Kem-Lin Fashions v Brunton and Another (DA19/2000) [2001] ZALAC 23; 2002 (6) SA 497 (LAC) (29 June 2001)

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[2001] ZALAC 23
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Kem-Lin Fashions v Brunton and Another (DA19/2000) [2001] ZALAC 23; 2002 (6) SA 497 (LAC); [2002] 7 BLLR 597 (LAC); (2002) 23 ILJ 882 (LAC) (29 June 2001)

IN
THE LABOUR APPEAL COURT OF SOUTH - AFRICA
HELD
AT JOHANNESBURG
CASE
NO: DA19/2000
In
the matter between:-
KEM
- LIN FASHIONS
Appellant
v
C
BRUNTON
First
respondent
BARGAINING
COUNCIL FOR THE
CLOTHING
INDUSTRY (NATAL)
Second respondent
_________________________________________________________
JUDGMENT
_________________________________________________________
JOFFE,
J
The
applicant brought an application in the Labour Court. It was
dismissed. It then appealed to this Court. The appeal was dismissed.
The judgment of this Court in that appeal is reported. See (2001) 22
ILJ 109 (LAC). The applicant now seeks a certificate in terms
of
Rule 18 of the Constitutional Court on a constitutional matter which
it contends arises in the appeal. What falls first to be
decided is
whether that rule is applicable.
Rule
18(1) reads as follows:
“
The
procedure set out in this rule shall be followed in an
application
for leave to appeal directly to the Constitutional
Court
where a decision on a constitutional matter, other than
an
order of constitutional invalidity under section 172(2)(a)
of
the Constitution, has been given by any court other than the
Supreme Court
of Appeal irrespective of whether the Chief Justice has refused
leave or special leave to appeal.”
The
rule clearly contemplates the engagement of the Constitutional Court
prior to the appeal procedure through the different courts
being
completed. This is apparent from the words “
leave to appeal directly to the Constitutional Court”
and the reference to a decision
“
by
any court other than the Supreme Court of Appeal.
”
What is therefore envisaged by Rule 18(1) is a hiatus in the normal
sequence of appeals. An appellant may seek leave to appeal to
the
Constitutional Court without exhausting his appeal remedies in regard
to the issues referred to in Rule 18(1). In
MEC
for Development Planning and Local Government, Gauteng v Democratic
Parties and others 1998(7) BCLR 855(CC)
Chaskalson
P stated:
“
Rule 18 of the existing Constitutional Court
Rules makes provision for appeals to the Constitutional Court from
decisions of the High
Court.”
In
footnote 16 of the judgment at 862 Chaskalson P made the following
note about Rule 18:
“These
rules deal with appeals from decisions of provincial or local
divisions of the Supreme Court but in terms of item 16(5)(c)
of
schedule 6 of the 1996 Constitution, this must now be read as
referring to appeals from the High Court.”
Again
at 869 F - G (par’5) Chaskalson P repeated this when he said:
“
Rule
18 of the Constitutional Court Rule deals with appeals from the High
Court to this Court.”
In
the present matter the applicant has exhausted its remedies of
appeal. Rule18 accordingly does not appear to fit.
Of
course this would not be the position if an appeal lay to another
court, other than to the Constitutional Court, from a judgment
of
the Labour Appeal Court. Section 168 of the Constitution ( Act 108
of 1996 ) provides that the Supreme Court of Appeal is the
highest
court of appeal except in constitutional matters and may decide
appeals in any matter. This would seem to indicate that
there is an
appeal from this Court to the Supreme Court of Appeal.
Such
a conclusion would be contrary to the provisions of
s 167(3)
of the
Labour Relations Act 66 of 1995
. The section provides:
“
The Labour
Appeal Court is a superior court that has authority, inherent powers
and standing, in relation to matters under its jurisdiction,
equal to
that which the Supreme Court of Appeal has in relation to matters
under its jurisdiction.”
On
its wording an appeal cannot lie from this Court to the Supreme
Court of Appeal. It is inconceivable that a judgment of a court
of
equal authority can be taken on appeal to a court of equal authority
and standing.
The
constitutionality of
s 167(3)
of the
Labour Relations Act was
not
argued before us. Accordingly it would not be appropriate for this
Court to consider it
mero motu.
The
appellant’s difficulty in construing
Rule 18(1)
can be dealt with
by construing the rule in such a manner that it would not apply to
applications after an appeal had been heard
by the Labour Appeal
Court just as it does not apply to appeals from the Supreme Court of
Appeal.
In
the result the application falls to be dismissed with costs.
M
M JOFFE
ACTING
JUDGE OF APPEAL
R
M M ZONDO
JUDGE
PRESIDENT
M
T R MOGOENG
JUDGE
OF APPEAL
Date of Judgment: 29 June 2001