Western Cape Workers Association v Halgang Properties CC (CA8/01) [2003] ZALAC 9 (16 July 2003)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Labour Appeal Court
SAFLII
>>
Databases
>>
South Africa: Labour Appeal Court
>>
2003
>>
[2003] ZALAC 9
|

|

Western Cape Workers Association v Halgang Properties CC (CA8/01) [2003] ZALAC 9 (16 July 2003)

IN THE LABOUR
APPEAL COURT OF SOUTH AFRICA
(HELD
IN CAPE TOWN)
Case
No.:
CA 8/01
In
the matter between:
WESTERN
CAPE WORKERS ASSOCIATION
Applicant
and
HALGANG
PROPERTIES CC
Respondent
________________________________________________________________________
JUDGMENT
: 16 JULY 2003
________________________________________________________________________
COMRIE
AJA :
[1.]
This
purports to be an application for leave to appeal directly to the
Constitutional Court from the judgment of this Court (the LAC)
which
was handed down on 8 August 2002. There is also an opposed
application for condonation. In this judgment I shall refer to
the
applicant as the union, to the respondent as Halgang, and to the
purchaser of the business as Wembley.
[2.]
In
a sense the application before us is misconceived, since it is the
prerogative of the Constitutional Court to grant or refuse leave
to
appeal. Procedurally the matter is governed by rule 18 of that
Court’s rules.
Nehawu
v. University of Cape Town and Others
2003 (2) BCLR 154
(CC). Rule 18 (2) – (6) requires the LAC to
furnish a certificate with regard to certain questions. Such
certificate (which takes
the form of a judgment) is then included
with the prospective appellant’s application to the Constitutional
Court for leave to
appeal. See rule 18 (8)(c). I propose to treat
the application now before us as an application for a certificate in
terms of rule
18. I shall first deal with the certificate, then with
condonation, and finally with costs.
THE
CERTIFICATE
[3.]
As
a first step it is necessary to identify the constitutional matter or
matters which are raised by the case. For this purpose a
thumbnail
sketch of our judgment may prove helpful. We held that with effect
from 29 September 1999 there was a transfer of Halgang’s
mini-mall
business to Wembley as a going concern in terms of s. 197 of the
Labour Relations Act 66 of 1995 (para. 43 of the typed
judgment).
Halgang’s two employees were dismissed by Halgang on 20 September
1999 in circumstances which are canvassed in the
judgment. It
followed that unless the two employees were fairly dismissed on 20
September, they would have become employees of Wembley
on 29
September. The text of the judgment (para. 44) says “unfairly
dismissed”, but in context it clearly should read “fairly”.
We
assumed, without deciding, that the dismissals were unfair. We held,
however, that having regard to
s. 193
(2)(c) of the
Labour Relations
Act it
was inappropriate for the Labour Court to have ordered
reinstatement against Halgang (and only reinstatement was claimed).
We reached
that conclusion on the basis that Halgang had disposed of
the mini-mall business, and had no other known business, and that it
was
therefore not reasonably practicable for Halgang to reinstate or
re-employ the two employees. See para.s 44 and 45 of the judgment.

Wembley was not a party to the proceedings. We rejected the
“springboard” argument urged by the union, namely that a
reinstatement
order against Halgang could be used as a springboard in
subsequent proceedings against Wembley. The basis for the argument
was the
judgment of the LAC in the
Success
Panelbeaters
case.
That judgment was based on waiver, and we distinguished it on the
ground that in our view there was no waiver of joinder by
Wembley in
the present matter (para.s 45 to 47 of the judgment). Hence the
appeal succeeded.
[4.]
I
should perhaps interpose two comments. First, the following sentence
appears four lines from the bottom of p. 2 of the union’s
application: “That there was a transfer of business was never in
dispute”. According to my recollection that is correct on
appeal
but incorrect at first instance (see e.g. para. 46 of the judgment).
Second, our judgment was given before the decision of
the
Constitutional Court in
Nehawu
v. UCT, supra
.
Upon reconsideration, our conclusion that there was a transfer to
Wembley as a going concern seems to me to accord with the
Constitutional
Court judgment; so too our conclusion that but for
the dismissals (if fair) the two employees would have become
employees of Wembley.
[5.]
In
Nehawu v. UCT,
supra
, at para
14, the Constitutional Court held: “Therefore the proper
interpretation and application of the
Labour Relations Act will
raise
a constitutional issue”. Further, at para. 31 the Court said:
“This Court will therefore be slow to hear appeals from
the LAC
unless they raise important issues of principle”. See too the
decision of the Constitutional Court in
Numsa
and Others v. Bader Bop (Pty) Ltd and Another
[2003] 2 BCLR 182
(CC)
at para. 16. We
have been referred to several provisions of the Constitution and of
the
Labour Relations Act (both
before and after amendment). I do not
propose to recite them. It appears to me that the principal matter
of constitutional import
raised by the present case is whether, in
refusing reinstatement, we correctly interpreted and applied
s. 193
(2)(c) of the
Labour Relations Act. That
is the central issue,
although I naturally accept that other provisions of the statute, and
of the Constitution, will come into play
in the process of
interpretation. A second possible issue, connected to the first,
may be whether the Labour Court or the LAC should
have granted a
reinstatement order against Halgang for the potential purpose of
holding Wembley liable where Wembley was neither
joined nor waived
the right to joinder. A third possible issue may arise from the
provisions of
s. 189
of the
Labour Relations Act in
relation to the
fairness or otherwise of the dismissals (a question which we found it
unnecessary to decide).
[6.]
I
turn to sub-rule (6)(a). Are all or any of the above issues matters
of substance on which a ruling by the Constitutional Court
is
desirable? On the unusual facts of the present case, I think not.
If an employee or a union seeks relief which will be binding
on the
purchaser (or other acquirer) of a business or part thereof, then as
a matter of ordinary fairness (and of standard procedure)
one would
expect the purchaser to be joined as a party. That was the procedure
adopted in
Nehawu
v. UCT
,
supra
,
and one of the contractors (Supercare Cleaning) was represented all
the way to the Constitutional Court. Aside from joinder, it
can be
argued that reinstatement against Halgang would have entitled the
employees to claim payment of monies (if any) owing to
them up to 29
September, i.e. for 9 or 10 days, but without binding Wembley from
the 29
th
onwards. I hardly think that that would raise a matter of
constitutional substance. In my opinion the certificate in terms of
sub-rule
(6) (a) (i) should be in the negative.
[7.]
With
regard to sub-rule (6) (a) (ii) the evidence appears to me to be
sufficient within the contemplation of the sub-rule. We asked
Mr.
Oosthuizen, for Halgang, about this and his response was that the
evidence appeared to him to be complete. My certificate would
accordingly be a positive one.
[8.]
As
for sub-rule (6) (a) (iii) I am of opinion that the union does not
enjoy reasonable prospects of success on appeal, and that such
prospects are meagre . I would accordingly certify in the negative.
[9.]
Sub-rule
(6) (b) requires us to indicate whether in our opinion it is in the
interests of justice for the appeal to be brought directly
to the
Constitutional Court. Focussing on the word “directly”, and
assuming that there will be an appeal, then considerations
of
expedition and costs indicate that an appeal to the Constitutional
Court would be preferable to an appeal to, or
via
,
the Supreme Court of Appeal. That is unless the Constitutional Court
particularly wishes to have the views of the Supreme Court
of Appeal
on joinder and waiver thereof, which I regard as unlikely in the
present instance. But “directly” is qualified by
the phrase “in
the interests of justice”, the meaning of which has been developed
by the Constitutional Court. See
Numsa
v. Bader Bop, supra,
at
para.s 16
ff
and the cases cited in at footnote 12 of the judgment of
O’Regan
J
. It appears
that while each application for leave to appeal must be decided on
its own facts and circumstances, a large number of
factors may be
taken into account. They include the importance of the
constitutional issue(s), who (beyond the immediate parties)
might be
affected, and the prospects of success. No single factor is
necessarily dispositive, although prospects of success are
usually
required. I have indicated earlier that in my view the
constitutional issues are not of importance, in the context of this
case, and that the union’s prospects of success are meagre. It
also seems to me that the only people affected are the union, the
two
employees, Halgang and Wembley (which has not been joined). I
conclude therefore that it is not in the interests of justice
that
the appeal be brought directly to the Constitutional Court.
CONDONATION
[10.]
The
union is some two months out of time. This application should have
been brought within 15 Court days of 8 August 2002, that is
by about
the end of August. In fact it was only lodged with the registrar on
1 November 2002 (according to the date stamp). The
explanation
proffered by Mr. August, the official who appeared for the union, is
overwork and lack of legal training. The delay
being substantial,
the excuse weak, and the prospects of success meagre, it might be
thought that condonation should not readily
be granted.
[11.]
We
must first decide, however, whether this Court (the LAC) has the
power to grant or refuse condonation of a late application in
terms
of Constitutional Court
rule 18.
Such power is not expressly
conferred on the LAC or the High Court by the rule. On the contrary
the power is expressly conferred
on the Constitutional Court by its
rule 31
, which empowers that Court, on sufficient cause shown, to
excuse non-compliance with any of the rules. None the less Erasmus
et al
:
Superior Court
Practice
(ad
rules
19
and
31
) opine that the High Court may grant or refuse condonation.
(I shall assume that the LAC’s powers under
s. 174
(b)
in
fine
of the
Labour
Relations Act match
the High Court’s inherent powers). The learned
authors base their view on
Mistry
v. Interim National Medical and Dental Council of South Africa
[1998] ZACC 10
;
1998
(4) SA 1127
(CC);
1998 (7) BCLR 880
(CC) and
Minister
of Home Affairs and Others v. Dawood, v. Shalabi, v. Thomas
2000 (1) SA 1074
(C);
2000 (3) BCLR 331
(C). In the former case
Chaskalson P
.
(as he then was) reacted to a comment by the Judge
a
quo
that there was
uncertainty as to how applications under
rule 18
should be dealt
with, and whether the certificate should be accompanied by a
judgment. It was in this context that
Chaskalson
P.
observed that
there were similarities between an application for a certificate and
an application for leave to appeal, and said:
“
It is
appropriate, therefore, that an application for a certificate in
terms of
Rule 18
should be dealt with in the same manner as a
conventional application for leave to appeal. In both instances a
judgment on the application
is required.”
[12.]
In
the
Minister of
Home Affairs case, supra,
Van
Heerden AJ
(as she
then was) concluded that the High Court enjoyed the power to grant or
refuse condonation. Her reasoning (at pp 1081 - 2
of the SALR
report) was based on the inherent power of the High Court to regulate
its own procedure, on the rules of the High Court,
and on the remarks
of
Chaskalson P
referred to above. I respectfully disagree. First, it will be noted
that the learned President was not dealing specifically with
the
question of condonation. Nor, secondly, was he dealing with the
powers of the High Court in other than general terms; he referred
to
the “manner”. Third, he did not lay down a rule that the powers
of the [High] Court were identical in both types of application.

Plainly the opposite is true. Fourth, in an application under
rule
18
the High Court or LAC grants no relief. It furnishes a
certificate (positive, negative or mixed as the case must be). That
is the
clear intent of the rule. The underlying purpose must be that
the Constitutional Court welcomes the views of the High Court or LAC,
and that such views may assist the Constitutional Court in deciding
whether to grant or refuse leave to appeal. If condonation were
to
be refused, and a certificate consequently denied, then at least in
theory an applicant could not proceed to the next stage (see
rule
18(7)).
I say in theory because, as I have already pointed out, the
Constitutional Court itself is possessed under
rule 31
of the
undoubted power to condone non-compliance “with
any
of the aforegoing rules” (emphasis supplied). To decline to
furnish a certificate on the ground that the late application does
not merit condonation would therefore undermine what seems to me to
be the purpose of
rule 18
(2) – (6). Finally,
rule 18
(6) (a)
provides that the Court
a
quo
“shall
certify” and
rule 18
(6) (b) provides that: “The certificate
shall also indicate”. The word “shall” is
prima
facie
peremptory.
It certainly lends no weight to the view that the High Court or LAC
may decline to certify consequent upon refusing
condonation.
[13.]
My
conclusion accordingly is that this Court (the LAC) has no power to
grant or refuse condonation of lateness when determining an
application for a certificate in terms of Constitutional Court
rule
18.
Such condonation is a matter for that Court to determine under
its
rule 31.
It follows that no order should be made in the present
case on the prayer for condonation.
COSTS
[14.]
Ordinarily
the costs of an application for a certificate would be costs in the
application to the Constitutional Court for leave to
appeal (or if
leave be granted by that Court, then costs in the appeal). However,
there is one contingency, albeit improbable, for
which provision
should be made, namely that the union decides not to pursue the
matter further. I have catered for this contingency
in the order
which I propose.
THE
ORDER
[15.]
No
order is made on the prayer for condonation. A certificate is
furnished in terms of Constitutional Court rule 18 (b) as follows:
sub-rule
(a)(i) – negative
sub-rule
(a)(ii) – positive
sub-rule
(a)(iii) – negative
sub-rule
(b) – negative
The costs of
this application shall be costs in the application to the
Constitutional Court for leave to appeal; provided that if
the
applicant union does not pursue such application in terms of rule 18,
then it shall pay the costs of the present application.
______
R.G.
COMRIE______
ACTING JUDGE
OF APPEAL
I
agree.
C.R.
NICHOLSON_
JUDGE OF
APPEAL
I
agree.
M.R.T.
MOGOENG
JUDGE
OF APPEAL
APPEARANCES
:
For the
applicant : Mr. Z. August, trade union official.
For the
respondent : Mr. A.C. Oosthuizen SC instructed by
Hofmeyr
Herbstein & Gihwala Inc,
Cape
Town.
Date of
hearing : 13 June 2003
Judgment
delivered : 16 July 2003