National Union of Metal Workers of South Africa and others v AS Transmissions and Steerings (Pty) Ltd (JA91/98) [1999] ZALAC 20 (15 September 1999)

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[1999] ZALAC 20
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National Union of Metal Workers of South Africa and others v AS Transmissions and Steerings (Pty) Ltd (JA91/98) [1999] ZALAC 20; (2000) 21 ILJ 327 (LAC); [1999] 12 BLLR 1237 (LAC) (15 September 1999)

IN THE LABOUR APPEALCOURT OF
SOUTH AFRICA
HELD AT JOHANNESBURG
CASE NO.:JA 91/98
In the matter between:
NATIONAL UNION OF METAL
WORKERS
OF SOUTH AFRICA &
OTHERS
Appellants
and
AS TRANSMISSIONS AND
STEERINGS (PTY) LTD
Respondent
CONRADIE JA
[1] The first appellant
purports to act on behalf of members who were dismissed from the
respondent’s employ on 23 November 1989.
The dispute which arose
from these dismissals was referred to the industrial court in good
time in terms of section 46(9) of the
Labour Relations Act 28 of 1956
(‘the Act’). After the statement of defence had been filed, an
objection that the first appellant
had not been authorised to embark
on the litigation on behalf of its members (there were said to have
been two hundred and four of
them) was upheld. Leave was given to
amend the notice of application.
[2] After this, four years and
as many months went by. Without having produced the required
amendment or any proof of its authority
to act, the first appellant
then enrolled the application again. It was ordered by the court to
put matters right within twenty-one
days. It failed to comply with
the order, but some time in June 1995 produced an amendment to the
notice of application. It was
served on the respondent on 25
November 1996. It is doubtful whether this step remedied the
objection relating to the lack of authority
and, in fact, the first
appellant later reverted to its original notice of application.
Almost a year later the application was
enrolled for trial.
Settlement negotiations caused a further delay. The application was
finally heard in November 1998 when the
court gave an order
instructing the registrar to remove the matter from the roll and not
to re-enroll it. It is common cause that
the effect of this order
was to permanently stay the proceedings.
[3] Mr. Kennedy, who appeared
for the respondent, relied particularly on the delay of seven years,
after the initial objection to
the notice of application had been
upheld to the time when it was first set down for trial. There had
been two interlocutory applications
in the meantime but they were in
my view misguided and there had in any event been no compliance with
the orders given by the court.
[4] The respondent raised the
objection that continuation of the proceedings would be unfair. In
developing his argument Mr. Kennedy
emphasised that the need for
parties to proceed with expedition is of particular importance in
labour disputes. Section 46(9)(a)
of the Act requires such disputes
to be determined ‘as soon as possible.’ The submission is
correct. (See:
Amalgamated Clothing and Textile Workers’ Union
v Veldspun Ltd
1994 1 SA 162
(AD) at 169 G – H.) But I
consider that even had there been no such provision, the delay was
so outrageously long that it has
undermined all prospect of a fair
determination of the issues. The respondent has produced evidence
that all its witnesses to the
occurrences preceding the dismissals
had, by the time the application was finally brought on in the court
a quo
, left its employ. All but one of them was untraceable.
The one whose whereabouts could be ascertained had been involved in
a motor
accident which left him with serious physical and
psychological deficits.
[5] Mr. Van der Riet, for the
appellant, took a stand on principle. He submitted that the
industrial court could not neglect the
performance of its statutory
functions by refusing to determine a dispute, no matter how long it
took for the dispute to come before
it. The argument assumes that
the only statutory duty cast upon the industrial court was to
consider a dispute on the merits and
to give a determination
thereon. The assumption is in my view not valid. The power of the
industrial court was not confined to
making determinations under
section 46(9) of the Act. It was also empowered by section 17(11)(h)
‘generally to deal with all
matters necessary or incidental to the
performance of its functions under this Act’. Mr. Van der Riet
suggested that the power
to put an end to a dispute without
determining the merits was so far–reaching that the legislature
cannot be considered to have
intended to grant it under this general
power. I do not agree. The industrial court commonly, and correctly,
determined disputes
by giving decisions on procedural matters. This
happened on each of the many occasions that an application for
condonation was
refused without a consideration of the merits of a
dispute. (See, for example
Mahlangu v African Oxygen Ltd
(1994) 15 ILJ 1117 (IC) and
Mziya v Putco Ltd
[2002] ZACC 30
;
[1999] 2 BLLR
103
(LAC)). It has never been suggested that the industrial court,
in doing so, acted outside its powers. The power to put an end to
proceedings by refusing condonation is very much like that which the
industrial court exercised
in casu
. There is no reason in
principle or logic why, if the legislature saw fit to grant the
former, it should be thought to have excluded
the latter under s
17(11)(h). (On the meaning of ‘determine’ see
Trident Steel
(Pty) Ltd v John NO & Others
, (1987) 8 ILJ 27 (W) at 34 B –
F).
[7] This court has recently
(12 August 1999) given a decision in the matter of
Sacca Ltd v
Thipe
(case no JA65/98, unreported). In it (per Conradie JA,
Nicholson JA concurring) the
dicta
in
Manyasha v Minister
of Law & Order
[1998] ZASCA 112
;
1999 (2) SA 179
(SCA) at 187 A – B, were
endorsed. A litigant who is faced with a delay going beyond that
permitted by the rules of court, is
not obliged to compel a
reluctant adversary to hurry his case along. The rules relating to
barring are there for the benefit of
a defendant or respondent. They
are not there to force him or her to engage in unwanted litigation.
[8] It is plain from the
concurring judgment in
Sacca Ltd v Thipe & Another
(supra) that the industrial court must be considered to have had the
power to make an order effectively putting an end to the litigation.
(See also
National Union of Mineworkers v Minesa Mining (Pty) Ltd
t/a Rustplaas Colliery
(1992) 13 ILJ 1021 (IC))
[9] I end this judgment on a
whimsical note. The first appellant states in its notice of
application that it acts on its own behalf
as well as on behalf of
the second to two hundred and fourth applicants. It failed to
deliver a power of attorney by 10 December
1998 as it should, in
terms of rule 6 of the labour appeal court rules, have done. It
then, in applying for condonation for this
omission, annexed two
powers of attorney dated the same day and in identical terms but
signed by two different persons, each purporting
to act on behalf of
the first appellant. It does not appear that either has been
authorised to do so. Although Mr. Kennedy admitted
from the bar that
the signatories were the secretary-general and the legal officer of
the first appellant, there is nothing to
indicate that these
functionaries have authority to involve the first appellant in
litigation. This is obviously unsatisfactory.
There is no power of
attorney from any of the individual ‘appellants’ nor, assuming
this to have been ordered by the industrial
court, is there any
authorisation to the first appellant by any of them to act on his or
her behalf. This is yet another indication
of the sub-standard way
in which this litigation has been conducted. The application for
condonation of the late filing of the
power of attorney must be
refused. I have little difficulty in coming to this conclusion
since, as would have been evident from
the preceding discussion, the
individual appellants have, nearly ten years after the problem first
arose, not yet managed to prove
that they have given the first
appellant authorisation to act on their behalf, and, moreover, are
dreadfully weak on the merits.
The application for
condonation is dismissed and the appeal is struck off the roll with
costs.
_____________
CONRADIE JA
I agree
___________
ZONDO AJP
I agree
________________
MOGOENG AJA