BIFAWU and Another v Mutual and Federal Insurance Company Limited (JA15/2003) [2005] ZALAC 10; [2006] 2 BLLR 118 (LAC) (9 December 2005)

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[2005] ZALAC 10
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BIFAWU and Another v Mutual and Federal Insurance Company Limited (JA15/2003) [2005] ZALAC 10; [2006] 2 BLLR 118 (LAC) (9 December 2005)

IN THE LABOUR
APPEAL COURT OF SOUTH AFRICA
(HELD
IN JOHANNESBURG)
CASE
NO: JA 15/2003
REPORTABLE
In
the matter between:
BIFAWU
First
Appellant
(First
Applicant in the Court
a
quo
)
and
MFUNDO
NHLAPO
Second Appellant
(Second
Applicant in the Court
a
quo
)
and
MUTUAL
and FEDERAL INSURANCE COMPANY LIMITED
Respondent
JUDGMENT
WILLIS
JA:
[1]
The second appellant, who had been employed by the respondent as an
underwriting clerk, had represented a fellow employee, one
Pepsi
Munyai, at a disciplinary enquiry and subsequent arbitration
proceedings before the Commission for Conciliation Mediation and
Arbitration (“the CCMA”). Munyai, a clerk, had been dismissed by
the respondent for misconduct relating to the dishonest processing
of
insurance claims. The respondent, as its name suggests, is an
insurer. The CCMA commissioner confirmed the dismissal and rejected
Munyai’s claim that his dismissal had been substantively unfair. He
found that there had been procedural unfairness in the manner
of
Munyai’s dismissal and ordered the respondent to pay R39 369,00,
which sum was calculated in relation to Munyai’s earnings.
[2]
In his arbitration award, the CCMA commissioner found that during
Munyai’s disciplinary enquiry “a request for a postponement
was
rejected by the chairperson thereof after an objection was raised by
the prosecutor, Mr Slater who played the role of the prosecutor
and
witness and the chairperson interrupted the cross-examination of Ms
Van Greunen and Ms Meintjies with questions of their own.”
The
commissioner was critical of the conduct of Mr Slater and, by
implication, Mr Jansen, the chairperson, for not exercising greater
control. The commissioner’s arbitration award was not taken on
review. A reading of the record of the disciplinary proceedings
indicates that the manner in which the enquiry was held was not above
reproach. Whether or not this would justify a finding that
Munyai did
not receive a fair hearing is, for the purposes of this case,
irrelevant. What is clear is that the commissioner found,
for mixed
reasons, that there had been procedural unfairness. It seems unlikely
that, had his award been taken on review, there would
have been any
basis, as a matter of law, upon which to interfere therewith.
[3]
The merits of Munyai’s dismissal, his disciplinary enquiry and the
arbitration proceedings relating thereto are, essentially,
irrelevant
to this case. They do, however, form a background against which the
instant case has been and is to be determined. I shall
deal with the
judgment of the Court which dealt with the dismissal of the second
appellant (the Court
a
quo
) in more detail
later on. Although the Court
a
quo
found, upon a
careful reading of the record, that at one stage the chairperson had
refused a request for a postponement, it also found
that he very soon
thereafter reconsidered his position and then granted a postponement.
Munyai suffered no prejudice. A less critical
eye being cast over the
record could be forgiven for not discerning the corrective behaviour
of the chairperson. In other words,
the CCMA commissioner erred in
this regard. The error is, however, a comprehensible one. Moreover,
as I have already said, the CCMA
commissioner decided the question of
procedural fairness for mixed reasons and did not rely on the refusal
of a postponement alone.
The Court
a
quo
found that there
had been no other incidents of a refusal of a postponement during the
disciplinary enquiry of Munyai.
[4]
The CCMA commissioner’s award in the Munyai case was dated 9
January 2000. It seems to have been received by the parties some
time
later. Consequent thereupon the second appellant received a notice on
24 March 2000 notifying him that he should attend a disciplinary
enquiry on 29 March 2000. In that notice the following allegations
were made against him:
“
Serious
misconduct, arising out of dishonest statements made by you, both in
the arbitration hearing and written argument in the CCMA
case GA
42003, Mr P. Munyai and Mutual & Federal. You alleged falsely
that Mr Munyai had requested a postponement of his disciplinary
hearing but was unreasonably turned down and that therefore the
disciplinary hearing was procedurally unfair. Mutual & Federal
contends that you made these false statements with the intention of
harming the company and that the company was indeed harmed. Mutual
&
Federal also contends that your dishonesty is inconsistent with your
employment as an underwriting clerk in a position of trust
and that
your continued employment is intolerable.”
[5]
Of particular concern to the respondent was the following which
appeared in the heads which the second appellant prepared in the
arbitration at the CCMA concerning Munyai:
“
(D)uring
the hearing the applicant
(i.e.
Munyai)
requested a
postponement of the hearing at least for 4 days and also requested
the respondent to provide copies of all documentation
upon which he
intended to rely for evidence during the investigation, as well as
the identity of all (if any) of its witnesses. The
request was
unfairly denied by the respondent. We contend that it is an important
element of natural justice that the accused be
given a fair and
proper opportunity to prepare for his case. We regard the 30 minutes
given was too short and unreasonable on the
part of the respondent,
taking into account the complexity of the matter.
”
[6]
Mr Franklin
,
who prepared the heads of argument for the respondent, correctly and
fairly submitted that: “
In
making the finding of procedural unfairness, the CCMA appears at
least to have placed some reliance on the contention in the
applicant’s
heads quoted above that a request for a four day
postponement had been made but unreasonably refused by the Chairman
of Munyai’s
disciplinary enquiry.
”
In other words,
Mr
Franklin
appears to
have accepted that the CCMA commissioner decided the question of
procedural fairness for mixed reasons. It is clear from
the record,
as well as the respondent’s heads of argument that the respondent
was peeved, to say the least, not only with the result
of the
arbitration at the CCMA but also the second appellant’s conduct
relating thereto.
[7]
The respondent held a disciplinary enquiry into the second
appellant’s alleged misconduct as referred to in paragraph [4]
above. The second appellant was found guilty and dismissed on 29 July
2000. The reason given by the chairperson of the second appellant’s
disciplinary enquiry was that the second appellant was “guilty of
serious misconduct arising out of dishonest statements you had
made
in CCMA case 42003 P Munyai v Mutual & Federal.”
[8]
The appellants referred a dispute concerning the respondent’s
alleged unfair dismissal of the second appellant to the CCMA for
conciliation. This was unsuccessful. The appellants then referred the
dispute directly to the Labour Court in terms of
s 191
(5) (b) (i) of
the
Labour Relations Act No 66 of 1995
as amended (“the LRA”).
The appellants alleged that the dismissal was “automatically
unfair” in terms of
s 187
of the LRA. The appellants relied on the
provisions of
section 187(1)
(d) of the LRA which provides that a
dismissal is automatically unfair if the reason for the dismissal is
that “
the employee
took action, or indicated an intention to take action, against the
employer by-
exercising
any right conferred by this Act; or
participating
in any proceedings in terms of this Act
”
The
appellants alleged that the dismissal was automatically unfair
because he was “dismissed for exercising his right of representing
a fellow employee”, because he participated in “arbitration
proceedings in terms of the Act” and “actually amounts to
victimization.”
The appellants also alleged that the dismissal was
procedurally unfair “in that his (i.e. the second appellant’s)
union was not
consulted prior to him being charged.” The second
appellant claimed reinstatement.
[9]
The Court
a quo
(
per
Waglay J) found not only that
although at a certain stage the chairperson of Munyai’s
disciplinary enquiry had refused a request
for a postponement, he
very soon thereafter reconsidered his position and thereupon granted
a postponement, but also that no other
requests for a postponement
had been sought, let alone refused. The Court
a quo
found that
during Munyai’s arbitration hearing, the second appellant in making
submissions to the CCMA commissioner had been deliberately
deceitful
and had intentionally misled the CCMA commissioner in regard to the
question of postponements. The following facts are
relevant:
(i) The record of
Munyai’s disciplinary enquiry clearly demonstrates that second
appellant’s claims in respect of the alleged
refusal of the
postponement were incorrect;
(ii)
The second appellant did not admit error but persisted with his
claim that this was the truth;
The
second appellant was evasive when pressed to show where, in the
record of Munyai’s disciplinary proceedings, requests for
postponements had been unreasonably refused;
Ultimately,
after rigorous questioning, he relied on only four pages in the
transcript, where he said the record showed requests
for
postponements had been unreasonably refused;
When
confronted with the fact that the transcript on these four pages
plainly did not support his contentions, he resorted to ridiculous
explanations.
The
Court
a quo
found that the second appellant had been guilty of
serious misconduct which justified his dismissal.
[10]
On the question of the alleged procedural unfairness, the Court
a
quo
held that as the first appellant was not a union recognized
by the respondent there was no obligation upon it to notify the first
appellant of the second appellant’s disciplinary enquiry and, in
any event, the provisions of item 4 (2) of schedule 8 to the LRA
were
guidelines only. The Court
a quo
dismissed the appellants’
application with costs and ordered that the first and second
appellants were jointly and severally liable,
the one paying the
other to be absolved, to pay the respondent’s costs.
[11]
The Court
a quo
delivered an
ex tempore
judgment on 14
February 2002. It would appear that the typed copy of this judgment
was given to the parties on 10 May 2002. Although
the appellants had
filed a notice of application for leave to appeal on 26 February
2002, they filed an application for leave to
appeal supported by
grounds thereof on 26 June 2002 only. This was some 78 days out of
time. Some five months later, on 2 December
2002, the appellants
filed an application for condonation for the late filing of their
grounds of appeal. The application for condonation
was dismissed by
the Court
a quo
on 11 March 2003. The appellants petitioned
this Court on 26 May 2003 for leave to appeal. Such leave was granted
on 8 August 2003.
The respondent has not taken the point that perhaps
it would have been correct for the appellants first to seek leave to
appeal against
the Court
a quo
’
s
decision to refuse
condonation. In any event, the parties agreed at the hearing before
us that the appeal should be disposed of now.
By agreement between
the parties this Court made an order that, to the extent that it was
necessary to do so, condonation was given
in respect of any step
which may have been taken by the appellants and which was out of
time.
[12]
In my opinion, one cannot fault the Court
a quo’s
findings
not only that although at a certain stage the chairperson of Munyai’s
disciplinary enquiry had refused a request for a
postponement, he
very soon thereafter reconsidered his position and thereupon granted
a postponement, but also that no other requests
for a postponement
had been sought, let alone refused. The evidence, including
unchallenged
viva voce
evidence by several of the respondent’s
witnesses, as well as the transcripts themselves, is overwhelming.
[13]
It is clear from the voluminous record consisting of 1274 pages,
spread out over 13 volumes, as well as the appellants’ heads
to
which the second appellant has personally been a party (consisting of
178 pages of single space typing in a small font), that
the second
appellant, when it comes to disputes over disciplinary matters,
whether he is acting for others or himself, has been difficult,
indeed obstreperous. He has been a point-taker
par excellence.
No one can accuse him of being a slouch in such matters. He concedes
little, if anything. The proceedings have been inordinately
lengthy
for such a matter. In his heads of argument,
Mr Franklin
has
specifically complained that there were numerous pre-trial
conferences and a number of attempts at agreeing a pre-trial minute,
all of which were unsuccessful. Attempts to agree on the status and
correctness of the transcripts also met with a lack of co-operation.
An example of the difficulties which the respondent experienced is
the following response which appears in the record: “
We
(i.e.
the appellants)
received the transcript of the disciplinary
enquiry for Munyai, but are unable to confirm that what is contained
therein is a true
reflection of what transpired at the disciplinary
hearing since the transcript has many flaws in terms of the sentence
construction,
the spelling and the grammar.
”
[14]
Eventually, the respondent was able to secure from the appellants a
“schedule of discrepancies” in the transcript. The appellants
contended that there were errors in the transcription. During the
trial, however, it was contended by the appellants that a request
for
a four day postponement had been omitted from the transcript. The
Court
a quo
correctly rejected this version.
[15]
The second appellant persisted with his false claims throughout both
his own disciplinary enquiry and the hearing before the
Court
a
quo
. He not only denied that he had made false statements
concerning the postponements but also offered nothing by way of
mitigation.
This attitude continued even in the appeal hearing before
us. We are, however, mindful of the fact that it is the second
appellant’s
conduct
before
his dismissal which is relevant
in determining whether or not his dismissal was fair.
[16]
Upon reading the record it is difficult to determine whether the
second appellant’s attitude to the conduct of proceedings
arises
from immaturity, inexperience, over-zealousness, exuberance, an
inability to maintain a certain detachment or something else.
It has
been clear, even during the appeal hearing, that the second appellant
is prone to use hyperbole as a rhetorical flourish.
For example, when
pressed by us to point to a single instance in the transcript of
Munyai’s disciplinary hearing where a request
for a postponement
had been unreasonably refused, the second appellant retorted that
“99% of the transcript is missing.” Not
only is this inconsistent
with the admissions which the appellants have made in regard to the
transcript, not only does the transcript
betray no sign of being an
expurgated version, not only were the transcripts prepared a long
time before the point about postponements
being unreasonably refused
was ever raised by the appellants, but also if the voluminous
transcript record constitutes a mere 1%,
Munyai would have had one of
the most exhaustive hearings for misconduct of the kind in question
in the annals of South African labour
practice. It is understandable
that the respondent would have found the second appellant
exasperating. The point should not, however,
be pressed too far.
[17]
Nevertheless, the record of arbitration hearing of Munyai, and the
disciplinary enquiry of the second appellant has the cumulative
effect of compelling the conclusion that the second appellant did not
merely have a momentary lapse of candour but was downright
devious,
unscrupulous and deceitful. Moreover, this pattern repeated itself in
the trial before the Court
a
quo.
[18]
Even if one accepts, as I do, that the Court
a quo
was correct
in finding that the second appellant, in making submissions to the
CCMA commissioner, had been deliberately deceitful
and had
intentionally mislead the CCMA commissioner in regard to the question
of postponements, that would not necessarily dispose
of the matter.
Although acts of dishonesty by an employee will normally justify
dismissal, this is not an invariable rule.
1
Per se
, the dishonest statements relating to the question of
postponements of which the respondent complains are in a different
league from
that, for example, perpetrated by Munyai. They are also
different from the case where an employee deliberately falsifies the
evidence,
or interferes with a witness in a disciplinary case.
[19]
That an employee, even when he or she is representing a fellow
employee at a disciplinary enquiry or arbitration hearing, owes
certain duties to the employer cannot be doubted. Among these is the
duty to act honestly. The second appellant himself conceded
this.
After all, when an employee represents a fellow employee at a
disciplinary enquiry or arbitration hearing, he or she does so
precisely in that capacity of being a fellow
employee
.
The fellowship does not transubstantiate the continuing employment
relationship between the employer and the representing employee.
[20]
In
Mondi Paper Co Ltd
v Paper Printing & Allied Workers Union & Another
2
,
Nugent J, as he then was, said in a slightly different context:
“
No doubt a
shop steward should fearlessly pursue the interests of the members he
represents and he ought to be protected against being
victimized for
doing so. However, this is no licence to resort to defiance and
needless confrontation. I do not agree with the view
of the court a
quo that the fact that he was acting in his capacity as a shop
steward serves to ‘mitigate’ conduct which objectively
is
unacceptable. Notwithstanding the position to which he has been
elected, a shop steward remains an employee, from whom his employer
is entitled to expect conduct appropriate to that relationship.
”
[21]
Of course, a Court should be slow to confirm the dismissal of an
employee whose conduct at a disciplinary enquiry or arbitration
has,
as a result of immaturity, inexperience, over-zealousness,
exuberance, or an inability to maintain a certain detachment, fallen
short of the standard that could reasonably have been expected. An
employee representing a fellow employee has the right, and indeed
the
duty, to do so fearlessly to the best of his or her ability. The
following was said in
Ngubo & Others v Hermes Laundry Works
CC
3
:
“
It is
contrary to the interest of other employees and counter-productive as
far as sound labour relations are concerned, to discipline
in the
severest possible manner, namely, by dismissal, a shop steward who
makes himself guilty of an infraction because he is performing
his
functions as a shop steward.
”
4
Nevertheless
the right and duty to represent a fellow employee to the best of
one’s ability is not an unbridled licence: it is constrained
by the
duty to do so honestly. Without honesty on the part of
representatives of the parties, the system would be unviable.
[22]
The questions that have to be answered in this case are these:
(i)
did the second appellant, when he represented Munyai, exercise a
right conferred by the LRA; and
(ii)
was the second appellant dismissed for exercising that right?
[23]
In this case, sight cannot be lost of the fact that it was the
outcome of the arbitration in the Munyai case which triggered
the
respondent’s disciplinary action against the second appellant. It
is also not irrelevant that the second appellant’s claims
about the
issue of postponement were not the only reasons for the CCMA
commissioner coming to the conclusion that the disciplinary
enquiry
in the case of Munyai was procedurally unfair. Although due allowance
must be made for the fact that the same standards cannot
be expected
at an employer’s disciplinary enquiry as would be expected of a
Court or even a tribunal like an arbitration, the proceedings
were,
as I have already indicated, not above reproach. Furthermore, as I
have also already noted, had the CCMA commissioner’s award
been
taken on review, it would seem there would have been no basis, as a
matter of law, upon which to interfere therewith. The second
appellant’s claims about the issue of postponement were not,
therefore, of critical importance in determining the result that the
respondent was ordered to pay Munyai R39 369,00.
[24]
As noted above,
section 187(1)
(d) of the LRA proscribes an employer
from dismissing an employee by reason of the employee exercising any
right conferred by the
LRA or participating in any proceedings in
terms of the LRA.
[25]
Section 23(1)
of our Constitution gives every person “the right to
fair labour practices”. Section 1 of the LRA provides that the
purpose of
that Act is,
inter alia
, to give effect to the
fundamental rights conferred by the Constitution. Section 3 of the
LRA requires that any person applying this
Act must interpret its
provisions to give effect to its primary objects and in compliance
with the Constitution. Section 39 (2)
of the Constitution, in turn,
provides that when interpreting any legislation,
every
Court must promote the spirit, purport and objects of the Bill of
Rights. Section 27 of the Constitution falls within Chapter 2, The
Bill of Rights.
[26]
Item 4 (1) of Schedule 8 to the LRA, the
Code of Good Practice:
Dismissal
provides that every employee should be entitled at any
investigation to determine whether there are grounds for dismissal to
“the
assistance of a trade union representative or a fellow
employee”. Although item 1 of the schedule provides that
“departures from
the norms established by this Code may be
justified in proper circumstances,” the general principle is clear
and has been part
of our labour law and practice for quite a while.
5
And although item (4) Schedule 8 relates to disciplinary
investigations at the behest of the employer, it seems that this
principle
must
a fortiori
apply at arbitrations convened under
the auspices of the CCMA. Moreover, section 138 (5) of the LRA
expressly refers to a person being
“represented at the arbitration
proceedings” in the context of this being a self-evident right. In
the context of labour law,
the most basic right of representation
must be that by a fellow employee or a ‘friend’.
6
The right of an employee at a disciplinary enquiry (which must
include an arbitration under the auspices of the CCMA) to be
represented
by a fellow employee is meaningless unless a fellow
employee has the right, without fear of recrimination or reprisal, to
represent
an employee at such an enquiry. The respective rights,
inverse and complementary to one another, are inextricably linked:
the one
follows from the other. Even if the right to represent a
fellow employee at a disciplinary enquiry has not been expressly
conferred
by the LRA, it necessarily arises from it, read together
with section 23 (1) of the Constitution.
[27]
In the as yet unreported case of
Kroukam v SA Airlink (Pty) Ltd
decided in the Labour Appeal Court (Case No. JA3/2003), Zondo JP
found that the principal or dominant reason for the appellant’s
dismissal “was that the respondent was not happy with the role that
he was playing in seeking to represent the interests of the
union”
7
He found that this rendered the dismissal automatically unfair.
8
In the same case, Davis AJA came to this conclusion as well.
9
I, who was one of the judges in that appeal, also reached this
conclusion.
10
In other words, the Court was unanimous that if the principal or
dominant or primary reason for a dismissal was an employee’s
dismissal
was the activities undertaken by the dismissed employee on
behalf of a union, this rendered the dismissal automatically unfair.
This
is the case even if there are other reasons which may have
played a lesser role. By parity of reasoning, if participation in
activities
on behalf of a union is the dominant reason for a
dismissal and this renders the dismissal automatically unfair, it
follows that
if the dominant reason for dismissing is that employee’s
representation of a fellow employee at a disciplinary enquiry, this
would
render the dismissal automatically unfair. The dismissal in
such circumstances would be a dismissal by reason of that employee
exercising
a right conferred by the LRA or participating in any
proceedings in terms of the LRA. This would constitute an
automatically unfair
dismissal in terms of 187(1) (d) of the LRA.
[28]
The second appellant is not a trained lawyer. The ethical standard
that would have been expected of a lawyer in the same situation
as
this is not necessarily the appropriate yardstick by which to measure
the second appellant’s conduct. Less than perfect ethical
standards
which might have came to the fore in a surfeit of enthusiasm to
defend a fellow employee, could conceivably have cried
out for a
generous dose of forgiveness which would have included a lesser
sanction than dismissal.
[29]
As noted above, however, the record of arbitration hearing of Munyai,
and the disciplinary enquiry of the second appellant have
the
cumulative effect of compelling the conclusion that the second
appellant was downright devious, unscrupulous and deceitful. The
compounding effect of all this is to compel the further conclusion
that, as alleged by the respondent in its notice of the disciplinary
enquiry, the second appellant’s “dishonesty is inconsistent with
(his) employment as an underwriting clerk in a position of trust
and
that (his) continued employment is intolerable”
11
The conclusion of the respondent was genuine. It is supported upon a
full
conspectus
of all the relevant facts. Herein lies the
dominant reason for the second appellant’s dismissal. Although the
facts which gave rise
to the second appellant’s dismissal occurred
while he was representing a fellow employee, he was not dismissed for
representing
a fellow employee but for his dishonesty. Put
differently, and to use the test of Nugent J in the
Mondi Paper
case
12
,
the respondent cannot “fairly be expected to continue the
employment relationship.”
[30]
I therefore conclude, for reasons which are slightly different from
those of the Court
a quo
, that the dismissal of the second
appellant was substantively fair.
[31]
It is necessary to deal briefly with the question of procedural
fairness. The second appellant claims that he was a duly elected
shop
steward. It is common cause that the respondent did not consult with
the second appellant’s union before instituting disciplinary
proceedings against the second appellant. The second appellant has
invoked the provisions of item 4 (2) of Schedule 8 to the LRA
which
reads as follows:
“
Discipline
against a trade union representative or an employee who is an office
bearer or official should not be instituted without
first informing
and consulting the trade union.
”
The
respondent has contended that no such obligation exists in the
present case because the union in question is not recognized by
it.
The respondent says it has minority representation among its
workforce and has dwindling support.
[32]
The trade union in question may not be a
representative
trade
union in terms of the LRA and, therefore, not entitled to various of
the organisational rights set out in Chapter III. Item
4 (2) of
Schedule 8 does not, however, confine itself to a trade union which
is
representative
. Nevertheless, item 1 of the Schedule makes
it clear that that the Schedule serves as a guideline only. There
seems to have been
no prejudice to the second appellant as a result
of the respondent’s failure to consult the trade union. The second
appellant was
ably represented during his disciplinary enquiry by a
representative of his own choice, Mr Baardt. Moreover, account must
be taken
of the fact that the error on the part of the respondent was
bona fide
. There was no mischief on the part of the employer.
The mischief which the item seems designed to prevent is the
perception that
a trade union representative may not have been
dismissed for a fair reason and/or after the following of a fair
procedure. Such mischief
cannot be perceived here.
It
also seems most unlikely that the failure to visit an award of
compensation in this case for a lack of full compliance with the
requirements of procedural fairness, will result either in this
employer or others being indifferent to the guideline in item 4 (2)
of Schedule 8 of the LRA in future.
[33]
Although, in regard to the failure to comply with the requirements of
procedural fairness, the ‘no difference’ principle
seems to have
been applied in
Farmec
(Edms) Bpk t/a Northern Transvaal Toyota v Els
13
,
it has been expressly rejected in a series of authoritative
decisions.
14
Nevertheless
,
in this case the relevant issues touching upon the question of
procedural fairness go well beyond the question of ‘no difference’.
Moreover, i
n a
somewhat different context
,
this Court expressed an aversion to a mechanical, ‘checklist’
approach
.
15
It is important
to take a holistic view of such matters.
If one takes the overall circumstances of this case into account, one
is compelled to conclude that
such
procedural unfairness as there may have been may be largely ignored.
I do
not think it is appropriate to exercise a discretion to make an award
of compensation.
[34]
The first appellant has pressed on with this appeal even to the
conclusion of the appeal hearing. The respondent has asked that
the
first appellant be made jointly and severally liable with the second
appellant to pay the costs of the appeal. We can see no
reason, in
the circumstances, not to make such an order.
[35]
The following is the order of the Court:
(a)
The appeal is dismissed with costs;
(b)
The one paying, the other to be absolved, the first and second
appellants are jointly and severally liable to pay the respondent’s
costs in this appeal.
DATED
AT JOHANNESBURG THIS NINTH DAY OF DECEMBER 2005
N.P.
WILLIS
JUDGE
OF THE LABOUR APPEAL COURT
I
agree.
C.
R. NICHOLSON
JUDGE
OF THE LABOUR APPEAL COURT
I
agree.
R.G.
COMRIE
ACTING
JUDGE OF THE LABOUR APPEAL COURT
For the First and
the Second Appellant: The Second Appellant in person
Counsel
for the Respondent:
Mr A.I.S. Redding SC
(Heads of Argument
prepared by
A. E. Franklin SC
)
Attorney
for Respondent: P.G. Bam
Date
of hearing: 25 November, 2005
Date
of Judgment: 9 December, 2005
1
See,
for example,
Boardman
Brothers v CWIU
198 (3) SA 53
(SCA) at 59G; (1998) 19 ILJ 517 (SCA);
Toyota
SA Motors (Pty) Ltd v Radebe & Others
(200)
21 ILJ 340 (LAC) at para [44].
2
(1994)
15 ILJ 778 (LAC) at 780F
3
(1990)
11 ILJ 591 (IC)
4
at
594F-G
5
See,
for example,
National
Union of Mineworkers & Another v Kloof Gold Mining Co Ltd
(1986)
7 ILJ 375 (IC) at 382B –383H;
Ibhayi City Council v Yantolo
1991
(3) SA 656
(ECD) at 671G-H
6
See,
on ‘friend’, John Grogan,
Workplace Law
,
8
th
ed, Juta’s at p195
7
See,
at para [90]
8
See,
at para [91]
9
See,
at para [38] of Davis AJA’s judgment.
10
See,
at para [67]
11
See
para. [5] above
12
See
the citation in footnote 2 above; at 781A-C
13
(1993)
14 ILJ 137 (LAC) at 143D-I
14
See,
for example,
Mohamedy’s
v Commercial Catering & Allied Workers Union of SA
(1992)
13 ILJ 1174 (LAC) at 1181A-D;
National
Union of Metalworkers of SA v Atlantis Diesel Engines (Pty) Ltd
(1993)
14 ILJ 642 (LAC) at 650F-651D;
Yichicho
Plastics (Pty) Ltd v Muller
(1994)
15 ILJ (LAC) at 603H-I;
Concorde
Plastics (Pty) Ltd v NUMSA & Others
[1998}
2 BLLR 107
(LAC) at 115B-F.
15
See,
for example,
Johnson
& Johnson (Pty) Ltd v Chemical Workers Industrial Union
(1999)
20 ILJ 89 (LAC);
[1998] 12 BLLR 1209
(LAC) at para [29] which has
been referred to with approval in numerous subsequent cases. See,
for example,
Foodgro
(A Division of Leisurenet Ltd) v Keil
(1999)
20 ILJ 2521 (LAC);
[1999]
9 BLLR 875
(LAC);
SACWU &Others v Afrox Ltd
(1999)
20 ILJ 1718 (LAC);
[1999]
10 BLLR 1005
(LAC)
Alpha
Plant and Services (Pty) Ltd v Simmonds & Others
(2001)
22 ILJ 352 (LAC);
[2001] 3 BLLR 261
(LAC);
Num
& Others v Crown Mines Ltd
[2001}
7 BLLR 716
(LAC);
B.M.D.
Knitting Mills (Pty) Ltd v SACTWU
(2001)
22 ILJ 2264 (LAC)
[2001] 7 BLLR 751
(LAC);
Wanda
& Others v Toyota Marketing, A Division of Toyota SA Motors Ltd
[2003] 2 BLLR 224
(L
)
;
Highveld Steel & Vanadium Corporation Ltd v NUM & Others
[2004] 1 BLLR 11
(LAC).