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[2023] ZALCJHB 24
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Registrar of Labour Relations v Sono N.O and Others (J 2896/2018) [2023] ZALCJHB 24 (4 January 2023)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
No: J 2896/2018
In
the matter between:
REGISTRAR
OF LABOUR RELATIONS
Applicant
and
SIPHO
ERIC SONO N.O.
(Administrator
of the Chemical, Energy, Paper,
Printing,
Wood and Allied Workers’ Union)
First Respondent
CHEMICAL,
ENERGY, PAPER, PRINTING,
WOOD
AND ALLIED WORKERS’ UNION
(Under
administration)
Second Respondent
WELILE
NOLINGO
Third Respondent
THAMSANQA
VUMANI MHLONGO
Fourth Respondent
LUCA
MASHENGO & OTHERS
Fifth to Thirty Third Respondents
Heard:
29 December 2022
Delivered:
4 January 2023
JUDGMENT
WHITCHER
J
Introduction
[1]
On 7 December 2022, pursuant to an application brought by the
applicant (the Registrar
of Labour Relations) to extend the period of
appointment of the first respondent as the appointed administrator of
the second respondent
in terms of section 103A of the Labour
Relations Act (LRA)
[1]
and
various applications by the third to thirty-third respondents, Snyman
AJ delivered a judgment with the following order:
1.1
The administration order of 4 June 2020 in terms of which Chemical,
Energy,
Paper, Printing, Wood and Allied Workers’ Union
(CEPPWAWU) is placed under administration in terms of section 103A is
extended
to 12 December 2023.
1.2
Mr Sipho Eric Sono (Sono) is appointed as the administrator of
CEPPWAWU for
the period ending 12 December 2023.
1.3
The provisions of the entire paragraph 3, including all subparagraphs
thereof,
of the administration order granted on 4 June 2020, shall
equally and without exception apply to Sono in the course of his
tenure
as administrator in terms of this order.
1.4
Save for paragraph 6 of the administration order of 24 March 2022 in
terms of
which no order as to costs was made, the entire
administration order of 24 March 2022 is substituted with the
following order:
(a)
Sono shall appoint an experienced and reputable facilitator to ensure
that congresses be convened in terms of the constitution of CEPPWAWU
for the purposes of electing a new national leadership of CEPPWAWU.
(b)
The congresses contemplated by paragraph [a] of this order shall be
convened
and then concluded prior to 30 September 2023.
(c)
The control, management and affairs of CEPPWAWU shall be handed to
the
new leadership elected in terms of paragraph [a] of this order,
upon expiry of the period of administration under this order on
12
December 2023, unless extended further by this Court on application
by the Registrar.
(d)
Sono shall be required to consult with interested parties when
deciding
the proper and effective governance and administration
requirements to be put in place for CEPPWAWU.
[2]
Snyman AJ dismissed the application for an order reinstating the
individual respondents
that had been dismissed by the previous
administrator.
[3]
The learned Judge gave detailed reasons for his orders, which he also
summarised as
follows:
‘
[109] In
summary, it is simply not competent to afford the individual
applicants who were dismissed, the relief sought in
prayer 5 of part
B of the notice of motion, for two main reasons. First, this Court
has no jurisdiction to entertain an unlawful
dismissal claim, and
where it comes to an unfair dismissal claim the individual applicants
are compelled to follow the prescribed
dispute resolution processes
under the LRA in the absence of truly exceptional circumstances,
which does not exist in this case.
Where it comes to Zako and Mpofu
who have the judgment of 8 September 2021 in their favour, which
judgment stands and is operative,
the issue is one of enforcement
which is lis pendens before the Labour Appeal Court.
[110] Where
it comes to the relief sought under prayer 6 of part B of the notice
of motion, it is simply not competent
for the individual
applicants
[2]
to approach this
Court under section 103A of the LRA to remove Sono as administrator
and request this Court to appoint Soobedaar
in his stead. Only the
Registrar, in this case, had the competence to approach this Court to
seek this kind relief.
[111] Where
it comes to the application by the Registrar to extend the
appointment of Sono as administrator for a period
of 12 months as
from 12 December 2022, there is simply no feasible reason, even
exercising a discretion based on what would be
just and equitable,
for such an order not to be granted. I am therefore convinced that
Sono be appointed for a further 12 months’
period, as requested
by the Registrar.’
[4]
On 12 December 2022, a notice of leave to appeal against the judgment
was filed by
a party purporting to be CEPPWAWU and the third to
thirty third respondents.
[5]
The Registrar of Labour Relations, with a supporting affidavit from
the first respondent,
seeks leave to put into operation and execute
the order of Snyman AJ pending the appeal process. The application is
opposed by
the third to thirty-third respondents.
The
law
[6]
The parties agree that s 18(1) of the Superior Courts Act
[3]
sets the basis for when the power to depart from the default
position
[4]
comes into play,
namely, exceptional circumstances which must be read in conjunction
with the further requirements set by s 18(3)
that requires an
applicant for an execution order to prove on a balance of
probabilities that it will suffer irreparable harm if
the order is
not granted and that the other party will not suffer such harm.
[7]
Sutherland J in
Incubeta
Holdings (Pty) Ltd and Another v Ellis and Another
[5]
(Incubeta) held that the circumstances which are or may be
‘exceptional’ must be derived from the actual
predicaments
in which the given litigants find themselves.
Exceptionality is that which is out of the ordinary and of an unusual
nature.
[8]
On the matter that served before him, a restraint of trade with a
short duration,
he held:
‘
[25]
…
●
If
the order is not put into operation, the relief will, regardless of
the outcome of the application for leave to appeal, be forfeited
by
Incubeta because the short duration of the restraint will expire
before exhaustion of the appeal processes.
●
The
only value in the relief is to stop the breach and protect legitimate
interests during the precise period of the next four and
a half
months. Unrebutted evidence in the affidavit alleges a breach is
taking place at this very time.
●
Damages
are not an appropriate alternative remedy precisely because the very
relief obtained is posited on the absence of such a
remedy being
available…
...
[27]
…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’.
[28]
The plight of the victor alone is probably all that is required to
pass muster. Nonetheless,
I am not unconscious of the undesirable
outcome that relief granted by the court becomes a vacuous gesture. A
court order ought
not to be lightly allowed to evaporate, a fate
which, seems to me, would tend undermine the role of courts in the
ordering of social
relations.’
[9]
The Supreme Court of Appeal in
Knoop
NO and Another v Gupta (Execution)
[6]
held at paragraphs [46] and [47] that:
‘
[46]
Courts have always eschewed any attempt to lay down a general rule as
to what constitutes exceptional
circumstances. The reason is that the
enquiry is a factual one… In the context of s 18(3) the
exceptional circumstances
must be something that is sufficiently out
of the ordinary and of an unusual nature to warrant a departure from
the ordinary rule
that the effect of an application for leave to
appeal or an appeal is to suspend the operation of the judgment
appealed from. It
is a deviation from the norm. The exceptional
circumstances must arise from the facts and circumstances of the
particular case.
When dealing with someone’s removal from
office, be it a BRP or a liquidator in relation to a company, or a
trustee or an
executor, or some other office bearer, the mere fact
that the court has held that they should no longer fill that office
does not,
in and of itself, constitute exceptional circumstances.
There must be something more in the circumstances of the particular
case
that makes the immediate implementation of the removal order
necessary.
[47]
The need to establish exceptional circumstances is likely to be
closely linked to the applicant
establishing that they will suffer
irreparable harm if the removal order is not implemented immediately.
One can readily imagine
that an order for the removal of a dishonest
BRP will provide grounds for the court to order that the removal
order should have
immediate operative effect. But unless there is a
real and substantial risk of immediate and irreparable harm being
suffered while
waiting for the enrolment, hearing and outcome of the
appeal, the foundation for an execution order will be
absent.’[Footnotes
omitted]
[10]
The opposing respondents contend that Acting Judge Snyman’s
order is an ordinary administration
order that should only be
effected once the appeal is complete. They argued as follows:
‘
In
Knoop v
Gupta
, the SCA held that an order removing certain business
rescue practitioners from their positions (because they failed to
fulfil
their duties as BRPs in good faith) should remain stayed
because, inter alia, there is nothing inherently exceptional about
BRPs
failing to fulfil their duties in good faith. On the contrary,
an application for the removal of a BRP is a very ordinary
application:
[55]
…the complaints [against the BRPs] demonstrated that the
circumstances were not exceptional.
Were these to constitute
exceptional circumstances, an execution order would have to issue in
every case of the removal of a BRP
under s 139(2) of the Act, and
indeed in every removal of a liquidator, trustee, executor or similar
office holder. However routine
or mundane the grounds of removal,
they would always be treated as exceptional.
In the present matter
there is nothing exceptional about the re-appointment of Sono as
administrator. If the SCA was willing to
allow unfit BRPs to stay in
their positions pending the appeal (because there is nothing
exceptional about such a scenario), then
this court must allow Sono’s
appointment to be stayed pending the appeal (because there is nothing
exceptional about such
an appointment).’
Analysis
and findings
[11]
In my view, the circumstances of this case give rise to
‘exceptionality’ as contemplated.
[12]
Firstly, it is plain from the papers before me that the opposing
respondents themselves agreed
with the applicant that the Union
(CEPPWAWU) needs to remain under administration at least until 12
December 2023.
[13]
I say this because, in the appeal notice, there is no challenge, even
indirectly to Snyman’s
order that “
the administration
order of 4 June 2020 in terms of which Chemical, Energy, Paper,
Printing, Wood and Allied Workers’ Union
(CEPPWAWU) is placed
under administration in terms of section 103A is extended to 12
December 2023”
. There is also no attack on his finding that
“
all parties were ad idem that it is justified that CEPPWAWU
should still remain under administration and the termination of
administration
is currently not a viable option or even on the
table
”. There is also no attack on his finding that “
it
is clear from the no relief sought by the individual applicants in
prayer 6 of Part B of the notice of motion that they do not
seek the
variation of any of the terms of the administration orders granted on
4 June 2020 and 24 March 2022
.
The notice of motion in fact
prays that the terms of these orders continue to apply mutatis
mutandis. All that the individual applicants
seek is a replacement of
the administrator”
. The grounds of appeal are limited to
complaints that “
the learned judge should have held that the
applicants had the right to propose a new administrator”
and “
the learned judge should have appointed Soobedaar”
.
[14]
Secondly, if the order is not put into operation, the relief granted
to the Registrar who is
put in a position to exercise a measure of
supervision over trade unions by the LRA and ensure the proper
functioning of trade
unions, will, regardless of the outcome of the
application for leave to appeal, be forfeited because the short
duration of the
order and the important and specific mandates therein
will expire before exhaustion of the appeal process.
[15]
As stated by Sutherland J in
Incubeta
, the plight of the
victor alone is probably all that is required to pass muster and a
court order ought not to be lightly allowed
to evaporate, a fate,
which seemed to him, would tend to undermine the role of the courts
in ordering of legal and social relations.
[16]
Regarding the issue of irreparable harm, it follows from the
undisputed fact that the Union needs
to remain under administration
that, as contended by the Registrar, it is more likely than not that
the Union and its members will
inevitably suffer irreparable harm
without an administrator. An administration order is premised on the
existence and prevention
of possible irreparable harm to the Union
and its members.
[17]
As noted by Snyman AJ in his judgment (a finding also not under
attack in the appeal):
‘
[55]
…administration of a trade union under section 103A is an
alternative to the winding up of a
trade union… In terms of
section 103(1) of the LRA, a trade union is wound up where there
exists a reason, that cannot be
remedied, which caused the trade
union to be unable to continue to function. It follows that in the
case of administration under
section 103A, the reason adversely
impacting on the ability of the trade union to function is capable of
being remedied, and the
trade union, for intents and purposes, is
capable of being saved.’
[18]
I also note that s 103A(5) provides that the Labour Court may, on
application by the trade union
or registrar, if it is satisfied that
an administrator is no longer required, terminate the appointment of
the administrator, on
appropriate conditions. This means that an
abrupt and unceremonious termination with no appropriate handover
process may not be
competent and that it may be necessary to
terminate the administration on appropriate conditions to prevent
harm to the Union and
its members.
[19]
It is also plain from the order of Snyman AJ, that it is unlikely
that the Union and the opposing
respondents will suffer irreparable
harm if the order is not suspended. The order sets out detailed
conditions, safeguards and
time periods, designed to address the very
concerns raised by the said respondents.
[20]
Significantly, the judgment addresses every concern raised by the
opposing respondents and references
the applicable legal safeguards
and recourses available to them to remedy same.
[21]
Turning to the dismissed and retrenched employees, I fail to see the
logic of their argument
that they will suffer irreparable harm if the
order is not suspended because they will be excluded from the
upcoming Union Congress
which the Order mandates Sono to convene. The
suspension of the Order does not translate it into a reinstatement
order.
[22]
Based on the aforementioned considerations, I am satisfied that the
Registrar has made out a
case for the relief sought.
[23]
I therefore make the following order:
Order
1.
The order of Snyman AJ of 7 December 2022 under Case Number
J2896/2018 shall operate pending the outcome of the appeal process,
including the application for leave to appeal and any appeal
noted,
if at all.
2.
There is no order as to costs.
B
Whitcher
Judge
of the Labour Court of South Africa
Appearances:
For the
Applicant:
Adv T Madima, SC,
instructed by State
Attorney, Pretoria
For the First
Respondent:
Adv V Mndebele,
instructed by
KMNS Inc
For the Third to
Thirty Third Respondents:
Adv M Meyerowitz,
instructed by Niehaus
Attorneys
[1]
Act 66 of 1995, as amended.
[2]
The individual applicants here were variously members, employees and
office bearers of the trade
union.
[3]
Act 10 of 2013.
[4]
Which is that 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.
[5]
.2014
(3) SA 189 (GJ) at paras [25] – [28].
[6]
2021 (3) SA 135
(SCA) at paras [46] – [47].