Queenstown Fuel Distributors CC v J Labuschagne and others (PA3/99) [1999] ZALAC 24 (3 November 1999)

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[1999] ZALAC 24
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Queenstown Fuel Distributors CC v J Labuschagne and others (PA3/99) [1999] ZALAC 24; [2000] 1 BLLR 45 (LAC); (2000) 21 ILJ 166 (LAC) (3 November 1999)

IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA
HELD AT PORT ELIZABETH
CASE
NO.: PA 3/99
In the matter between
QUEENSTOWN FUEL DISTRIBUTORS
CC
Applicant
and
J LABUSCHAGNE N.O.
1
st
Respondent
THE CCMA
2
nd
Respondent
FAWU & OTHERS
3
rd
Respondent
3
JUDGMENT
3
CONRADIE JA
[1] The point before us is a crisp
one. It is whether the labour court is empowered to hear an
application for the review of a decision
of a commissioner of the
Commission for Conciliation Mediation and Arbitration (‘the CCMA’)
where there has been non-compliance
with the provisions of section
145 of the Labour Relations Act 66 of 1995 (‘the Act’). Landman J
in the court
a quo
found that the court had no jurisdiction to
condone the late delivery of an application for review in terms of s
145. The decision
has been reported as
Queenstown Fuel
Distributors CC v Labuschagne NO & others
[1999] 3 BLLR 268
(LC).
The relevant part of s 145 reads as
follows –
‘
(1) Any party to a dispute who
alleges a defect in any arbitration proceedings under the auspices of
the Commission may apply to the
Labour Court for an order setting
aside the arbitration award –
within six weeks of the date that the
award was served on the applicant, unless the alleged defect involves
corruption; or
if the alleged defect involves
corruption, within six weeks of the date that the applicant discovers
the corruption.
(2) A defect referred to in
subsection (1), means –
that the commissioner –
(i) committed misconduct in relation
to the duties of the commissioner as an arbitrator;
(ii) committed a gross irregularity in
the conduct of the arbitration proceedings; or
exceeded the commissioner’s powers;
or
(b) that an award has been improperly
obtained.’
[3] On 24 August 1998 the appellant by
telefax sent a copy of its application in terms of rule 7 of the
rules of the labour court
to the respondents. It is not clear when
the application was filed with the registrar. I shall assume that it
was filed on the same
day. I should say something about the
terminology. Rule 7(2) requires delivery of an application. The word
‘delivery’ is not
defined. In the high court rules ‘delivery’
in this context means service on the parties and filing with the
registrar. It seems
sensible to suppose that ‘delivery’ in rule 7
means the same. On this assumption, and provided that delivery of the
application
is to be equated with ‘apply to the labour court’
(which is the expression used in section 145(1)),the application was
one week
late. I agree with Landman J that ‘apply’ in section 145
of the Act is meant to refer to the delivery of an application. It
cannot
reasonably be interpreted to mean that the application must
within six weeks be brought before the court for a hearing. For that
there are too many logistical hurdles.
[4] There are cases in the labour
court in which it was accepted, without debate, that the court had
power to condone non-compliance
with the provisions of s 145(1)(a) of
the Act –
Mthembu & Mahomed Attorneys v CCMA & others
[1998] 2 BLLR 150
(LC);
Mlaba v Masonite (Africa) Ltd &
others
[1998] 3 BLLR 291
(LC);
Metcash Trading Ltd t/a Metro
Cash & Carry v Fobb & others
[1998] 11 BLLR 1136
(LC);
Keerom Casa Hotel v Heinrich & another
[1999] 1 BLLR 27
(LC). Shortly afterwards the labour appeal court in
Librapac CC v
Fedcraw & others
(1999) 20 ILJ 1510 (LAC) declined to express
a view on whether condonation of a failure to adhere to the time
period laid down in
s 145 was competent. Mlambo J had earlier
stressed the important legislative objective of finality in dispute
resolution (
Pep Stores (Pty) Ltd v Laka & others
(1998) 19
ILJ 1532 (LC) at 1450 F) the point was then dealt with in quick
succession by Jajbhay AJ and Gon AJ. The former decided
that
non-compliance with s 145 could not be condoned. The latter decided
that it could be. Both these judgments were delivered in
May 1999
(see:
National Union of Mineworkers v CCMA & others
case
no.: J 1918/98 delivered 7.5.99 unreported and
Dimbaza Foundries
Ltd v CCMA & Others
[1999] 8 BLLR 779
(LC)). During the next
month Marcus AJ contributed to the debate a judgment in which he
found that condonation was competent. (
Kruger & Another v
Macgregor NO & Another
case no.: J123/99 judgment delivered
on 18 June 1999 – unreported.)
[5] Without having expressly or
implicitly been given the power to do so, a court cannot forgive
non-compliance with a statutory enactment.
There has been a
suggestion in some of the reported decisions
(Mabombo v Shoprite
Checkers Holdings (Pty) Ltd & others
[1998] 12 BLLR 1307
(LC)
and
Mkhize v First National Bank & another
[1998] 11 BLLR
1141
(LC)) that an express power to condone non- compliance with s
145 of the Act is conferred on the labour court by s 158(1)(f). This
paragraph provides that the labour court may ‘subject to the
provisions of this Act, condone the late filing of any document with,
or the late referral of any dispute to, the court.’ I am inclined
to think that this provision is meant to accomplish no more than
give
the labour court (statutory) authority for what its rules require it
to do.
[6] Anyway, I do not consider that I
could, without doing violence to the language, interpret the phrase
‘the late filing of a document’
to mean the late delivery of an
application commencing litigation. For although an application would
have to be in documentary form
I doubt whether it would, in the
context, have been described by the legislature simply as a
‘document’. It seems to me, also,
that the legislature would not
have characterised a disagreement about an award simply as a
‘dispute’. The topic of a review
is not the underlying dispute
but the quality of a commissioner's decision. The challenge to an
award by way of review is thus not
a ‘dispute’ as contemplated.
The way in which the word ‘dispute’ is used in the Act leaves no
room for thinking that it is
in section 158(1)(f) intended to mean
anything other than a disagreement which comes from the shop floor.
The use of the term throughout
the Act confirms this. It is a term of
art defined in s 212 of the Act to include an ‘alleged dispute’.
It means a dispute about
a matter of mutual interest (s 134). I
should also not overlook the import of the phrase ‘subject to the
provisions of this Act.’
If the legislature had intended to grant a
blanket power to condone, it would not have made the power subject to
other provisions
of the Act. I accordingly do not consider that the
Act confers express authority on the labour court to forgive
non-compliance with
the provisions of s 145.
[7] It was suggested in
Kruger &
Another v Macgregor & Another (supra)
that the Constitution
of the Republic of South Africa 108 of 1996 (‘the Constitution’)
requires a court to interpret section
145 in a way which would make
the time limit subject to discretionary enforcement by the court. One
of the difficulties which I experience
with this approach is that the
decision of the constitutional court in
Mohlomi v Minister of
Defence
[1996] ZACC 20
;
1997 (1) SA 124
(CC) makes it clear that barring
provisions are not necessarily constitutionally objectionable. At
paragraphs [11] and [12] of the
report (pp. 129 – 130) Didcott J
remarks –
‘
[11] Rules that limit the time
during which litigation may be launched are common in our legal
system as well as many others. Inordinate
delays in litigating damage
the interests of justice. They protract the disputes over the rights
and obligations sought to be enforced,
prolonging the uncertainty of
all concerned about their affairs. Nor in the end is it always
possible to adjudicate satisfactorily
on cases that have gone stale.
By then witnesses may no longer be available to testify. The memories
of ones whose testimony can
still be obtained may have faded and
become unreliable. Documentary evidence may have disappeared. Such
rules prevent procrastination
and those harmful consequences of it.
They thus serve a purpose to which no exception in principle can
cogently be taken.
[12] It does not follow, however, that
all limitations which achieve a result so laudable are
constitutionally sound for that reason.
Each must nevertheless be
scrutinised to see whether its own particular range and terms are
compatible with the right which s 22
bestows on everyone to have his
or her justiciable disputes settled by a court of law. The right is
denied altogether, of course,
whenever an action gets barred
eventually because it was not instituted within the time allowed. But
the prospect of such an outcome
is inherent in every case, no matter
how generous or meagre the allowance may have been there, and it does
not
per se
dispose of the point, as I view that at any rate.
What counts rather, I believe, is the sufficiency or insufficiency,
the adequacy
or inadequacy, of the room which the limitation leaves
open in the beginning of the exercise of the right.’
[8] It was not suggested by the
appellant that the period of six weeks was so short that it infringed
his constitutional right to
a fair hearing. It does not, to me, seem
to be so short. One must remember that the appellant has already had
one hearing. The review
application was not an entirely new step. It
followed directly on the earlier litigation. For this reason it is
not comparable to
the six months’ period for instituting action for
the first time which was found to be too short in
Mohlomi
’s
case (supra).
[9] If, then, an absolute time bar is
not objectionable the next enquiry is whether anything in the
Constitution suggests that, in
the case of s 145 of the Act, the
legislature did not, despite what it may have said or omitted to say,
intend the time bar to be
immune from adjustment by the court. There
is, in s 3 of the Act, the injunction that it must be interpreted in
compliance with the
Constitution. That, and an interpretation to give
effect to its primary objects as well as to this country’s
international law
obligations would have been required as a matter of
course even if nothing had been said about it.
[10] Section 23(1) of the Constitution
provides that ‘everyone has the right to fair labour practices.’
But the right to review
an arbitration award, and the obligation to
do so within a fixed time, cannot aptly be described as a ’labour
practice’. Section
34 of the Constitution provides that ‘everyone
has the right to have any dispute that can be resolved by the
application of law
decided in a fair public hearing before a court
or, where appropriate, another independent and impartial tribunal or
forum.’ It
is a valuable provision, principally because it
enshrines the right to a fair hearing as a fundamental value. But for
guidance on
what a fair hearing in a particular case might be, I
think that it is necessary to embark upon an investigation of the
common law.
It is only in those rare cases where the common law is
silent or where its provisions conflict with the ‘spirit, purport
and object
of the Bill of Rights’ that it would be necessary to
place reliance on constitutional principles. In the present enquiry I
think
that the common law guidelines for compliance with time limits
which have been developed and refined by jurists over many
generations
offer a surer passage to a correct answer.
[11] There are cases, many of which
are collected in
Moluele v Deschatelets
1950 (2) SA 670
(T),
dealing with the power of a court, in the case of an appeal to it, to
grant relief from a time constraint even though not expressly
authorised to do so by the empowering statute. In the Transvaal,
where the leading case is
Jackson v Smith
1928 TPD 580
, the
court refused to condone non-compliance with the statutorily laid
down time for noting an appeal. In the Cape, where an identical
statutory provision was in force, the courts granted relief. In
South
African Shipping Co Ltd v Liquidators Promoters Ltd
1918 CPD 606
,
Searle J considered himself (at 614) ‘bound to follow our decisions
given over a long period of years

that the court has still an inherent power, though it be a matter of
grace to suffer an appeal to proceed if it come to the conclusion
that such should be done in the interests of justice.’ Van Zyl J
echoed these sentiments in
Bredell v Pienaar & Others
1922
CPD 42
at 426 – 427 in saying that ‘there may be cases of very
great hardship in such matters if it were held that this court could
in no circumstances give leave to note an appeal

and the view that I take is that, unless it is quite clear that this
should not be done, the court should not give a decision which
would
deprive it of that power.’
[12] In
R v Whittle
1914 CPD
774
the court held that it had the power to condone non-compliance
with a statutorily determined period for noting a criminal appeal,
Hopley J saying: ‘The legislature must have had knowledge of the
circumstances of the country and the course and methods by which
its
courts do their work; and it is not to be supposed that they meant in
certain circumstances to make it impossible for a convicted
person to
be heard in appeals. So that, however strongly they have worded the
Act in question it would be wronging them to say that
they meant to
take away the inherent right in the courts of law to look into the
special circumstances of such cases and to proceed
in such manner as
is best conducive to the interests of justice’
[13] In a case of condonation of
non-compliance with the rules of court, the power, if not expressly
given, may derive from the court’s
inherent reservoir of powers to
regulate its own procedures in the interests of justice. (
Universal
City Studios v Network Video
[1986] ZASCA 3
;
1986 2 SA 734
(A) at 754 G – I)
In
Leibowits & Others v Swartz & Others
1974 2 SA 661
(T) it was said that a court has the inherent power to relax its own
rules where substantial injustice would otherwise result. A
court’s
own rules are, as it were, an internal affair. It does not follow
that a court also has the power to excuse non-compliance
with an Act
of parliament. It will, however, as the cases quoted above show, be
reluctant to conclude that parliament intended depriving
it of its
power to regulate the manner in which a litigant gains access to the
court. It is in this spirit that I think I should
approach the
question of the interpretation of s 145. I find succour in the
general precept of our common law that provisions hampering
access to
the courts are to be strictly construed (See:
Avex Air (Pty) Ltd v
Borough of Vryheid
1973 1 SA 617
(AD) at 622 A.)
[14] It is quite common for courts to
interpret a statute in such a way as to conclude that they have
impliedly been given the power
to excuse non-compliance with its
terms. They express this conclusion by saying that the rule under
consideration is directory and
not peremptory. Whether a rule is in a
given case directory or peremptory is determined by having regard to
the language, scope and
object of an enactment. (
Charlestown Town
Board & Another v Vilakazi
1951 3 SA 361
(A))
[15] In the case of peremptory
prescriptions a mild form of relaxation is sometimes permissible. The
courts have said that there are
degrees of compliance with statutory
precepts. Compliance with the letter is sometimes not required, so
that even peremptory provisions
need only be ‘substantially’
complied with. The difference is that with directory provisions
non-compliance may be excused whereas
with peremptory provisions only
less than perfect compliance may be overlooked. The most celebrated
case on this topic is
Maharaj & others v Rampersad
1964
(4) SA 638
(A) at 646 C – E. I do not for a moment believe that I
am here dealing with substantial compliance of a time barring
provision.
Being late by a week is not substantial compliance with
section 145(1).
[16] As I see it, the only route for
arriving at a conclusion that non-compliance with the time provision
of section 145(1)(a) may
be condoned, is to regard it as directory. A
rule which is directory is not meant to be rigidly applied. A court
which characterises
a rule as directory is, in effect, saying that it
has discretionary power to condone non-compliance with it.
[17] With regard specifically to time
provisions, Schreiner JA had this to say in
Charlestown Town Board
& Another v Vilakazi
(supra at 370 C – E):
‘
Although provisions as to time are
sometimes dealt with as if they formed a special category in this
connection, it seems clear that
such enactments too must be dealt
with in the light of its own language, scope and object and the
consequences in relation to justice
and convenience of adopting one
view rather than the other.’
The question, then, I should ask
myself is this: what are the consequences in relation to justice and
convenience of deciding that
the time provision in section 145(1)(a)
is directory rather than peremptory? For that I need to analyse the
general scheme of the
Act.
[18] The Act was introduced to,
inter
alia
, fundamentally reform earlier dispute resolution procedures.
These were cumbersome and expensive. In theory an individual
dismissal
could go through a disciplinary enquiry, an internal appeal
hearing, a full rehearing before the industrial court, an appeal to
the
labour appeal court and, finally, an appeal to the appellate
division of the supreme court. The idea of the labour law reforms was
to take most of the (less important) individual dismissals out of the
courts altogether and to entrust their resolution to quasi-judicial
bodies which could deal with them swiftly and relatively informally.
The more socially disruptive – and potentially explosive –
dismissals, such as dismissals arising from strike action or for
operational reasons, were left to the labour court to resolve. So
were individual dismissals considered to be automatically unfair (s
187). They involve sensitive issues like discrimination and
victimization.
Not only were the less contentious dismissals
relegated to less important
fora
but the right to have the
decisions of those
fora
adjusted by a superior tribunal was
severely curtailed. Testing could now only be done on review and then
only on certain fairly
narrow grounds.
[19] In contrast, the right to have a
decision of the labour court tested by a higher tribunal was in
section 174 and 175 of the Act
made much wider. A traditional right
of appeal was vouchsafed, circumscribed only by the requirement of
leave to appeal, which might
be obtained either from the court
a
quo
or from the court of appeal. The notice of appeal has, of
course, to be delivered within ten days of the granting of leave to
appeal
but a failure to adhere to the time period may be condoned.
Express provision has been made therefor. But even here the earlier
right
to ascend to a further appeal tier – the supreme court of
appeal - has been abolished.
[20] The pattern is that of greater
indulgence in regard to matters of greater social and economic
importance, and lesser indulgence
where the aim of the dispute
resolution procedures is to ensure that matters are dealt with
swiftly and determined once and for all,
subject to a review
procedure designed to ensure an acceptable level of administrative
justice. If the full amplitude of justice
had been the quest, parties
to any dismissal dispute before a commissioner of the CCMA would, as
a matter of course, have been entitled
to legal representation. As
it is, parties may only be legally represented in dismissals for
misconduct or incapacity in exceptional
cases and with leave of the
commissioner (s 140). What is envisaged, in short, is quite a summary
procedure with no right of appeal.
The legislature evidently
considered that our country lacked the resources to permit individual
dismissal disputes to go on endlessly.
This is an argument favouring
a premptory intention
[21] There is another argument for
peremptoriness. Section 145 of the Act is plainly modeled on
s 33
of
the
Arbitration Act 42 of 1965
. The wording of
s 33
is different but
in conception it is the same as s 145 of the Act. The ordinary time
limit for bringing a review in each case is
six weeks unless there is
corruption in which case a review may, under each of the Acts, be
brought within six weeks of the discovery
of the corruption. The
major difference between the procedures envisaged by the two Acts is
that
s 38
of the
Arbitration Act confers
a general power on the
court to ‘on good cause shown, extend any period of time fixed by
or under this Act, whether such period
has expired or not.' S 146 of
the Act provides that the
Arbitration Act is
not to apply to any
arbitration conducted by a commissioner. It is surprising that the
power in
s 38
of the
Arbitration Act was
not conferred on the labour
court, particularly since arbitrations in terms of the Act are not
voluntary.
[22] On the other hand it is not as
though the six week period is inviolable. Where something as
offensive as corruption has occurred,
the permissible review period
can be much longer. If the alleged defect in the proceedings involves
corruption, an aggrieved disputant
has six weeks from the discovery
of the corruption to bring review proceedings. This means that a
corrupt award may remain reviewable
for many years. The legislature
is plainly prepared to tolerate a long delay in the final
adjudication of a labour dispute where
public policy justifies it.
[23] There is another side to the
coin. Although by far the greater part of the CCMA’s time is taken
up by individual dismissal
disputes it is empowered to, and does,
deal with other disputes as well. It is not necessary to recount them
all. They encompass
disputes about matters of mutual interest to
employers and employees. They may be disputes of the utmost gravity,
the correct resolution
of which has profound socio-economic
implications. In the case of such disputes, at any rate, it would
seem reasonable to assume
that the legislature did not wish any
non-compliance with the time limit in s 145(1)(a), no matter how
trivial and no matter how
free from blame (and no matter how gross
the defect in the arbitration proceedings) to be fatal to an
application for review.
[24] I have not found the balancing of
all these interests and conflicting
indiciae
an easy task.
However, ultimately, the consideration that a court should endeavour
to interpret legislation in such a way as to avoid
relinquishing all
control over the manner and timing of access to it weighs heavily
with me. I would, respectfully adopting the words
of Schreiner JA in
Charlestown Town Board Another v Vilakazi
(supra at 370 C –
E), venture to conclude that considerations of justice and
convenience dictate the acceptance of the proposition
that the
legislature intended the time limit for bringing review proceedings
in s 145(1)(a) to be directory. In principle, therefore,
it is
possible to condone non-compliance with the time limit. It follows,
however, from what I have said above, that condonation
in the case of
disputes over individual dismissals will not readily be granted. The
excuse for non-compliance would have to be compelling,
the case for
attacking a defect in the proceedings would have to be cogent and the
defect would have to be of a kind which would
result in a miscarriage
of justice if it were allowed to stand.
[25] By adopting a policy of strict
scrutiny of condonation applications in individual dismissal cases I
think that the labour court
would give effect to the intention of the
legislature to swiftly resolve individual dismissal disputes by means
of a restricted procedure,
and to the desirable goal of making a
successful contender, after the lapse of six weeks, feel secure in
his award.
[26] Since the respondents were
unrepresented at the appeal hearing, no question of costs arises. The
following order issues:
The appeal succeeds. The judgment of
the court
a quo
is set aside.
The matter is remitted to the court
a
quo
to decide whether or not the appellant’s failure to bring
its application for review within six weeks should be condoned.
______________
CONRADIE
JA
I agree
______________
NICHOLSON
JA
I agree
_______________
MOGOENG
AJA
Date of Hearing: 21 September 1999
Date of Judgment: 3 November 1999
Attorney for the
Appellant: Wheeldon Pushmore & Cole
Counsel for the Appellant: Adv. J G
Grogan
3
16
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