About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2024
>>
[2024] ZALCJHB 87
|
|
Justice for All Workers of South Africa v Registrar of Labour and Another (J930-23) [2024] ZALCJHB 87 (27 February 2024)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
no: J 930/23
In
the matter between:
JUSTICE
FOR ALL WORKERS OF
SOUTH
AFRICA
Applicant
and
REGISTRAR
OF LABOUR RELATIONS
First Respondent
THE
DEPARTMENT OF EMPLOYMENT
AND
LABOUR
Second Respondent
Heard:
20 February 2024
Delivered:
27 February 2024
This
judgment was handed down electronically by consent of the parties’
representatives by circulation to them by email. The
date for
hand-down is deemed to be 27 February 2024.
JUDGMENT
PRINSLOO,
J
Background
[1]
The
Applicant is an unregistered trade union, which was established in
August 2020. On 31 March 2023, the Applicant submitted an
application
in accordance with section 96(1) of the Labour Relations Act
[1]
(LRA) to be registered as a trade union. On 3 April 2023, the First
Respondent (Registrar) informed the Applicant that its application
did not meet the requirements for registration in terms of section
96(4) of the LRA, as the information provided was not sufficient
and
the Applicant was afforded an opportunity to prove that its
application complied with the LRA and that it is indeed a genuine
trade union. The Registrar listed the information to be submitted for
consideration and the Applicant was afforded 30 days to meet
the
requirements in terms of section 96(4).
[2]
On 25 May 2023, the Registrar issued a letter to the Applicant,
referring to the application for registration and the
information
received from the Applicant, which was considered. The letter stated
that the Applicant’s application failed
to comply with the
registration requirements of the LRA, that it was found not to be a
genuine trade union and that the application
for registration was
refused with effect from 25 May 2023.
[3]
The Applicant subsequently appealed to this Court in terms of the
provisions of section 111 of the LRA. The appeal was
enrolled for
hearing on 5 December 2023 and judgment was handed down on 24 January
2024. The Court (per Mongie AJ) ordered that:
‘
1. The
appeal is upheld;
2. The first
respondent’s decision to refuse to register the applicant is
set aside;
3. The first
respondent is ordered to register the appellant as a trade union in
terms of section 96(5) and 96(7) of the Labour
relations Act and to
issue a certificate of registration in the appellant’s name,
within 14 days of date of this order;
4. The first
respondent [is] ordered to pay the costs of this appeal in terms of
section 111(3).’
[4]
Pursuant to receipt of the judgment, the Respondents filed an
application for leave to appeal against the whole judgment
and orders
made on 24 January 2024.
[5]
The Applicant subsequently and on 13 February 2024 approached this
Court on an urgent basis for an order directing that
the operation
and execution of the orders granted in the judgment of 24 January
2024 not be suspended pending the application for
leave to appeal
filed by the Respondents and any subsequent appeal.
[6]
The Respondents opposed the application.
Section
18 of the Superior Courts Act: general principles
[7]
The
default position is that the operation and execution of a decision
(other than a decision not having the effect of a final judgment)
is
suspended pending the outcome of an application for leave to appeal
or an appeal.
Section
18 of the Superior Courts Act
[2]
regulates the circumstances under which a party may apply for an
order that departs from the ordinary consequence of filing an
application for leave to appeal.
The
court may order otherwise under exceptional circumstances if it is
established on a balance of probabilities that the applicant
will
suffer irreparable harm if the court does not so order, and that the
other party will not suffer irreparable harm if the court
so
orders.
[3]
[8]
Section 18 of the Superior Courts Act provides
that:
‘
18
Suspension of decision pending appeal
(1)
Subject to subsections (2) and (3), and
unless the court under exceptional circumstances orders otherwise,
the operation and execution
of a decision which is the subject of an
application for leave to appeal or of an appeal, is suspended pending
the decision of
the application or appeal.
(2)
Subject to subsection (3), unless the court
under exceptional circumstances orders otherwise, the operation and
execution of a decision
that is an interlocutory order not having the
effect of a final judgment, which is the subject of an application
for leave to appeal
or of an appeal, is not suspended pending the
decision of the application or appeal.
(3) A court may
only order otherwise as contemplated in subsection (1) or (2), if the
party who applied to the court to order
otherwise, in addition proves
on a balance of probabilities that he or she will suffer irreparable
harm if the court does not so
order and that the other party will not
suffer irreparable harm if the court so orders.
(4) If a court
orders otherwise, as contemplated in subsection (1) —
(i) the court must
immediately record its reasons for doing so;
(ii) the aggrieved
party has an automatic right of appeal to the next highest court;
(iii) the court
hearing such an appeal must deal with it as a matter of extreme
urgency; and
(iv) such order
will be automatically suspended, pending the outcome of such appeal.
(5) For the
purposes of subsections (1) and (2), a decision becomes the subject
of an application for leave to appeal or
of an appeal, as soon as an
application for leave to appeal or a notice of appeal is lodged with
the registrar in terms of the
rules.’
[9]
The Labour
Appeal Court (LAC) in
Road
Traffic Management Corporation v Tasima (Pty) Ltd and others
[4]
(
Tasima
)
considered the provisions of section 18(3) versus the common law
position as follows:
‘
[43]
Prior to the enactment of section 18(3) of the SC Act
there was no statutory provision regulating interim execution
orders.
In terms of the common law, the noting of an appeal automatically
suspends execution of the judgment appealed against.
Where the
successful party wishes to execute upon the judgment, it is required
to make an application for leave to do so and bears
the onus to show
why the judgment should be executed pending the appeal, subject, in
appropriate cases to the furnishing of security
de restituendo
.
The court had a wide discretion to grant or refuse leave to execute
and was required to determine what was just and equitable
in all the
circumstances having regard to the potentiality of irreparable harm
or prejudice to the parties, the balance of convenience
and the
prospects of success on appeal. At common law, an interim execution
order is itself an interlocutory order and was generally
not
appealable on the grounds that such an order may be varied by the
court granting it in the light of changed circumstances.
[44]
Section 18 of the SC Act has significantly altered
the common law in more than one respect. The court no
longer has a
wide discretion to do what is just and equitable or to rely
exclusively on the balance of convenience or the appeal’s
prospects of success. Now, before a court may order interim
execution, the applicant for that relief must prove three things on
a
balance of probabilities. Firstly, the applicant must show that
exceptional circumstances exist (perhaps including the balance
of
convenience and prospects of success) justifying the reversal of the
ordinary principle of suspension pending appeal. Secondly,
it must
prove on the probabilities that it will suffer irreparable harm if
interim execution is not ordered. Thirdly, it must prove
that the
other party will not suffer irreparable harm if an order of interim
execution is granted. Should the applicant fail to
discharge its onus
in relation to any one of these requirements, the court may not grant
an interim execution order. Additionally,
in terms of section 18(4)
of the SC Act, where an interim execution order is granted, the
aggrieved party has an automatic right
of appeal against that order
to the next highest court and the order will be automatically
suspended, pending the outcome of such
appeal.’
[10]
In
Incubeta
Holdings (Pty) Ltd and another v Ellis and another
[5]
(Incubeta),
the
Court held that:
‘
[16]
It seems to me that there is indeed a new dimension introduced to the
test by the provisions of Section 18. The test
is twofold; the
requirements are:
16.1
First,
whether or not ‘exceptional circumstances ‘exist, and
16.2
Second,
proof on a balance of probabilities by the applicant of –
16.2.1
The presence of irreparable harm to the applicant/victor, who wants
to put into operation and execute the order, and,
16.2.2
The absence of irreparable harm to the respondent/loser, who seeks
leave to appeal.’
[11]
In
University
of the Free State v Afriforum and another
[6]
(Afriforum),
the Supreme Court of Appeal (SCA) held:
‘
[9]
What is immediately discernible upon perusing sections 18(1) and (3),
is that the Legislature has proceeded from the well-established
premise of the common law that the granting of relief of this nature
constitutes an extraordinary deviation from the norm that,
pending an
appeal, a judgment and its attendant orders are suspended. Section
18(1) thus states that an order implementing a judgment
pending
appeal shall only be granted “under exceptional circumstances”.
The exceptionality of an order to this effect
is underscored by
section 18(4), which provides that a court granting the order must
immediately record its reasons; that the aggrieved
party has an
automatic right of appeal; that the appeal must be dealt with as a
matter of extreme urgency and that pending the
outcome of the appeal
the order is automatically suspended.
[10]
It is further apparent that the requirements introduced by
sections 18(1) and (3) are more onerous than those of the
common law.
Apart from the requirement of “exceptional circumstances”
in section 18(1), section 18(3) requires the
applicant “in
addition” to prove on a balance of probabilities that he or she
“will” suffer irreparable
harm if the order is not made,
and that the other party “will not” suffer irreparable
harm if the order is made. The
application of rule 49(11) required a
weighing-up of the potentiality of irreparable harm or prejudice
being sustained by the respective
parties and where there was a
potentiality of harm or prejudice to both of the parties, a
weighing-up of the balance of hardship
or convenience, as the case
may be, was required. Section 18(3), however, has introduced a higher
threshold, namely proof on a
balance of probabilities that the
applicant will suffer irreparable harm if the order is not granted
and conversely that the respondent
will not, if the order is
granted.’
[12]
The effect, in short, is this: t
he Superior
Courts Act limits the discretion of a court to grant the relief of
interim execution and section 18(3) introduced a
higher threshold and
more onerous requirements. An applicant must prove three distinct
requirements on balance of probabilities:
1. Exceptional
circumstances (including the balance of convenience and prospects of
success);
2. That it will
suffer irreparable harm if interim execution is not ordered;
3. That the other
party will not suffer irreparable harm if an order of interim
execution is granted.
[13]
Section 18(3) places a heavy onus on an applicant and if an applicant
fails to prove any one of the requirements, the
application must fail
and be dismissed.
[14]
It is in the context of the requirements of section 18(3) that this
application is to be decided.
Analysis:
The section 18(3) application
Exceptional
circumstances
[15]
The first issue to be decided is whether there
are exceptional circumstances.
[16]
The question as to what would constitute ‘exceptional
circumstances’ had been considered in
Incubeta
and the Court held that exceptionality
must be fact-specific and
circumstances
which are or may be ‘exceptional’ must be derived from
the actual predicaments in which the given litigants
find themselves.
The Court held that:
‘
In
my view the predicament of being left with no relief, regardless of
the outcome of an appeal, constitutes exceptional circumstances
which
warrant a consideration of putting the order into operation. The
forfeiture of substantive relief because of procedural delays,
even
if not protracted in bad faith by a litigant, ought to be sufficient
to cross the threshold of ‘exceptional circumstances’.’
[7]
[17]
Incubeta
has
been quoted with approval by the SCA
[8]
and it is clear that the determination of whether exceptional
circumstances exist is a fact-specific enquiry and each case has
to
be decided on its own facts as there is no definition of exceptional
circumstances.
[18]
In
Incubeta,
it
was held that:
‘
Significantly,
although it is accepted in that judgment that what is cognisable as
‘exceptional circumstances’ may be
indefinable and
difficult to articulate, the conclusion that such circumstances exist
in a given case, is not a product of a discretion,
but a finding of
fact.’
[9]
[19]
In
Afriforum,
with regard to proving exceptional
circumstances, it was held that:
‘
Whether
or not “exceptional circumstances” for the purposes of
section 18(1) are present, must necessarily depend on
the peculiar
facts of each case. In
Incubeta Holdings
at paragraph 22
Sutherland J put it as follows:
“
Necessarily,
in my view, exceptionality must be fact-specific. The circumstances
which are or may be ‘exceptional’ must
be derived from
the actual predicaments in which the given litigants find
themselves.”
I
agree. Furthermore, I think, in evaluating the circumstances relied
upon by an applicant, a court should bear in mind that what
is sought
is an extraordinary deviation from the norm, which, in turn, requires
the existence of truly exceptional circumstances
to justify the
deviation.’
[10]
[20]
The LAC confirmed in
Tasima
that the applicant must show that
exceptional circumstances exist, including the balance of convenience
and prospects of success,
justifying the reversal of the ordinary
principle of suspension pending appeal.
[21]
The question is thus whether the circumstances
in casu
are
truly exceptional and whether an extraordinary deviation from the
norm is justified. This question is to be answered by considering
the
facts and the circumstances relied upon by the Applicant.
[22]
The
prospects of success in the appeal is a relevant factor in the
consideration of the application, as was held in
Minister
of Social Development, Western Cape and others v Justice Alliance of
South Africa and another
[11]
where
the court said that:
‘
It
follows that the less sanguine a court seized of an application in
terms of section 18(3) is about the prospects of the judgment
at
first instance being upheld on appeal, the less inclined it will be
to grant the exceptional remedy of execution of that judgment
pending
the appeal. The same quite obviously applies in respect of a court
dealing with an appeal against an order granted in terms
of section
18(3). The position is very much akin to that which pertains when
interim interdictory relief pending a judicial review
is being
considered.’
[23]
In
Afriforum
, the SCA also confirmed that the prospect of
success in the appeal is a valid consideration when determining
whether exceptional
circumstances have been established by an
applicant seeking leave to execute pending appeal.
[24]
The Applicant submitted that the exceptional circumstances are
“
evident and proven on the account [of] what is set out
under irreparable harm”.
Exceptional circumstances and the
existence or absence of irreparable harm are distinct requirements
that must all be satisfied
in order for an applicant to succeed with
an application in terms of section 18(3). As alluded to
supra,
section 18(3) places a heavy onus on an applicant and an
applicant must prove the three distinct requirements on a balance of
probabilities.
[25]
It must be emphasized that an order in terms of section 18(1) and (3)
of the Superior Courts Act is a drastic and extraordinary
remedy
reserved only for exceptional circumstances.
[26]
The Applicant’s pleaded case, in respect of exceptional
circumstances, is that the Registrar blatantly refused
the Applicant
the opportunity, as afforded by section 96(4) of the LRA, to attend
to any shortcomings in the application for registration
and to mend
its application. Had the Registrar followed the mandatory prescripts
of section 96(4) of the LRA, there might not have
been an appeal in
terms of section 111 of the LRA. In the judgment of 24 January 2024,
the Court made a finding on the Registrar’s
failure to observe
the mandatory statutory responsibility.
[27]
The Respondents dispute that there are any truly exceptional
circumstances and that any deviation from the normal position
that
the judgment is suspended pending an application for leave to appeal,
will not be justified. The Respondents’ case is
that, as an
attempt to make out a case for exceptional circumstances, the
Applicant alleged that the Registrar blatantly refused
the Applicant
the opportunity as afforded by section 96(4) of the LRA to attend to
any shortcomings in the application for registration
and to mend its
application. This averment is factually incorrect.
[28]
It is evident from annexure ‘J1’ to the Applicant’s
founding affidavit and annexure ‘AA3’
to the Respondents’
answering affidavit that the Registrar indeed addressed a letter to
the Applicant, dated 3 April 2023,
indicating that the application
did not meet the requirements and that the information provided was
not sufficient. The letter
stated that the Applicant was afforded an
opportunity to prove that its application complies with the LRA and
that it is a genuine
trade union. The letter recorded the documents
submitted and listed the further information to be submitted, within
30 days, to
enable the Registrar to determine whether the Applicant’s
application complied with the LRA and that it is a genuine
organisation.
[29]
The Respondent denies that the Registrar did not afford the Applicant
an opportunity, as alleged and submitted that this
does not amount to
exceptional circumstances. The Respondents’ version is
supported by the letter of 3 April 2023, which
was attached to both
parties’ affidavits.
[30]
In its replying affidavit and in response to the Respondents’
version, the Applicant did no more than to refer
to paragraph 59 of
the judgment of Mongie AJ, where it was found that the Registrar made
a decision without affording the Applicant
the opportunity to remedy
any defects that might have existed. The Applicant did not in its
replying affidavit deal with the Respondents’
denial of the
existence of exceptional circumstances.
[31]
In casu,
no facts placed before this Court are sufficient to
constitute exceptional circumstances. I say so for the following
reasons:
[32]
The Applicant’s pleaded case in respect of exceptional
circumstances is that the Registrar blatantly refused the
Applicant
the opportunity, as afforded by section 96(4) of the LRA, to attend
to any shortcomings in the application for registration
and to mend
its application. The letter attached to the Applicant’s own
affidavit as annexure ‘J1’ contradicts
this version and
shows that the Applicant was afforded an opportunity to submit
further documents. The Respondents’ version
that there are no
exceptional circumstances is not meaningfully disputed and the only
version put forward is that the judgment
of 24 January 2024 found
that the Registrar made a decision without affording the Applicant
the opportunity to remedy any defects
that might have existed.
[33]
A perusal of paragraph 59 of the said judgment shows that the Court
indeed found that the Registrar requested further
information to
assess the application for registration. The Court’s finding
was on a different aspect and does not accord
with the Applicant’s
allegation before this Court, namely that the Registrar blatantly
refused the Applicant the opportunity,
as afforded by section 96(4)
of the LRA to attend to any shortcomings in the application for
registration and to mend its application.
[34]
Prospects of success are to be considered as a factor in deciding
whether or not to grant the exceptional remedy of execution
of a
judgment pending appeal. The Applicant has not made a single averment
to address the Respondent’s prospects of success
on appeal, nor
was the issue of the balance of convenience addressed at all.
[35]
The Applicant failed to show that there were any exceptional
circumstances that entitled it to the drastic and extraordinary
remedy in terms of section 18(1) and (3) of the Superior Courts Act,
which is to be reserved only for exceptional circumstances.
[36]
As already alluded to, section 18(3) places a heavy onus on an
applicant and if an applicant fails to prove any one of
the
requirements, the application must fail and be dismissed. The
Applicant is unable to satisfy the very first requirement to
show
exceptional circumstances and as such, the application has to fail
and it is not necessary to consider the other requirements.
[37]
In any event, the harm alleged by the Applicant, such as that it is
unable to conclude and enforce collective agreements
or enjoy the
rights envisaged by sections 12 – 16 of the LRA, is not
exceptional as those are the natural consequences of
operating as an
unregistered trade union.
Conclusion
[38]
The Applicant must prove the existence of exceptional circumstances
and that, on a balance of probabilities, it will
suffer irreparable
harm should the order for leave to execute or enforce not be granted
pending the appeal and that the Respondents,
who seek leave to
appeal, will not suffer irreparable harm if leave to execute is
granted pending appeal.
[39]
In
Afriforum,
the SCA confirmed that section 18(3) is a novel
provision and places a heavy onus on the applicant. Section 18 does
not merely purport
to codify the common-law practice, but introduces
more onerous requirements.
[40]
It has been accepted and confirmed by the courts that the prospects
of success of the proposed appeal remain a relevant
factor for
purposes of considering whether the court should grant an order
pursuant to section 18(3).
[41]
In
Knoop
NO and another v Gupta (Execution)
[12]
,
the SCA held that courts ought not to be too eager to enforce
judgments pending an appeal:
‘
The
immediate execution of a court order, when an appeal is pending and
the outcome of the case may change as a result of the appeal,
has the
potential to cause enormous harm to the party that is ultimately
successful.’
[42]
The
Applicant was unable to show ‘something that is sufficiently
out of the ordinary and of an unusual nature’
[13]
that would constitute exceptional circumstances and which would
warrant a departure from the ordinary rule.
[43]
The Applicant failed on the first substantive requirement for
departing from the default position that an appeal suspends
execution
of the order appealed against.
It
follows that all the requirements under sections 18(1) and (3) of the
Superior Courts Act have not been satisfied and that this
application
must fail.
Costs
[44]
The last issue to be decided is the issue of
costs.
[45]
Insofar as costs are concerned, this Court has a
broad discretion in terms of section 162 of LRA to make orders for
costs according
to the requirements of the law and fairness.
[46]
Mr Tooka for the Applicant argued that the
opposition of the application is frivolous and that the Applicant is
suffering harm,
an aspect that had not been addressed by the
Respondents. The Respondents should pay the cost of this application.
[47]
Mr Phambuka for the Respondents argued that the
Applicant was unable to make out a case for exceptional circumstances
and notwithstanding
the absence of exceptional circumstances, the
Registrar is dragged to Court to oppose this application. He argued
that the Registrar
is entitled to costs.
[48]
In
Zungu
v Premier of Kwa Zulu-Natal and Others
[14]
,
the
Constitutional Court confirmed the rule that costs follow the result
does not apply in labour matters. The Court should seek
to strike a
fair balance between unduly discouraging parties from approaching the
Labour Court to have their disputes dealt with
and, on the other
hand, allowing those parties to bring to this Court cases that should
not have been brought to Court in the first
place.
[49]
This is a
case where the Court has to strike a balance, considering the
requirements of law and fairness. The generally accepted
purpose of
awarding costs is to indemnify the successful litigant for the
expense he or she has been put through by having been
unjustly
compelled to initiate or defend litigation.
In
Public
Servants Association of SA on behalf of Khan v Tsabadi NO and
Others
[15]
,
it was emphasized that:
‘…
unless
there are sound reasons which dictate a different approach, it is
fair that the successful party should be awarded her costs.
The
successful party has been compelled to engage in litigation and
compelled to incur legal costs in doing so. An appropriate
award of
costs is one method of ensuring that much earnest thought and
consideration goes into decisions to litigate in this court,
whether
as applicant, in launching proceedings or as respondent opposing
proceedings.’
[50]
In my view, this is a case where it is appropriate
to make a cost order.
A cost order is a method of ensuring
that decisions to litigate in this Court are taken with due
consideration of the law and the
prospects of success, more so where
an application is filed on an urgent basis.
[51]v
The Applicant is legally represented and should be
aware of the heavy onus in an application such as this one. No case
has been
made out to show exceptional circumstances and issues to be
addressed, remained behind with no averments to support a case for
exceptional circumstances. The Respondent, and effectively the
taxpayers of this country, cannot be expected to pay the costs for
defending an application that failed to meet the basic requirements.
[52]
Accordingly
, I
make an order as follows:
Order
1.
The application is dismissed
with costs.
Connie Prinsloo
Judge of the Labour Court
of South Africa
Appearances:
For the
Applicant:
Mr L Tooka from Bareng Mokoena
Attorneys Inc
For the
Respondents: Advocate N Phambuka
Instructed
by:
The State Attorney, Pretoria
[1]
Act
66 of 1995, as amended.
[2]
Act
10 of 2013.
[3]
See:
Luxor
Paints (Pty) Ltd v Lloyd and another
[2016]
ZALCJHB 505; (2017) 38 ILJ 1149 (LC).
[4]
[2018] ZALAC 47
;
[2019] 5 BLLR 434
(LAC) at paras 43 - 44.
[5]
2014
(3) SA 189 (GJ)
at
para 16.
[6]
[2017] 1 All SA 79
(SCA) at paras 9 – 10.
[7]
Incubeta
supra
at
para 27.
[8]
Ntlemeza
v Helen Suzman Foundation and Another
2017
(5) SA 402
(SCA); 2
Afriforum
supra
.
[9]
Incubeta
supra
at
para 18.
[10]
Afriforum
supra
at
para 13.
[11]
[2016]
JOL 35612
(WCC) at para 27.
[12]
2021
(3) SA 135
(SCA) (
Knoop
)
at para 1.
[13]
Knoop
supra
at para 46.
[14]
[2018] ZACC 1
; (2018) 39 ILJ 523 (CC) at para 24.
[15]
[2017] ZALCJHB 17; (2012) 33 ILJ 2117 (LC) at para 176.