUM (PTY)
LTD First
Respondent
EASTERN
PLATINUM (PTY) LTD Second
Respondent
ASSOCIATION
OF MINEWORKERS AND
CONSTRUCTION
UNION Third
Respondent
Heard:
20
August 2020
Delivered:
13
November 2020
Summary:
Practice
and procedure---Mootness---Whether exceptional circumstances exist to
conisider issue of costs despite mootness---Failure
to provide
reasons supports inference that Labour Court failed to take into
consideration all relevant facts and circumstances,
as well as the
requirements of law and fairness, when it ordered appellants to pay
costs---Labour Court’s misdrecition constituting
exceptional
circumstaces justifying interference on appeal.
Coram:
Davis
JA, Murphy AJA and Kathre-Setiloane AJA
JUDGMENT
KATHREE-SETILOANE
AJA
[1] The
appellants, UASA-The Union (“UASA”), Solidarity and
National Union of Mineworkers (“NUM”)
(collectively
referred to as “the appellants”) appeal against the
judgment and order (including the costs order) of
the Labour Court
(Mooki AJ) dismissing their application, in which they sought an
order obliging Western Platinum Ltd and Eastern
Platinum Ltd
(“Lonmin”) and the Association of Mineworkers and
Construction Union (“AMCU”) (collectively
referred to as
“the respondents”) to comply with a certified award
[1]
of the Commission for Conciliation, Mediation and Arbitration
(“CCMA”) granting the appellants organisational rights
referred to in sections 12, 13 and 15 of the Labour Relations Act 66
of 1995 (“LRA”).
Background
[2] A
Coalition was formed between NUM, UASA and Solidarity for purposes of
seeking organisational rights at Lonmin.
The Coalition made a request
to Lonmin, in terms of section 21 of the LRA, to be granted
organisational rights referred to in sections
12 , 13 and 15 of the
LRA.
[3] Lonmin
did not grant the Coalition the requested organisational rights.
Consequently, on 1 March 2018, the
Coalition referred an
organisational rights dispute to the CCMA for conciliation. The
conciliation was unsuccessful, and the Coalition
referred the dispute
to arbitration.
[4] The
arbitrator issued her award on 12 November 2018. She found that the
appellants represent a substantial
number of employees in the
workplace (at Lonmin) and granted them organisational rights referred
to in sections 12, 13 and 15 of
the LRA. As concerning deductions of
trade union subscriptions and levies, the award stipulated as
follows:
‘
2.2.1 The
General-Secretaries of the three Unions which constitute the
Coalition, or his delegate will ensure that duly
completed stop
orders are delivered in bulk to Lonmin or by email on or before 25
November 2018 for such stop orders to be deducted
by the HR of Lonmin
from the December 2018-payroll.
2.2.2 Lonmin
is entitled to verify the authenticity of such stop order forms by
contacting employees
directly by e-mail to confirm such… .’
[5]
On
23 November 2018, AMCU brought a review application against the
arbitration award.
[2]
The
arbitration award was not stayed pending the outcome of the review
application as contemplated in section 145(3)
[3]
of the LRA.
[6]
It
is common cause that Lonmin made no stop order deductions from the
appellants’ members in the January 2019 payroll run.
Consequently, on 30 January 2019, the appellants applied for the
certification of the arbitration award. It was certified in terms
of
section 143(3)
[4]
of the LRA on
4 February 2019.
[7] Consequent
upon a dispute arising in relation to,
inter alia
, whether the
appellants had submitted new membership forms to Lonmin in 2018 and,
the accuracy and quality of the membership forms
already submitted by
them, Lonmin did not comply with the arbitration award. As a result,
on 12 February 2019, the Coalition made
urgent application to the
Labour Court for enforcement of the arbitration award.
[8] The
Labour Court handed down judgment on 26 February 2019 in the
application to compel compliance with the
arbitration award. It held
as follows:
‘
The [appellants]
evidently have alternative remedies; including contempt proceedings
because the award that is the subject of this
application may be
enforced as if it were an order of this Court. This is more so given
the [appellants’] contention that
Lonmin has created a
‘fictitious dispute’ in insisting that the [appellants]
provide Lonmin with newly signed forms
for purposes of making
subscription deductions.
An order that the
respondents comply with a certified award has the same force as the
certified award itself; given the legal effect
of certified awards.
The [appellants] will have to institute contempt proceedings in the
event of non- compliance with such an
order. Contempt proceedings are
open to the [appellants] in relation to the award that is the subject
of this application. Contempt
proceedings is the appropriate recourse
where a party fails to comply with a certified award.
Mr Grundlingh, appearing
for the [appellants] submitted that a litigant has a choice not to
proceed by way of contempt proceedings
because section 143(4) states
that a party ‘may’ enforce a certified award by way of
contempt proceedings. The word
‘may’ cannot be construed
to connote an election on the process to be followed when there is
non-compliance with a
certified award. The expression quite clearly
states that an aggrieved litigant has recourse, if such a litigant is
so inclined,
to pursue contempt proceedings.
The [appellants]
ultimately conceded that they seek the particular relief because they
are unable to meet the high hurdle required
in contempt proceedings.
The application for the relief as formulated was thus a gamble on
their part.’
[9] The
Labour Court accordingly concluded that the appellants have not met
the requirement for the grant of an
interdict and dismissed the
application with costs. It did not provide reasons for making a costs
order against the appellants.
[10] The
appeal lies against these orders with leave of this Court.
The
Appeal
[11] During
the hearing of the appeal, the appellants rightly conceded that the
appeal is moot and will have no
practical legal effect because Lonmin
has been implementing stop order facilities since April 2019. They,
however, persist in their
appeal against the costs order, which they
contend remains a live issue.
[12]
The
question that arises is whether this Court should entertain an appeal
on costs only. Section 16(2)(a) of the Superior Courts
Act
[5]
is instructive on this question. It provides:
‘
(i)
When at the hearing of an appeal the issues are of such a nature that
the decision sought will have no practical
effect or result, the
appeal may be dismissed on this ground alone.
(ii)
Save under exceptional circumstances, the question whether the
decision would have no practical effect or
result is to be determined
without reference to any consideration of costs. ‘
[13]
In
the decision of
Khumalo
and Another v Twin City Developers (Pty) Ltd and Others
[6]
the Supreme Court of Appeal considered the meaning of the term
“exceptional circumstances” in section 16(2)
(a)
(ii)
of the Superior Courts Act. It endorsed the meaning given to the term
by the court in
MV
Ais Mamas Seatrans Maritime v Owner, MV Ais Mamas and Another
[7]
which is that ‘exceptional circumstances’ is a reference
to “something out of the ordinary and of an unusual
nature,
something which is excepted in the sense that the general rule does
not apply to it; something uncommon, rare or different”.
In
applying this test, a court is required to carefully examine the
facts and circumstances of the case.
[8]
[14]
Are
there exceptional circumstances in this appeal that merit deviation
from the rule as set out in section 16(2)
(a)(
ii)
of the Superior Courts Act? The appellants contend that the Labour
Court’s deviation from the established principle in
labour
matters that costs do not follow the result, constitutes an
exceptional circumstance which justifies the consideration of
the
issue of costs only in the appeal. I agree. This principle as
established by this Court
[9]
was
endorsed by the Constitutional Court in
Zungu
v Premier of the Province of KwaZulu-Natal and Others
[10]
where
it observed as follows:
‘
In this matter,
there was nothing on the record indicating why the Labour Court and
Labour Appeal Court awarded costs against the
applicant. Neither
court gave reasons for doing so. It seems that both courts simply
followed the rule that costs followed the
result. This is not
correct.
In the result, the Labour
Court and the Labour Appeal Court erred in not following and applying
the principle in labour matters
as set out in
Dorkin
.
The courts did not exercise their discretion judicially when mulcting
the applicant with costs. The court is therefore entitled
to
interfere with the costs award. Taking into account the
considerations of law and fairness, it will be in accordance with
justice
if the orders of costs by the Labour Court and the Labour
Appeal Court are set aside and each party pays his or her own costs.
‘
[11]
‘
[29] It
is clear that when making an adverse costs order in a labour matter,
a presiding officer is required to consider
the principle of fairness
and have due regard to the conduct of the parties. This, the Labour
Court failed to do. There is no reasoning
on the question of the
costs order beyond an indication that costs are to follow the result.
This is a misdirection of law and
it follows that the Labour Court’s
discretion in respect of costs was not judicially exercised and must
be set aside.’
[15]
Equally,
in this matter, the Labour Court made a costs order against the
appellants that deviated from the established principle
in labour law
that costs do not follow the result. It also made the costs order
without providing reasons. The Labour Court’s
explanation, as
set out in its reasons for refusing leave to appeal its judgment,
that it is a common attribute for a court to
grant costs without
providing reasons is unacceptable specifically in the Labour Court,
where costs orders are not only governed
by the law – but also
by the requirements of fairness.
[12]
In my view, the failure of the Labour Court to provide reasons
supports the inference that the Labour Court failed take into
consideration
all the relevant facts and circumstances, as well as
the requirements of law and fairness, when it ordered the appellants
to pay
the costs.
[16] Important
considerations which the Labour Court failed to have regard to are
that: (a) the evidence did not
suggest that appellants approached the
Labour Court on a mala fides or frivolous basis; (b) their matter
concerned the interpretation
of section 143(4) of the LRA on the
question of whether a litigant has a choice not to proceed by way of
contempt proceedings in
order to enforce a certified arbitration
award; and (c) the appellants and the respondents have an ongoing
collective bargaining
relationship that will likely survive the
resolution of the dispute. The Labour Court was merely guided by the
outcome of the application
and omitted to take these factors into
account. In doing so, it failed to properly exercise its judicial
discretion.
[17] These
misdirections, in my view, constitute exceptional circumstances
within the meaning of section 16(2)
(b)
(ii) of the Superior
Courts Act, which justify this Court’s interference on appeal.
[18] The
appeal must accordingly succeed.
Costs
in the Appeal
[19] In
view of the ongoing relationship between the appellants and the
respondents which is likely to survive
after this dispute is
resolved, I consider it to be just and fair not to award costs
against the respondents in this appeal.
Order
[20] In
the result, I make the following order:
1. The
appeal against costs is upheld with no order as to costs.
2. Paragraph
4 of the order of the Labour Court is set aside and substituted with
the following order:
“
4. There is no
order as to costs.”
F
Kathree-Setiloane AJA
DM
Davis JA and J Murphy AJA concur:
APPEARANCES
FOR
THE APPELLANTS: Mr
R Grundlingh
Instructed
by: Bester
& Rhoodie Attorneys
FOR
THE FIRST AND SECOND RESPONDENTS: Mr
L Hollander
Instructed
by: Larry
Dave Incorporated Attorneys
[1]
The CCMA issued the award on 12 November 2018.
[2]
The review application was dismissed by the Labour Court (“Gush
J”) on 3 April 2019 with no order as to costs. The
Labour
Court granted AMCU leave to appeal its decision on 31 May 2019. The
Labour Appeal Court upheld AMCU’s appeal in
a judgment
delivered on 13 November 2020.
[3]
Section 145(3) provides:
‘
The Labour Court
may stay the enforcement of the award pending its decision.’
[4]
Sections 143(3) and (4) of the LRA provide:
‘
(3) An
arbitration award may be only enforced in terms of subsection (1) if
the director has certified that the arbitration
award is an award
contemplated in subsection (1).
(4) If a
party fails to comply with an arbitration award certified in terms
of subsection (3) that orders the performance
of an act, other than
the payment of an amount of money, any other party to the award may,
without further order, enforce it
by way of contempt proceedings in
the Labour Court.’
[5]
No. 10 of 2013.
[6]
Khumalo
and Another v Twin City Developers (Pty) Ltd and Others
[2017]
ZASCA 143.
[7]
MV Ais
Mamas Seatrans Maritime v Owner, MV Ais Mamas and Another
2002
(6) SA 150
(C) at 156H-J (“
Seatrans
Maritime
”)
.
[8]
Seatrans
Maritime
at
157E-F.
[9]
Member
of the Executive Council for Finance Kwa-Zulu Natal v Wentworth
Dorkin N.O.
[2007]
ZALAC 41
at para 19 (“
Dorkin
”)
;
Martin
Vermaak v MEC for Local Government & Traditional Affairs, North
West Province
[2017]
ZALAC 2.
[10]
Zungu v
Premier of the Province of KwaZulu-Natal & others
39
ILJ 523 (CC) (“
Zungu
”);
Long v
SA Breweries (Pty) Ltd & others
2019
(40) ILJ 965 (CC) at paras 27 and 28.
[11]
Zungu
at
paras 25-26.
[12]
Section 162 of the LRC provides: