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2024
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[2024] ZALCJHB 50
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Innovative Staffing Solutions (Pty) Ltd v Minister of Employment and Labour and Others (JR1518/23) [2024] ZALCJHB 50 (12 February 2024)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: JR1518/23
In
the matter between:
INNOVATIVE
STAFFING SOLUTIONS (PTY) LTD
Applicant
And
MINISTER
OF EMPLOYMENT AND LABOUR
First Respondent
THE
NATIONAL BARGAINING COUNCIL FOR
THE
ROAD, FREIGHT AND LOGISTICS INDUSTRY
Second Respondent
THE
ROAD FREIGHT ASSOCIATION
Third Respondent
THE
NATIONAL EMPLOYERS’ ASSOCIATION
OF
SOUTH
AFRICA
Fourth Respondent
CONSOLIDATED
EMPLOYERS ORGANISATION
Fifth Respondent
SOUTH
AFRICAN TRANSPORT
AND
ALLIED WORKERS UNION
Sixth Respondent
MOTOR
TRANSPORT AND ALLIED WORKERS UNION
OF
SOUTH
AFRICA
Eighth Respondent
PROFESSIONAL
TRANSPORT AND ALLIED
WORKERS’
UNION
Tenth Respondent
TRANSPORT
AND ALLIED WORKERS UNION
Ninth Respondent
Heard:
12 January 2024
Delivered:
12 February 2024
Summary:
Practice and procedure – consolidation of applications
–
Labour Court proceedings – Rule 23 – Applicant bringing
three different review applications to review decisions
by the First
Respondent to extend the Second Respondent’s main collective
agreement. First and second review applications
already consolidated
– separate applications can be consolidated if just and
expedient to do so – applications arising
from similar facts,
involving similar parties – consolidation ordered.
JUDGMENT
SCHÄFER-KING,
AJ
[1]
The Applicant launched three review
applications on 3 different dates seeking to challenge, essentially,
whether it is bound by
the Second Respondent’s main collective
agreement (collective agreement). The first two applications under
case numbers J668/22
and JR2749/22 were consolidated on 30 August
2023 (first consolidation application). The application before this
Court is to consolidate
this review application which was brought on
14 August 2023, with the first consolidation application (second
consolidation application).
[2]
The second consolidation application was
opposed by the First Respondent.
Lis pendens
[3]
The First Respondent raised
lis
pendens
as a point
in
limine
. The First Respondent contended
that:
3.1 The first
consolidation application was set down on the unopposed motion roll
on 30 August 2023;
3.2 On 14 August
2023, the Applicant launched this third review application regarding
the First Respondent’s decision
in 2023 to extend the
collective agreement to non-parties.
3.3 On 18 August
2023, the Applicant brought an application to amend its notice of
motion in the first consolidation application,
with a view of
consolidating all three review applications into one consolidation
application.
3.4 On 21 August
2023, the First Respondent served a notice of intention to oppose.
3.5 On 22 August
2023, the First Respondent through the offices of the State Attorney
addressed a letter to the Applicant’s
attorneys informing them
that the First Respondent intended to oppose the Applicant’s
amendment on the grounds that the reviews
under case numbers JR
668/22 and JR 2749/22 are practically moot, whereas this review is
not moot.
3.6 On 28 August
2023, the Applicant’s attorneys responded proposing that a
draft order be agreed upon as follows:
3.6.1 Only the
review applications under case numbers J668/22 and JR2749/22 be
consolidated on 30 August 2023;
3.6.2
Parties file their opposing papers to the amendment under case
number JR1518/23 within the time frames set out in the
Rules
Regulating the Conduct of Proceedings in the Labour Court
[1]
;
3.6.3 The parties
request that the Court provide it with an expedited date insofar as
the consolidation under case number
JR1518/23 is concerned.
3.7 The First
Respondent agreed to the aforesaid draft order.
3.8 On 30 August
2023, Acting Justice Snyman ordered that:
‘
1.
The review application under case numbers J668/22 and JR 2749/22 are
consolidated.
2.
The Registrar is directed to provide an
expedited date of set down for the consolidation under case number
JR1518/23.
3.
There is no order as to costs.’
[4]
Counsel for the First Respondent argued
that the second consolidation application lies in duplicate with the
order of Acting Justice
Snyman wherein it was ordered that an
expedited date of set down for the consolidation under this case
number be provided by the
Registrar. It was argued that this
duplication of proceedings will prejudice the First Respondent and
unnecessarily burden this
Honourable Court.
[5]
It was uncontested that:
[5.1] On 31
August 2023, the Applicant’s attorneys attended at court to
request a preferential date in accordance
with the Court Order of 30
August 2023;
[5.2] The
Registrar advised the Applicant’s attorneys that the Applicant
needed to bring a formal consolidation
application in order to
consolidate this review under case number JR 1518/23 with the first
consolidation application, after which
the Registrar would allocate a
preferential date for the hearing of such consolidation application;
[5.3] On 10
October 2023, the Applicant duly filed the second consolidation
application, which was opposed by the First
Respondent.
[6]
I am of the view, as correctly pointed out
by Counsel for the Applicant, that the submission of
lis
pendens
is misconceived. The
lis
pendens
point stands to fail as there
is no pending litigation between the same parties based on the same
cause of action in respect of
the same subject matter, as the first
consolidation application has been heard and an order has been
granted. It follows that there
can be no amendment to the notice of
motion in the first consolidation application, as sought by the
Applicant prior to the hearing
of the first consolidation application
on 30 August 2023, as that application has been argued and an order
has been granted.
Just and expedient
[7]
Rule
23 of the Labour Court Rule
[2]
(Rules) provides that consolidation of matters may take place if it
is expedient and just to do so. In
Piner
v South African Breweries Ltd
[3]
,
it was held that terms such as “convenience”, “expedient”
and “just” imply that it must be
equitable to all
parties. The concept of equitability goes beyond merely determining
the issue on a balance of convenience. The
Court should accordingly
not only consider whether the balance of convenience favours such
consolidation, but it should be satisfied
that the consolidation will
not prejudice any other parties. Such prejudice must be substantial,
which is determined by considering
whether all the applications
sought to be consolidated arise from substantially the same questions
of law and fact or not.
[8]
The Applicant argued that:
[8.1] It
would be just and expedient to consolidate this review application
with the review applications already consolidated
in the first
consolidation application as the parties in the matters are
substantively identical, the relief is similar, the issues
that arise
are similar and the context within which the dispute is to be
determined are also similar;
[8.2] During
2022, the First Respondent decided to extend the collective agreement
to non-parties (2022 extension),
which decision was again taken in
2023 (2023 extension). The Applicant’s reviews challenge the
2022 extension decision as
well as the 2023 extension decision;
[8.3] The
flaws in the 2022 extension have been carried through to the 2023
extension and therefore the matters are
interrelated;
[8.4] The
applications require the determination of the same legal issue. By
way of example, the Applicant referred
to the issue of the
certificate of representativity and stated that in both the second
review application (case number JR2749/22),
and the third review
application (case number JR1518/23), the Applicant challenges the
certificate of representativity. It submitted
that the purpose of the
certificate is to assure the First Respondent that the Second
Respondent is sufficiently representative
within its sector before
the collective agreement is extended to non-parties;
[8.5] The
Applicant contended that in making both of these decisions, the 2022
extension and 2023 extension, the Minister
relied on the same
certificate;
[8.6]
The Applicant is challenging the validity of the certificate in the
JR2749/22 review as well as the review under this
case number. The Applicant requires the Court to determine the
validity of the
same certificate in both of these reviews, the former
(JR2749/22) forming part of the first consolidation application.
[9]
The First Respondent did not challenge the
Applicant’s submissions regarding,
inter
alia
, the matters being interrelated,
the parties being substantively identical, the relief similar and the
issues arising from substantively
the same set of facts.
[10]
It was argued on behalf of the First
Respondent that the consolidation would not be just and expedient in
the circumstances of this
case for the following reasons:
[10.1]
Consolidating all three reviews would deprive the First Respondent of
its right to raise the mootness defence in respect
of the reviews in
the first consolidation application (case numbers J668/22 and
JR2749/22), as these reviews would then be kept
alive under the
current review application;
[10.2]
Consolidating all three reviews will unnecessarily burden the First
Respondent by forcing him to continue financing
the exorbitant costs
of litigation in respect of two reviews over which the decision will
have no practical effect;
[10.3]
Consolidating all three reviews will place an unwarranted burden on
this Court by forcing it to plough through mountains
of paper in
respect of two review applications of which there is no longer a live
controversy between the parties.
Mootness
[11]
The First Respondent argued that:
[11.1]
The 2022 extension will lapse on 10 February 2024, which means that
the two review applications which form part of
the first
consolidation application will as a consequence become moot;
[11.2]
The certificate that has been challenged under the second review
application (JR2749/22) lapsed on 8 December 2023,
which has resulted
in that application also becoming moot;
[11.3]
Consolidating all three reviews would deprive the First Respondent of
its right to raise the mootness defence in respect
of the reviews in
the first consolidation application (case numbers J668/22 and
JR2749/22), as these reviews would then be kept
alive under the
current review application.
[12]
As correctly pointed out by the Applicant,
the application before the Court is that of consolidation. It is not
for this Court at
this juncture to delve into and consider the merits
of the review applications. As such it would be premature to make a
finding
on mootness. I do not agree with the First Respondent’s
argument that by consolidating this matter with the first
consolidation
application it would be deprived of its right to raise
the mootness defence in respect of the reviews under the first
consolidation
application. At the hearing of the consolidated review
applications, the First Respondent would not be precluded from
raising such
a point.
Conclusion
[13]
Counsel for the First Respondent conceded
that the two reviews which have been consolidated under the first
consolidation application
have to be argued. It therefore seems
futile to expect this Court to conduct two separate hearings to
determine the outcome of
the two review applications under the first
consolidation application and thereafter to determine the outcome of
this review application.
By not consolidating all three review
applications into one consolidated application, the parties will be
required to argue on
two different dates which would increase the
costs of litigation and burden this Court with two hearings instead
of one consolidated
application.
[14]
All three review applications involve
substantively identical parties, arising out of similar facts, are
interrelated and seek similar
relief.
[15]
I am of the view that the First Respondent
will suffer no prejudice if the second consolidation application is
granted, and all
three review applications are consolidated and heard
at the same time.
[16]
I therefore conclude that it would be in
the interests of expeditious dispute resolution that the application
for consolidation
should succeed.
Costs
[17]
In
terms of section 162 of the Labour Relations Act
[4]
(LRA), a court has the discretion to make an order for the payment of
costs, according to the requirements of the law and fairness.
Although this is a labour matter, the rule that ordinarily applies to
labour matters as expressed in the case of
Zungu
v Premier of the Province of KwaZulu-Natal and others
[5]
,
is not appropriate here. The rule that costs orders should not be
granted in labour matters is based on,
inter
alia
,
the ongoing relationship that exists between the parties. Here the
circumstances are different, there is no ongoing relationship
between
the Applicant and the First Respondent. Therefore, the usual rule
that costs follow the result should apply.
[6]
[18]
There was no reason for this consolidation
application to be opposed. The First Respondent will be entitled to
raise its defence
of mootness at the hearing of the consolidated
review application, this was not the forum to raise merit-based
defences.
[19]
In the premises, I make the following
order:
Order
1.
This review application under case number
JR1518/23 is consolidated with the already consolidated review
applications under the
consolidated case number JR2749/22.
2.
The Registrar is directed to provide an
expedited date of set down for the hearing of the consolidated review
applications.
3.
The First Respondent is ordered to pay the
costs of this application.
L Schäfer-King
Acting
Judge of the Labour Court of South Africa
Appearances
:
For the
Applicant:
Advocate De Vos
Instructed
by:
Hanelle Vry Incorporated Attorneys
For the First
Respondent: Advocate M. Nguta
Instructed
by:
Office of the State Attorney, Pretoria
[1]
GN
1665 of 14 October 1996: Rules for the conduct of proceedings in the
Labour Court.
[2]
GN
1665 of 14 October 1996: Rules for the conduct of proceedings in the
Labour Court.
[3]
[2002]
ZALC 36
;
(2002)
23 ILJ 1446 (LC).
[4]
Act
66 of 1995, as amended.
[5]
2018
(6) BCLR 686 (CC); [2018] ZACC 1.
[6]
Association
of Mineworkers and Construction Union and others v Ngululu Bulk
Carriers (Pty) Limited (In Lliquidation) and others
2020 (7) BCLR 779
(CC);
[2020] ZACC 8
at 33.