Xaba v Portnet Limited (DA20/98) [1999] ZALAC 39 (19 October 1999)

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[1999] ZALAC 39
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Xaba v Portnet Limited (DA20/98) [1999] ZALAC 39; [2000] 1 BLLR 55 (LAC); (2000) 21 ILJ 1739 (LAC) (19 October 1999)

IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA
HELD
AT DURBAN
Case
no : DA 20/98
In
the matter between
Jabulani
Shadrack Xaba Appellant
and
Portnet
Limited Respondent
___________________________________________________________
JUDGMENT
___________________________________________________________
Zondo
AJP:
Introduction
This
is an appeal against a ruling of the industrial court that it did
not have jurisdiction to entertain and determine a dispute
of an
alleged unfair labour practice between the appellant and the
respondent. However, before the appeal can be considered, there
are
two matters of a procedural nature which require consideration. It
is convenient to deal with those first before considering
the appeal
itself.
Late
Delivery of Respondent’s Heads of Argument
The
respondent’s heads of argument were filed two days after the
deadline. The respondent applied for condonation in respect of
such
delay. Although the appellant opposed the respondent’s condonation
application, we granted it because good cause was shown.
The
explanation for the delay was that, as a result of a failure by the
appellant’s attorney to include certain documents in the
record,
the respondent’s attorneys had to ask the appellant’s attorney
for copies and when someone from the respondent’s attorney’s
office went to the appellant’s Attorney’s firm to fetch such
copies in terms of an arrangement, the offices of the appellant’s
attorney were closed and this caused the delay. The period of delay
was negligible. The appellant could not show that it had suffered
any
prejudice as a result of such delay.
3.
Delivery of the Record
3.1 In
this matter the notice of appeal was filed on the 22
nd
July 1998. The record of the proceedings in the industrial court was
filed on the 11
th
January 1999. In the meantime the
respondent had lodged an application to this Court on the 10
th
November 1998 in which it sought an order dismissing the appellant’s
appeal. This to was brought, inter alia, on the ground that
the
appellant had failed to deliver the record within the period of 60
days required by rule 5(8) of this Court, and, that, by virtue
of
the provisions of Rule 5(17), the appellant was deemed to have
withdrawn the appeal.
3.2 In
response to the above application of the respondent, the appellant
brought an application for an order in the following terms:
“1. Condonating
(sic) the late prosecution of the appeal in the above matter and/or
,
Extending
the time limits for the late prosecution of the appeal in the above
matter and,
Re-instating
the appeal in the above matter.”
3.3 The
respondent did not file any papers opposing the appellant’s
application for the above order. It transpired during argument
in
Court that the respondent had not been served with a copy of the
application. The appellant’s attorney could not produce any
proof
that there had been service of that application. However, in the end
the respondent waived its right to file answering affidavits
to
oppose the application. Nevertheless, the respondent opposed the
application and drew the Court’s attention to certain aspects
in
the application itself to support its contention that condonation
should not be granted.
3.4 It
may not be necessary to deal with the question whether or not a
proper case for condonation has been made out depending on
whether
there is a rule of this court which the appellant failed to comply
with in delivering the record when it did. That is the
question I now
turn to consider.
Did
the appellant fail to comply with any applicable rule of this court
in delivering the record when he did?
3.5 In
taking the point that the appellant had failed to deliver the record
timeously, the respondent relied on the provisions of
Rule 5(8) read
with rule 5A(4) of the Rules of this Court as published under GN no
1666, GG 17495 of 14 October 1996 as amended by
GN R961 GG 18142 of
11 July 1997. On the basis of rule 5(17) the respondent submitted
that the appellant was deemed to have withdrawn
his appeal and that,
accordingly, the
“appeal”
should be dismissed with costs.
3.6 When
the appellant filed its application for condonation with regard to
the delivery of the record, it made reference to rule
2(1) of the
rules published under GN R161 GG 13717 of the 10
th
of
January 1992. Those rules governed the conduct of proceedings of the
Labour Appeal Court established by section 17 A(1) of the
now
repealed Labour Relations Act, 1956 (Act No 28 of 1966) (“ the old
Act”).
3.7 The
Labour Appeal Court to which the rules relied upon by the appellant
applied is the old Labour Appeal Court which had been
established by
sec 17A(1) of the old Act, and not the present Labour Appeal Court.
The present Labour Appeal Court was established
by sec 167 of the
Labour Relations Act, 1995 (Act No 66 of 1995)(“the Act”). The
two courts should not be confused despite
the fact that they bear the
same name. The differences between the two Courts are well known. I
do not consider it necessary to spell
them out.
3.8 As
the rules relied upon by the appellant applied to the old Labour
Appeal Court, they cannot apply to the current Labour Appeal
Court
(because these two courts have separate identities) unless they were
made applicable to the current Labour Appeal Court by
an appropriate
legislative measure e.g by a statutory provision or by a rule of this
Court. In this regard I have considered the
transitional provisions
contained in item 22 of Schedule 7 to the Act together with sec
212(1), (2) and (3) of the Act. I am satisfied
that there is no such
legislative measure. I have also considered the rules of this Court
and I am satisfied that there is no rule
of this Court which makes
those rules applicable to this Court. Accordingly, I conclude that
the rules relied upon by the appellant
are of no application to this
Court and this matter.
3.9 The
rules relied upon by the respondent are rule 5(8) and (17) read with
rule 5A(4) of the rules of this Court as published under
GN no 1666,
GG 17495 of 14 October 1996 as amended by GN R961, GG 18142 of the
11
th
July 1997. A reading of all the rules leaves one in
no doubt that these rules were intended in the main for appeals to
this Court
emanating from the Labour Court. However, it seems to me
that the Rules Board overlooked the fact that it had also to provide
for
rules for appeals emanating from the industrial court to this
Court. When this oversight was discovered, the Rules Board inserted
Rule 5A which relates to appeals from the industrial court. Those
appeals come to this Court by virtue of sec 17(21A) of the old
Act
read with item 22(5) of Schedule 7 to the Act. This is such an
appeal. Therefore, there can be no doubt that Rule 5A applies
to this
appeal.
3.10 The
heading to Rule 5A is:
“Appeal from the industrial court.”
This indicates that its provisions apply to appeals emanating
from the industrial court. That this is so is confirmed by a reading
of the provisions of the rule itself. Rule 5A has four subrules. The
first three subrules are not of immediate relevance to this
judgement. However, subrule (4) is. It reads thus:
“ When an
appeal has been noted, the provisions of rules 5(7) to (22) apply.”
What does this mean? In my view rule 5(4) means that, when an appeal
has been noted, an appellant and a respondent in an appeal against
a
decision of the industrial court have to comply with the requirement
of the provisions of rule 5(7) to 5(22). It is necessary to
consider,
at least, some of the requirements prescribed by the provisions of
sub- rules (7) to (22).
3.11 In
terms of rule 5(7) an appellant is required to serve a copy of the
record
“of
the proceedings in the Labour Court
.”
For an appellant in an appeal against a decision of the industrial
court this requirement would be impossible to comply with
because the
only record which such appellant would have would relate to
proceedings in the industrial court (and not in the Labour
Court) as
the proceedings he would be seeking to appeal against would have
taken place in the industrial court. Accordingly, the
rule makes no
sense when, by virtue of rule 5A (4), it is sought to be applied to
an appeal emanating from the industrial court.
3.12 Rule
5(8) requires that the appeal record must be
“delivered within
60 days of the date of the order granting leave to appeal unless the
appeal is noted after a successful petition
for leave to appeal, in
which case, the record must be delivered within the period fixed by
the court under rule 4(9).
“
3.13 The
difficulty I have with rule 5(8) is that the period within which an
appellant against a judgement of the industrial court
is required to
deliver the record is calculated from a non-existent date, namely,
“
the date of the order granting leave to appeal.”
There is no
such date in respect of appeals against judgements of the industrial
court. This is so because parties to disputes in
that court have an
automatic right of appeal to this Court against its judgements.
Unlike parties in the Labour Court who require
leave to appeal before
they have the right of appeal , parties to disputes in the industrial
court do not require any leave to appeal.
3.14 In
appeals against Judgement of the industrial court ,
“the date of
the order granting leave to appeal
”,
from which the 60
days (referred to in rule 5(8)) must be calculated, is a date which
never occurs. It, therefore, stands to reason
that it can never be
said in such appeals that the period prescribed by Rule 5(8) for the
delivery of the record has expired. Because
the date from when the 60
days must be calculated never occurs, the period of 60 days never
commences to run.
3.15 Rule
5(17) provides:
“
If
an appellant fails to lodge the record within the prescribed period,
the appellant will be deemed to have withdrawn the appeal
unless the
appellant has within that period applied to the respondent or the
respondent’s representative for consent to an extension
of time. If
consent
is refused, the appellant may, after giving notice to the registrar,
apply to the Judge President in Chambers for an extension
of time.”
3.16 In
terms of sub-rule (17) the consequences of an appellant’s failure
to lodge the record within the period prescribed by rule
5(8) can be
fatal to an appeal. However, before such consequences can follow, an
appellant must have failed
“to
lodge the record within
the prescribed period.”
In this case, for the reasons already
given above, it cannot be said that the appellant failed to lodge the
record within the period
prescribed by rule 5(8). Accordingly, the
appellant cannot be said to have withdrawn his appeal in terms of
rule 5(17).
3.17 The
provisions of rule 5A(4) of the rules of this Court complicate rather
than simplify the appeal procedure applicable to appeals
from the
industrial court. This is so firstly because it is not clear whether
the provisions of rule 5A were intended to prescribe
the whole appeal
procedure applicable to such appeals or only part of such procedure
and, secondly, because the provisions of the
subrules to rule 5 which
rule 5A(4) seeks to make applicable to such appeals are simply
unworkable when sought to be applied to appeals
from the industrial
court. I say this for the following reasons:-
(A) the
record that subrules (7) and (8) require to be served, filed and
delivered is the record of the proceedings in the Labour
Court and
not the record of proceedings in the industrial court (see also rule
5(14) and (15);
(b) the
documents which subrule (10)(h) requires to be included in the record
are only those documents which were referred to “
in any
proceedings in the Labour Court”
- this could not mean
documents referred to in proceedings in the industrial court;
As
mentioned above, there are difficulties relating to the period
within which subrule (8) requires the record to be delivered;
the
certification of the record which sub-rule (9) requires cannot be
effected because the person required to certify the record
as
correct, who is the registrar of the Labour Court, cannot be
competent to certify such record as correct because the record
that
the appellant would submit for such certification would be the
record of proceedings in the industrial court and not the record
of
proceedings in the Labour Court as contemplated in sub-rule (9);
by
reason of the difficulties already mentioned above in relation to
subrule (8), the provisions of sub-rule 17 cannot be invoked
in
appeals emanating from the industrial court,
rule
8 envisages that an appeal can only be set down “when the record
on appeal has been delivered and subject to the directions
of the
Judge President”; the reference to the record in rule 8 must be a
reference to the record as contemplated in rule 5(7)
read with
subrules (9), (10) and (14); If I am correct in this, as I think I
must be, then the position is that an appeal against
a judgment of
the industrial court can never be set down for argument without
disregarding the injunction in rule 8 that can only
happen after the
record of the proceedings in the Labour Court has been delivered;
If
an appeal cannot be set down because the record contemplated by the
rules cannot be delivered, there will be no deadline for
the
delivery of the heads of argument in terms of rule 9 because the
period within which heads of argument must be delivered is
calculated from the date of the hearing of the appeal;
the
deadline in rule 7, which makes provision for the making of an
application for a party to be admitted as
amicus curiae
,
cannot operate because it (i.e. the deadline) is calculated from the
date of the hearing of the appeal once such date has been
determined
and such date cannot be determined without acting in breach of the
rules;
an
appeal from the industrial court cannot be set down for hearing
without breaching the rules because there are requirements of
rule 5
which simply can not be met which are required to be met before the
appeal can be set down;
if
an appeal cannot be set down, the deadline for the delivery by the
respondent’s representative of a power of attorney in terms
of
rule 6 authorising him or her to oppose such an appeal cannot
operate because it is required in that event by rule 6(2) to be
delivered when the respondent delivers its heads of argument and
there will be no deadline for the delivery of heads of argument
for
the reason that the appeal cannot be set down;
3.18 The
sum total of the above is simply that at least the majority of the
rules of this Court can simply not be effectively applied
to appeals
from the industrial court whereas they can be applied, it would
appear, without much difficulty to appeals against judgments
of the
Labour Court. The latter appeals are the appeals for which, it is
clear, the rules of this Court were primarily made.
3.19 In
the light of the above the question still stands whether it can be
said that the appellant failed to comply with rule 5(8)
in that it
delivered the record of appeal outside the time period prescribed by
rule 5(8). In my judgment, for the reasons advanced
above, it cannot
be said. For the same reason it can also not be said that by virtue
of rule 5(17) the appellant is deemed to have
withdrawn the appeal.
3.20 The
conclusion I have reached is not a conclusion that one would reach
lightly about court rules. Indeed, before such a conclusion
can be
reached about court rules, one would attempt to find, if at all
possible, another interpretation of the rules which would
render them
effective. In my search for another way of reading various provisions
of rule 5, I have considered whether purposive
interpretation may be
the answer to the difficulties which arise when the rules of this
Court are sought to be applied to appeals
against judgments of the
industrial court. (On purposive interpretation see
Ndima &
Others v Waverley Blankets Ltd; Sithukuza & Others v Waverley
Blankets Ltd
(1999) 20 ILJ 1563 (LC) at 1570 J - 1072 G).
3.21 Can
it be that, if purposive interpretation was resorted to, there would
be room to read various provisions of the rules of this
Court as to
say:-
(a) the
reference to the Labour Court in rule 5 would be read as a reference
to the industrial court?
(b) the
reference in rule 5(8) to the day of the granting of leave to appeal
is a reference to the day of the noting of an appeal?
(c) the
reference in rule 5(9) to the registrar of the Labour Court is a
reference to the registrar of the industrial court?
3.22 I
would be the first one to admit that, if the subrules to rule 5 can
be read in the manner indicated par3.21 above, that would
promote the
smooth running of appeals. However, to my mind, not even purposive
interpretation can help because of the specific wording
used in the
provisions of the rules, in particular rule 5. There is a limit to
which the wording of a statute or rule may be disregarded
in the
process of an application of purposive interpretation. In my view
such limit is necessary if we are to heed, as I think we
should, the
unanimous warning of the Constitutional Court given in
S v Zuma 2
1995(2) SA642 (CC).
3.23 At
652I in Zuma Kentrige AJ, (with Chaskalson P, Langa J (as he then
was), Ackerman J, Didcott J, Krieger J, Madala J, Mahomed
J(as he
then was), O” Regan J and Sachs J concurring), said :
“ While
we must always be conscious of the values underlying a written
instrument , it
is nonetheless our task to interpret a written
instrument.”
At 653A the Court went on and said
“We must
heed Lord Wilberforce’s reminder that even a constitution is a
legal instrument, the language of which must be
respected
.
If the language used by the lawgiver is ignored in favour of a
general resort to “values” the result is not interpretation but
divination”.
3.24 The
conclusion I have reached about whether an appellant in an appeal
from the industrial court has a deadline by when to deliver
the
record is given within the context of rule 5(8) read with rule 5A(4)
only. I say this because I have discovered that the Act
has a
provision which may mean that, by virtue of rules of another court,
an appellant does have a deadline within which it must
deliver the
record. The statutory provision I refer to is section 173(3) of the
Act. The Court I refer to is the Supreme Court of
Appeal.
3.25 Section
173(3) provides thus:-
“
An
appeal to the Labour Appeal Court must be noted and prosecuted as if
it were an appeal to the Appellate Division of the High Court
in
civil proceedings, except that the appeal must be noted within 21
days after the date on which leave to appeal has been granted.”
3.26 As
there is no court known as the Appellate Division of the High Court
in South Africa but there is one known as the Supreme
Court of Appeal
which was previously known as the Appellate Division of the Supreme
Court, the reference in section 173(3) to the
Appellate Division of
the High Court must be a reference to the Supreme Court of Appeal.
The question which arises is what the meaning
and effect of section
173(3) are. What its effect is depends on what is meant by the phrase
“noted and prosecuted as if”
in section 173(3). In so far
as section 173(3) says an appeal to the Labour Appeal Court must be
“noted”
as if it is an appeal to the Supreme Court of
Appeal in civil proceedings, that must, inevitably, mean that the
step that constitutes
noting an appeal in the context of an appeal to
the Supreme Court of Appeal is the step that must be taken when an
appeal is noted
to this Court.
3.27 It
is clear (from section 173(3)) that, when the legislature was
enacting section 173(3), it decided itself to determine the
period
within which an appeal to the Labour Appeal Court must be noted and
did not, as one would have expected, leave the determination
of such
a period to someone else, e.g the Rules Board, nor did it want the
period within which such an appeal should be noted to
be the same as
the period prescribed elsewhere in respect of appeals to the Supreme
Court of Appeal in civil proceedings. That is
why it specifically
said such period in appeals to the Labour Appeal Court is 21 days
after the date on which leave to appeal has
been granted.
3.28 If
the legislature was happy to leave such period to be the same as the
period prescribed for the noting of civil appeals to
the Supreme
Court of Appeal, it would have refrained from specifying the period
of twenty-one days in section 173(3). In the light
of this, it seems
to me that, subject to what I say below about section 176, there is
every reason to suggest that in enacting section
173(3), the
legislature intended that the rules of the Supreme Court of Appeal
relating to the noting of civil appeals to that Court
would govern
the noting of appeals to the Labour Appeal Court.
3.29 The
next question which arises in connection with section 173(3) is
whether, when section 173(3) says an appeal to the Labour
Appeal
Court must be “
prosecuted as if
” it were an appeal to the
Supreme Court of Appeal in civil proceedings, that means that every
step which an appellant in a Labour
Appeal Court appeal must take
between the noting and the hearing of an appeal must be every step
which would have been taken in prosecuting
a civil appeal to the
Supreme Court of Appeal in terms of the rules of the latter Court or
whether the steps that must be taken must
be the same but they do
not necessarily have to be taken in the same way and within the same
periods as are prescribed by the rules
of the Supreme Court of Appeal
in civil appeals to that Court.
3.30 The
thought that, in enacting section 173(3), the legislature may have
intended the last of the two interpretations mentioned
in the
preceding paragraph arises when regard is had to section 176(1) and
(2) of the Act. Section 176(1) empowers the Rules Board
to “
make
rules to regulate the conduct of the proceedings in the Labour Appeal
Court”
. Section 176(2) says that the Rules Board
“has all
the powers referred to in section 159 when it makes rules for the
Labour Appeal Court”
. The powers given to the Rules Board by
section 159 in making rules are as wide as they can be. In my view
they are not narrower
than any that I would have expected to be given
to a body of that kind.
3.31 Having
regard to the powers which the legislature sought to give to the
Rules Board when making rules for this Court, it seems
highly
unlikely that it intended the Rules Board to have limited powers such
as only to prescribe - not the steps which must be taken
between the
noting and the hearing of such appeals to this Court (because that is
already contemplated in section 173(3)) but only
the periods within
which such steps could be taken. If it is unlikely that the
legislature intended this, then probably the legislature
intended
that, if there was to be a Rules Board, such Rules Board should have
the wide powers specified in section 159 read with
section 176(1) and
(2) in order for it to perform its functions properly.
3.32 Having
said what I have just said at the end of the preceding paragraph, I
must also say that, before it can be accepted that
the legislature
intended that there should be a Rules Board with as wide powers as
are set out in section 159 read with section 176(1)
and (2), another
question arises which needs to be answered. That question is:- If, in
enacting section 176(1) and (2), the legislature
intended that there
should be a Rules Board with as wide powers as are to be found in
section 159 read with section 176(1) and (2)
which would make rules
governing appeals to the Labour Appeal Court, why then was it
necessary for the legislature to at the same
time enact section
173(3) which tends to suggest that appeals to this Court are to be
governed by rules of the Supreme Court of Appeal
relating to civil
appeals? This question arises because, if section 173(3) means that
the rules of the Supreme Court of Appeal govern
appeals to this
Court, there would be no need for the Rules Board to be given powers
to make rules governing appeals to the Labour
Appeal Court because,
by reason of section 173(3), those rules, being the rules oft he
Supreme Court of Appeal governing civil appeals,
would already be
there. In what circumstances, then, would the RulesBoard use the
wide powers that section 159 read with section
176(2) gives it?
3.33 If
the position is that the legislature did not, by virtue of section
173(3), intend that the rules of the Supreme Court of Appeal
should
govern appeals to the Labour Appeal Court, and if its intention was
that rules governing appeals to the Labour Appeal Court
should be
those which could be made by the Rules Board in terms of section
176(1) and (2), what then did it seek to achieve in enacting
section
173(3)? To my mind the provisions of section 173(3) and those of
section 176(1) and (2) are mutually exclusive and reflect
contradictory intentions on the part of the legislature.
3.34 I
have had the opportunity of examining the rules of the Supreme Court
of Appeal. It seems to me that, in so far as the position
may be that
appeals to this Court are governed by section 173(3) read with the
rules of the Supreme Court of Appeal in civil proceedings,
the
problems created by rule 5(7) and (8) in regard to which record would
be required to be delivered and the deadline for its delivery
would
not arise. There would also be no difficulty created by references to
the Labour Court in those cases where the reference should
have been
to the industrial court or better still, to the court appealed from.
3.35 The
problem which the Rules Board sought to avoid in rule 5(1) by
enacting rule 5A(1) would, however, still persist because the
period
within which an appeal must be noted is required by section 173(3) to
be from a non-existent date when one deals with an appeal
against a
judgment of the industrial court. But, at least, if the rules of the
Supreme Court of Appeal are applied, an appeal would
be capable of
prosecution until it is heard - unlike when it is sought to use the
rules of this Court in appeals against judgments
of the industrial
court because in such cases an appeal cannot reach finality without
the rules of this Court being disregarded in
one way or another.
3.36 When
all the above is said and done, the question still remains: Are all
appeals to this Court governed by the rules of this
Court or are they
governed by the rules of the Supreme Court of Appeal which govern
civil appeals to that court or is the position
that appeals against
judgments of the Labour Court are governed by the rules of this Court
but those against judgments of the industrial
court are governed by
some but not all rules of this Court? It seems to me that the
provisions of section 173(3) and those of section
176(1) and (2) as
well as the provisions of rule 5A(4) of the rules of this Court
create much confusion and uncertainty. This situation
is totally
unacceptable. It seems that there is a pressing need for an amendment
of the Act as well as the rules of this Court in
regard to the
regulation of appeals to this Court. It seems to me further that
pending such amendments, I should consider issuing
practice
directions to deal with the situation and that in doing so I should
follow the rules of the Supreme Court of Appeal as much
as possible.
3.37 Alternatively
to the above, the Court may, as it is empowered to by rule 12(1),
“excuse the parties from compliance” with
any such rule of this
Court as they may have failed to comply with or as they may have
found it impossible to comply with. That is
if the Rules Board had
power to make such rules. If the Rules Board had no power to make
such rules, then when section 173 (3) uses
the phrase “
as if
“when it says appeals to this Court must be noted and prosecuted as
if they are appeals to the Supreme Court of Appeal in civil
proceedings, it may also be referring to the rule of the Supreme
Court of Appeal which empowers the Chief Justice to issue practice
directions governing civil appeals to the Supreme Court of Appeal and
that would mean that the Judge President of the Labour Appeal
Court
as well would have power even in that scenario to issue appropriate
practice directions.
3.38 Finally,
to my mind, the uncertainty surrounding the rules governing appeals
to this Court is such that, within acceptable limits,
this Court
should be quite benevolent in granting condonation for non-compliance
with one or other rule which may be applicable to
one or other appeal
to this Court pending such certainty as may be created by an
appropriate practice direction or necessary statutory
amendment or
amendment of the rules of this Court.
3.39 In
the light of all the above I am satisfied that, in so far as the
delivery of the record in this appeal may be governed by
the rules of
the Supreme Court of Appeal and in so far as the appellant may have
failed to comply with the relevant rule of the Supreme
Court of
Appeal, such non-compliance should be condoned. Without going into
details, it is clear from the record that the delay was
caused by the
fact that the appellant’s attorney mistakenly but
bona fide
believed that the transcript of the argument in the industrial court
was necessary for inclusion in the record and, for reasons beyond
his
control, the transcript was not made available for a long time. I now
turn to consider the appeal on the merits.
The
Appeal
4.1 The
appellant was employed by the respondent in 1984. On the 26
th
May 1995 he was dismissed. In September 1997 his present attorney
referred an alleged unfair labour practice dispute on his behalf
to
the industrial court for determination in terms of section 46(9) of
the old Act. The dispute related to the fairness or otherwise
of the
appellant’s dismissal.
4.2 Prior
to referring the dispute to the industrial court, the appellant’s
attorney had referred it to the Transnet Industrial
Council which had
jurisdiction to conciliate such disputes between, among others, the
respondent and its employees. However, the
referral to the council
had been made way out of time. An application for condonation for
such late referral had been lodged about
four months after the
referral itself.
4.3 On
appeal before us, Mr Mbatha, the appellant’s attorney who appeared
for the appellant, submitted that the appellant’s real
complaint on
appeal lay with the sequence in which the industrial court had
decided to deal with the points in limine which the parties
had
raised against each other. He complained that, despite his request
that the industrial court should start with the appellant’s
point
in limine against the respondent, the industrial court started with
respondent’s point in limine against the appellant.
4.4 The
appellant’s point in limine against the respondent was that the
latter’s statement of defence, which contained the respondent’s
point in limine, was not properly before the court because it had
been filed out of time and there was no condonation application.
If
the statement of defence was not properly before the court, then, so
went the argument, the point in limine contained therein
could also
not be considered by the court because it, too, was not properly
before the court.
4.5 There
is no substance in the appellant’s complaint because the point in
limine raised by the respondent related to a matter
of the
jurisdiction of the industrial court and a court or tribunal is
always entitled, in fact it is obliged, to satisfy itself
that it has
jurisdiction before it can deal with a matter.
4.6 The
only basis on which the appellant claimed that the industrial court
had jurisdiction was that his attorney and the respondent
(represented by one Mr Olmesdahl) had agreed in terms of sec 46(9)(d)
of the old Act that the dispute be referred to the industrial
court
for determination by mutual consent.
Section
46(9)(d) says:
“Notwithstanding the provisions of paragraph(a)
and (b), an industrial council, or , whenever there is no industrial
council having
jurisdiction in respect of the dispute, the parties to
the dispute, may agree to report to the industrial court that it is
or they
are satisfied that it or they
will not be able to
settle the dispute, and on receipt of such a report, the industrial
court shall as soon as possible determine
the dispute in terms of
paragraph (c).”
It
is therefore clear from sec 46(9)(d) that in certain circumstances
parties to an alleged unfair labour practice dispute could by
agreement confer jurisdiction on the industrial court to determine
such a dispute. In the case before us the question would then
first
be whether this was a case where parties could do that and, if so,
whether in this the parties did conclude such an agreement.
4.7 The
industrial court did not consider the question whether this was a
case where the parties to the dispute could confer jurisdiction
on it
by agreement. However, it did consider whether there was such an
agreement between the parties. The industrial court found
that no
such agreement had been reached between the appellant’s attorney
and Mr Olmesdahl
and,
that, therefore, it did not have jurisdiction. It then
dismissed
the appellant’s claim. The industrial court misdirected itself in
finding that no agreement had been reached between the
appellant’s
attorney and Mr Olmesdahl. I say this because the evidence placed by
the appellant’s attorney before the industrial
court in the form of
an affidavit that such an agreement had been reached was
uncontradicted as the respondent had not filed any
opposing
affidavits to deny that version. The industrial court should have
found that ,on the evidence before it, such an agreement
had been
reached. However, for the reasons that follow, the existence of such
an agreement would not, in my view, have assisted the
appellant in
establishing the jurisdiction of the industrial court in terms of sec
46(9)(d).
4.8 A
close analysis of section 46(9)(d) reveals that in a dispute in
respect of which there was an industrial council with jurisdiction,
there was no provision enabling parties to a dispute to confer
jurisdiction on the industrial court by agreement. It was only in
a
case where there was no industrial council with jurisdiction that
parties could confer jurisdiction on the industrial court by
agreement. To do so they had to agree to report to the industrial
court that they would be unable to settle the dispute whereupon
the
industrial court would have jurisdiction to then determine the
dispute. Where there was an industrial council with jurisdiction,
it
was the industrial council (and not the parties) which had the power
to confer jurisdiction on the industrial court. It could
do so by
resolving to
“agree to report to the
industrial court
that it . . . is satisfied that it . . . will
not be able to
settle the dispute.”
(See sec 46(9)(d) of the old Act). In the
light of this I conclude, therefore, that the appellant’s reliance
on the agreement with
the respondent was misconceived. Accordingly,
for that reason, the industrial court did not have jurisdiction.
4.9 On
the issue of costs, the respondent’s Counsel submitted that costs
should be awarded in favour of the respondent.
4.10 In
those appeals which emanate from the industrial court, the issue of
costs is governed by the provisions of section 17(21A)(c)
of the old
Act read with item 22(5) of schedule 7 to the Act, which require this
Court to decide matters of costs
”according to the requirements
of law and fairness.”
The approach to be adopted by this Court
in deciding costs according to the requirements of law and fairness
was dealt with in
NUM v East Rand Gold & Uranium Co Ltd
[1991] ZASCA 168
;
1992
(1) SA 700
(A)
(
“Ergo”
) under the old Act. Under the
Act those provisions have been incorporated in sec 162 of the Act in
respect of the Labour Court.
The Labour Court has dealt with that
phrase as well and the approach to be adopted in regard to costs
under the Act.
(see Callguard Security Services (Pty) Ltd v
Transport & General Workers Union & others (1997) 18 ILJ 380
(LABOUR COURT).
In my view that is also the approach which this
Court is bound to adopt on matters of costs.
4.11 In
this case the respondent’s attempt to secure a dismissal of the
appellant’s appeal simply on the basis that the appellant
failed to
lodge the record in accordance with rule 5(8) and that in terms of
Rule 5(17) he was deemed to have withdrawn the appeal
has failed. On
the merits, the appellant has failed in its appeal but not on any of
the grounds relied upon by the respondent to
oppose the appeal. On
the basis of this as well as the general approach on costs which this
Court is required to follow as given
in
“Ergo”
above, I am
of the opinion that it would not be in accordance with the
requirements of law and fairness to make an order of costs
against
the appellant.
4.12 In
the result the appeal is dismissed with no order as to costs.
_____________________
RMM
Zondo
Acting
Judge President
I
concur I concur
______________
-------------
C
R Nicholson M.T. Mogoeng
Judge
of Appeal Acting Judge of Appeal
Appearances
:
For
the Appellant: Mr M.A.S Mbatha
Instructed
by: M.A.S Mbatha & CO
For
the respondent: Mr I Moodley
Instructed
by: Kruger Ngcobo Inc
Date
of hearing: 17 August 1999
Date
of Judgement: 19 October 1999
[1] When
this matter was called before us, there were a few issues which
needed to be dealt with before the merits of the appeal could
be
dealt with. The first one was an application by the respondent for
the condonation of the late filing of its heads of arguments.
It is
proper to begin with it.
[2] It
is not necessary to say much about this application save to say that
the heads of were only two or three days late. Mr Mbatha,
who
appeared for the applicant/appellant, opposed this application. His
opposition lacked good grounds and, after hearing argument
from both
sides, we had no hesitation
in
granting the required condonation. There was an acceptable
explanation for the delay. The period of delay was negligible and the
applicant/appellant had not been prejudiced in any by the delay in
the filing of the respondent’s heads of argument.
[3]
The next issue was an objection by the respondent to the
applicant’s/appellant’s notice of appeal. The objection was that
the notice of appeal which was served on the respondent bore neither
an office stamp of the registrar of this court nor a case number
to
show that it had been issued out. Another ground of objection was
that the notice of appeal was filed out of time and that, in
the
absence of a condonation application showing good cause for the
delay, the appeal should be dismissed on that ground alone. After
the
applicant’s attorney had received these objections, he filed an
application for condonation of the late filing of the notice
of
appeal.
[4] In
the application for condonation, the applicant’s attorney provided
evidence that although the judgement appeared to have
been signed on
the 12
th
June 1998 by the Industrial Court member who
heard it, he only received it in the 15
th
July 1998. He
also stated that within seven days thereafter (ie on the 22
nd
July 1998), he filed the notice of appeal. This evidence was not
challenged and must be accepted. At the hearing the respondent did
not persist in its objections relating to the notice of appeal. We
are satisfied that such condonation as may be necessary in law
ought
to be granted and it is hereby granted. I now turn to consider the
applicant’s application for condonation for the late filing
of the
record and the application for the reinstatement of the appeal in the
light of Rule 5(17) of the rules of this court.
THE
LATE LODGING OF THE RECORD
5.1 In
order to properly deal with the application for condonation in this
regard, it is necessary to refer to the relevant rules
of this court
governing the filing of records in appeal matters such as this on.
The appeal in this matter inter alia, an appeal
to this court against
a judgement of the industrial court in terms of sec 17(21A) of the
Labour Relations Act 1956 (Act no 28 of
1956) (“the old Act”)
read with item 22(5) of Schedule 7 to the Labour Relation Act 1995
(Act no66 of 1995(“the Act”).
5.2. Sec
17(21A) contains provisions which provided for appeals against
decisions of the industrial court to the Labour Appeal Court
that was
established under the old Act and consisted of a chairperson who used
to be a judge of the Supreme Court, as it was then
known as, and two
assessors appointed by such chairperson. That was the old LAC. Item
22 of Schedule 7 to the Act contains transitional
the transition form
the old order in labour relations under the old Act to the new order
in labour relations under the Act.
5.3 Item
22(5) provides that appeals against decisions of the industrial
court, to which items 22910 and (2) of schedule 7 to the
Act apply
must be made to the new Labour Appeal Court
(Which
is constituted before three judges all of whom must terms of sec
153(2)(a) read with sec 168(1)(c) of the Act, be judges of
High
Court). This matter relates to an appeal to which item 22(1) and (2)
of Schedule 7 apply. In those circumstances Rule 5A of
the rules of
this court as promulgated under GN no 1666, GG 17495 of 14 October
1995 as amended, in terms of sec 176 of the Act applies.
5.4 With
its heading, Rules 5A reads as follows:
“
5A Appeal
from the industrial court”
(1)
5.5 It
will be seen from rules 5A that the provision of those rules relate
to the delivery of a notice of appeal, the contents of
a notice of
appeal, and the notice of a cross appeal as well its contents. For
any other aspects relating to such an appeal, rule
5A(4) refers one
to appeals against judgements of the Labour Court to this court. It
does so in these terms: “After an appeal the
provision of rule 5(7)
to (22) apply”. Rule 5A was inserted in the middle of provisions of
rules applicable to appeals not from
the industrial court by means of
GN R961 GG18142 of the 11
th
July 19997. Once then goes
back to the provisions of rule 5(7) to (22) of the rules of this
court.
5.6 Rather
than quote rule 5(7) to (22) extensively, I consider it convenient
that a copy of the provisions of that rule should be
annexed to this
judgement. They are so annexed marked “A”.
5.7 Sub
rule (7) places an obligation on the appellant, after he or she has
noted his/her appeal, to “serve a copy of the record
of the
proceedings in the Labour Court“ on each respondent and to file
four copies thereof “with the registrar”. Rule 5A says
“noting
an appeal” ( to this court against a judgement of the industrial
court) ”the provisions of the rule 5(7) to (22) apply”.
5.8 When
rule 5A(4) says this, to my mind, it says to the appellant : after
noting your appeal comply with the requirements of rule
5(7) to (22)
in order to process your appeal. If I am correct in saying this, as I
think I must be, then there are a number of provisions
in rule 597)
to (22) which require the appellant in appeals to this court against
judgements of the industrial court to comply with
requirements that
it would be impossible to comply with.
5.9 The
provisions of rule 5(7) must be the first to be dealt with. There the
appellant is required to serve a copy of record “of
the proceedings
in the Labour Court. The only record which the appellant in such a
case is one of proceedings in the industrial
court (and not in the
Labour Court) as required by rule 5(7) because the proceedings he
seeks to appeal against took place in the
industrial court and not
the Labour Court.
5.10 Next
comes the provisions of rule 5(8). Rule 5(8)requires that the record
must be “delivered within 60 days of the date of
the order granting
leave to appeal unless the appeal is noted after a successful
position for leave to appeal in which case, the
record must be
delivered within the period fixed by the court under rule 4(a).
The
first difficulty I have with rule 5(8) is that, by virtue of rule
5A(4), the period within which an appellant against a judgement
of
the industrial court is required to deliver the record is
calculated from a non-existent date, namely,
“ the date of the
order granting leave to appeal.”
There is no such date in
respect of appeals against judgements of the industrial court. This
is so because parties have an automatic
right of appeal to this
court against judgements of the industrial court.
Date
of judgment: 19 October 1999