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[2024] ZALCJHB 122
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Registrar of Labour Relations v Young Nurses Indaba Trade Union and Others (J423/2023) [2024] ZALCJHB 122 (19 March 2024)
IN THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case no: J423/2023
In
the matter between:
THE
REGISTRAR OF LABOUR RELATIONS
Applicant
and
YOUNG
NURSES INDABA TRADE UNION
First Respondent
MFANELO
SICINA
Second
Respondent
MULATEDZI
RAMAANO
Third
Respondent
JOHN
DZAKANI
Fourth Respondent
LERATO
MTHUNZI
Fifth Respondent
NKOSINGIPHILE
MCHUNU
Sixth Respondent
NKOSI
PHUMZILE
Seventh Respondent
and
BAFANA
TSHABALALA
First Intervening Party
NKHUMELENI
MAKHADO
Second Intervening Party
MATEBELLO
PITSO
Third Intervening Party
LEHLOGONOLO
MOLOI
Fourth Intervening Party
SAMKELISO
ELVIRA PHIRI
Fifth Intervening Party
KARABO
SEEMA
Sixth Intervening Party
LWANDO
NICOUS MROBONGWANA
Seventh Intervening
Party
GAONYADIWE
MILDRED MATLHAKU
Eighth Intervening Party
LEOTJANA
TSHOANELO SKAKU
Ninth Intervening Party
AUBREY
PHATHUTSHEDZO LIDZEBE
Tenth Intervening Party
NKHUMELENI
RODNEY MAKHADO
Eleventh Intervening Party
MAKOENA
JOYCE RAKUMAKO
Twelfth
Intervening Party
MFANVELA
NKONYANE
Thirteenth Intervening Party
SIYABONGA
NKANYISO MBATHA
Fourteenth Intervening Party
NONTETHELO
MHLELEMBANA
Fifteenth Intervening
Party
MMELESI
TITUS MOEPENG
Sixteenth Intervening Party
TRYWELL
SMISO XULU
Seventeenth Intervening Party
Delivered:
This judgment was handed down electronically by circulation to
the parties' representatives
through email. The date for hand-down is
deemed to be 19 March 2024.
JUDGMENT
MAHOSI, J
[1]
The respondents brought an application for leave to appeal against
the judgment of
this Court handed down on 14 June 2023, in which the
first respondent was placed under administration.
[2]
The applicant opposed the application and filed submissions in terms
of Rule 30(3A)
of the Rules for the conduct of proceedings in the
Labour Court (the rules).
[3]
The grounds raised by the respondents were that the Court misdirected
itself in:
3.1
Finding that placing the first respondent under administration was
better than deregistering
it in circumstances where the question
before the Court was whether the Registrar was adequately exercising
his powers within the
prescripts of section 103A.
3.2
Accepting that the first respondent’s second National Congress
did not comply with
the LRA in that the attendance register did not
specify the place of work or work status of the attendees, while
section 100(d)
does not require the first respondent to submit the
work address or work status of people that attended the Congress.
3.3
Granting the applicant’s order placing the first respondent
under administration in
circumstances where the applicant had already
initiated deregistration proceedings in terms of section 106(2A),
which the first
respondent was attending to and the facts relied upon
to place the first respondent under administration did not permit
such an
order.
3.4
Finding that the deregistration proceedings under section 106(2A) and
administration proceedings
under section 103A were alternatives to
each other, it misdirected itself in failing to recognize that the
two processes are different
from each other and are not available to
the Registrar simultaneously.
3.5
Granting the administrator powers that are in no way connected to the
reasons why the first
respondent was placed under administration.
3.6
Failing to take into account that the threshold for the appointment
of an administrator
is strict because it implicates and limits
several constitutional rights of the first respondent and its
members, including section
23(4), which effectively protects the
first respondent against unlawful interference.
[4]
The traditional test for determining whether to grant an application
for leave to
appeal is whether there is a reasonable prospect that
another court will reach a different conclusion.
[1]
In terms of section 166(1) of the Labour Relations Act
[2]
(LRA), a party to proceedings before the Labour Court, may apply to
the Labour Court for leave to appeal to the Labour Appeal
Court (LAC)
against any final judgment or final order of the Labour Court.
[5]
Section 17 of the Superior Court Act,
[3]
which applies to the Labour Court and regulates instances in which
the appeal may be granted. Section 17(1) provides as follows:
‘
Leave
to appeal may only be given where the judge or judges are of the
opinion that–
(a)
(i) the appeal would have a reasonable prospect of
success; or
(ii)
there is some other compelling reason why the appeal should be heard,
including conflicting
judgments on the matter under consideration;
(b)
the decisions sought on appeal do not fall within the ambit of
section 16(2)(a) and
(c)
where the decision sought to be appealed does not dispose of all the
issues in the case,
the appeal would lead to a just and prompt
resolution of the real issue between the parties.’
[6]
Section 16(2)(a) of the Superior Court Act provides as follows:
‘
(i)
When at the hearing of the appeal the issues are of such a nature
that the decision sought
will have no practical effect, 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.’
[7]
In
Martin
and East (Pty) Ltd v National Union of Mineworkers and Others,
[4]
the LAC made it clear that leave to appeal is not simply there for
the taking and that this Court must be cautious in granting
leave to
appeal and in assessing the requirement of the prospect of success.
In this case, the Court stated as follows:
‘…
The
Labour
Relations Act was
designed
to ensure an expeditious resolution of industrial disputes. This
means that courts, particularly courts in the position
of the Court
a
quo,
need to be cautious when leave to appeal is granted, as should this
Court when petitions are granted.
There
are two sets of interests to consider. There are the interests of the
parties such as appellant, namely who are entitled to
have their
rights vindicated, if there is a reasonable prospect that another
court might come to a different conclusion. There
are also the rights
of employees who land up in a legal "no-man’s-land”
and have to wait years for an appeal (or
two) to be prosecuted.
This
was a case which should have ended in the labour court. This matter
should not have come to this Court. It stood to be resolved
on its
own facts. There is no novel point of law to be determined nor did
the Court
a quo
misinterpret existing law. There was no incorrect application of the
facts; in particular the assessment of the factual justification
for
the dismissals/alternative sanctions.
I
would urge labour courts in future to take great care in ensuring a
balance between expeditious resolution of a dispute and the
rights of
the party which has lost. If there is a reasonable prospect that the
factual matrix could receive a different treatment
or there is a
legitimate dispute on the law that is different. But this kind of
case should not reappear continuously in courts
on appeal after
appeal, subverting a key purpose of the Act, namely the expeditious
resolution of labour disputes.'
[5]
[8]
In this case, having had regard to the parties’ submissions, I
am not persuaded that
there are reasonable prospects of a successful
appeal. As such, this application is without merit and ought to be
dismissed.
[9]
Regarding costs, I believe that the requirements of law and fairness
dictate that
there should be no order as to costs.
[10]
Accordingly, the following order is made:
Order
1.
The application is dismissed.
2.
There is no order as to costs.
D. Mahosi
Judge of the Labour Court
of South Africa
[1]
See:
Karbochem
Sasolburg (A Division of Sentrachem Ltd) v Kriel and Others
(1999) 20 ILJ 2889 (LC) at 2890B;
Ngcobo
v Tente Casters (Pty) Ltd
(2002) 23 ILJ 1442 (LC) at 1443 para 2 and
Tsotetsi
v Stallion Security (Pty) Ltd
(2009) 30 ILJ 2802 (LC) at 2804 para 14.
[2]
Act
66 of 1995 as amended.
[3]
Act
10 of 2013.
[4]
(2014)
35 ILJ 2399 (LAC).
[5]
Ibid
at 2405-2406.