Security Services Employers' Organisation (SSEO) and Others v South African Transport and Allied Workers' Union (SATAWU) and Others (JA 28/06) [2006] ZALAC 3 (11 May 2006)

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[2006] ZALAC 3
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Security Services Employers' Organisation (SSEO) and Others v South African Transport and Allied Workers' Union (SATAWU) and Others (JA 28/06) [2006] ZALAC 3 (11 May 2006)

21
IN THE LABOUR
APPEAL COURT OF SOUTH AFRICA
HELD IN JOHANNESBURG.
Case No. JA 28/06
In the matter between
SECURITY SERVICES
EMPLOYERS’
ORGANISATION (“SSEO”) First Appellant
SOUTH
AFRICAN NATIONAL SECURITY
EMPLOYERS’
ASSOCIATION (“SANSEA”) Second Appellant
SOUTH
AFRICAN INTRUDER DETECTION
SERVICES
ASSOCIATION (“SAIDSA”) Third Appellant
WESTERN
CAPE SECURITY ASSOCIATION
(“WESCA”)
Fourth Appellant
SECURITY
INDUSTRY ASSOCIATION Fifth Respondent
OF
SOUTH AFRICA (“SIASA)
And
SOUTH
AFRICAN TRANSPORT
AND
ALLIED WORKERS’ UNION (“SATAWU”) First Respondent
THOSE
PERSONS WHOSE NAMES
ARE
LISTED IN ANNEXURE “A”
TO THE
NOTICE OF MOTION Second to further respondents
___________________________________________________________
JUDGMENT
­­­­­­­­­­­­­­­­­­­­___________________________________________________________
ZONDO JP
Introduction
[1] This is an appeal against a judgment and order given
by Cele AJ sitting in the Labour Court in terms of which he
discharged with
costs a
rule nisi
which he had granted a few days earlier. The appellants in this
appeal were the applicants in those proceedings whereas the
respondents
were respondents in those proceedings. The Labour Court
subsequently granted the appellants leave to appeal to this Court
against
its judgment and order. Before we can consider the appeal, it
is necessary to refer to the facts of this matter.
The facts.
[2] The
first to the fifth appellants are employers’ organisations within
the meaning of that term as found in sec 213 of the Labour
Relations
Act 66 of 1995 (“
the Act
”).
Each one of them has as its members some employers who operate in
various parts of the country within the security industry.
The first
respondent is the Transport and Allied Workers Union (hereinafter
referred to as “
SATAWU
”).
It is a registered trade union whose members include a very large
number of employees employed in the security industry. The
second and
further respondents are some of the members of SATAWU who are
employed within the security industry.
[3] Currently there is an industry-wide strike by
SATAWU’s members in the security industry. When the strike notice
was given prior
to the commencement of this strike, it was not
intended that SATAWU members in the security industry would be the
only ones who would
participate in the strike. The strike notice was
given around 15 March 2006. The strike commenced either late in March
or early April
2006. The other employees who, it was planned, would
also participate in the strike, are employed in the security industry
and they
are members of other trade unions. It is not necessary to
identify those other unions. It suffices for present purposes to
simply
state that the unions in question are trade unions that had a
co-operation arrangement with SATAWU to negotiate jointly with the
appellants on wages and other terms and conditions of employment.
[4] The reason why employees who are members of the
other unions are not on strike when it had earlier been contemplated
that they
would also take part in the strike is that their unions –
about 14 of them - concluded an agreement with the appellants on the
1
st
April 2006
and, thereby, resolved the wage dispute that had been going on
between them and the appellants.
[5] It would seem that the appellants were under the
impression that SATAWU was also going to sign the April 1 agreement
because a
perusal of that agreement reveals that provision was made
at the end of the agreement for the signature of a representative of
SATAWU.
SATAWU was opposed to the agreement and would not sign it.
The appellants thereafter brought an urgent application before the
Labour
Court for a
rule nisi
with an interim interdict. Effectively the appellants sought an order
declaring that SATAWU was bound by the April 1 agreement despite
the
fact that SATAWU had not signed that agreement.
[6] There is only one basis upon which the appellants
mounted their case in the founding affidavit that SATAWU was bound by
the April
1agreement and that, therefore, it was not entitled to
pursue the current strike. Before I identify that basis, it is
necessary to
first refer to a document within the record marked
“
Constitution for the National Bargaining
Council for the Private Security Services Industry.”
(“
the constitution
”).
That document was prepared in 1998 by a number of trade unions
including SATAWU’s predecessor, the Transport and General Workers
Union and two employers’ organisations, including the second
appellant, in the private security industry with a view to the
registration
of a bargaining council for the transport industry.
[7] The efforts to get a bargaining council registered
failed to secure sufficient support. Accordingly, no bargaining
council was
registered for the private security industry. Clause 6 of
the constitution governed the manner in which the different trade
unions,
on the one hand, and, employers’ organisations, on the
other, would be represented in the proposed bargaining council. The
clause
envisaged proportional representation based on the number of
members a trade union had. However, the minimum threshold was 5000
members.
Clause 15 governed the procedure applicable to negotiations
for the conclusion of a collective agreement in the bargaining
council.
[8] After this short detour, I now return to the basis
upon which the appellants sought to make out a case in support of its
contention
that SATAWU was bound by the April 1 agreement. That basis
is to be found in paragraph 17 of the founding affidavit. There the
deponent
to the founding affidavit said that on the 25
th
November 2005 “
the parties to the
Constitution, including [SATAWU
]”, signed
an addendum to the Constitution in terms of which these parties again
confirmed their intention to be bound by the constitution
and further
agreed that “
clause 6
[dealt with below]
of the attached
document (i.e. the constitution) does not apply and further agree
that section 69 together with the Code of Good Practice
on Picketing
as contained in the LRA (Act 69 of 1995, as amended) will apply.”
In paragraph 18 of the founding affidavit
the deponent then stated in effect that, as clause 6 of the
constitution dealt with proportional
representation of trade unions
and employers’ organisations on the council, the agreement among
the parties to the addendum that
clause 6 would not apply meant that
each trade union and each employers’ organisation would be
allocated one vote.
[9] Paragraphs 28, 29 and 30 of the founding affidavit
fell under the heading: “
Legal submissions
”.
In par 28 the deponent submitted that “
upon
a proper interpretation of clause 15(3)(e) of the constitution as
read with clause 2 of the [April 1] wage agreement and the
addendum
to the constitution, [SATAWU] is bound by the wage agreement and is
therefore not entitled to strike in pursuance of the
demands which
formed the issue in dispute and therefore the subject matter of the
strike. Legal argument in this regard will be addressed
to the above
Honourable Court at the hearing of this matter.”
In par 29 the deponent stated that
“(i)n any
event, it is apparent from clauses 2.3 and 2.4 of the wage agreement
that [SATAWU] is precluded from continuing with the
strike unit such
time as the Minister of Labour
has
considered the promulgation of the wage agreement as a Sectoral
determination as contemplated in section 52 of the LRA. Legal
argument in this regard will be addressed to the above Honourable
Court at the hearing of this matter.”
In
par 30 the deponent concluded by saying he was “
therefore
”
submitting that the continued strike was unprotected.
[10] It is clear from a consideration of the founding
affidavit that the only basis upon which the appellants contended
that SATAWU
was bound by the April 1 agreement was that it had agreed
that clause 6 of the constitution would not apply. It is also clear
that
the only basis upon which the appellants relied in the founding
affidavit to say that SATAWU had agreed that clause 6 would not apply
was a handwritten amendment to the addendum to the constitution. The
material parts of that handwritten amendment to that addendum
are
quoted in paragraph 17 of the founding affidavit. No other case was
sought to be made out in the founding affidavit. To the extent
that
it can be said that in paragraph 18 of the founding affidavit the
deponent sought to make out another case which was not based
on the
handwritten amendment to the addendum, such case would have been one
to the effect that, in the light of clause 2 of the April
1
agreement, SATAWU was bound by that agreement even though SATAWU had
not signed it. It was not a case based on any conduct of SATAWU.
Of
course, such a contention was devoid of any substance and deserves no
further consideration.
[11] In its answering affidavit SATAWU admitted that it
had signed the addendum of the 25
th
November 2005 to the constitution but that, when it signed the
addendum, the contents of the addendum were only the typed contents
and not the handwritten amendment. SATAWU explained in the answering
affidavit that the handwritten amendment to the effect that
clause 6
of the constitution would not apply was added later and the parties
to the typed addendum were asked to initial the amendment
to signify
their agreement to it. SATAWU said that it refused to initial the
handwritten amendment. For that reason, contended SATAWU
in the
answering affidavit, it was not bound by the April 1 agreement.
[12] In his replying affidavit the deponent to the
founding affidavit conceded the veracity of SATAWU’s version about
the handwritten
amendment to the addendum. However, he stated that,
that notwithstanding, upon a proper interpretation of clause 15(3)(e)
of the
constitution as read with clause 2 of the wage agreement and
the amended addendum to the constitution, SATAWU was still bound by
the wage agreement. This contention is rather puzzling in the light
of the concession made on behalf of the appellants earlier in
the
affidavit to the effect that SATAWU did not initial the handwritten
amendment. That contention was advanced in paragraph 7 of
the
replying affidavit which is a reply to para 14 of SATAWU’s
answering affidavit. In paragraph 8, which is a reply to par 15
of
SATAWU’s answering affidavit, the deponent to the appellants’
replying affidavit purports to give an explanation for his statement
in the founding affidavit that what SATAWU had agreed to included the
handwritten amendment to the addendum to the constitution and
yet in
the replying affidavit he was conceding the veracity of SATAWU’s
version.
[13] It is necessary to say how Mr Myburg, the deponent
to the founding and replying affidavits of the appellants, attempted
to explain
the conflicting positions that he took in the founding and
replying affidavits with regard to SATAWU’s attitude to the
handwritten
amendment. Under par 8 of the replying affidavit he said
that Mr Ravuku, who was the facilitator at the meetings of the 25
th
November 2005 and the 5
th
December 2005, informed everybody at the meeting that all parties had
initialled the handwritten amendment. He said this against
the
background of a statement he had made earlier in the replying
affidavit that, before the commencement of the meeting of the 25
th
November, the appellants had said that they were not prepared to
negotiate with the trade unions, including SATAWU, unless the trade
unions reached an agreement amongst themselves as to their threshold
of representivity. He said that, according to his source, the
unions
had thereafter asked for a caucus and when they returned to the
meeting, Mr Ravuku had confirmed that all the parties to the
dispute,
including SATAWU, had signed the addendum and had initialled the
handwritten amendment to the addendum.
[14] The replying affidavit stated that Simon, who
represented SATAWU at the meeting, did not then say that what Ravuku
had said was
not true and that SATAWU had not initialled the
handwritten amendment or that SATAWU did not consider itself bound by
the handwritten
amendment to the addendum. Mr Myburg said this in
paragraphs 8.1.1 to 8.1.4 of his replying affidavit. Then in
paragraph 8.1.5 he
said: “…
accordingly,
the applicants thereafter commenced with the wage negotiations on the
understanding that the unions had reached an agreement
inter partes
as to their thresholds for representivity (i.e that clause 6 of the
Constitution would not be applicable.”
Mr
Myburg went on to say in par 8.1.8 of the replying affidavit that at
the commencement of the next meeting, which was on the 5
th
December 2005, Simon asked that certain corrections be effected to
the minutes of the meeting of the 25
th
November to say that “
SATAWU now states that
they had not initialled against the amendment to the addendum
.”
Mr Myburgh says in the affidavits that his source told him that these
amendments to the minutes were adopted as a true reflection
of the
proceedings of the 25
th
November 2006.
[15] In par 8.1.9 of the replying affidavit Mr Myburg
said that his source informed him that, after the adoption of the
amendments
to the minutes proposed by Simon, the parties continued
with their meeting on the 5
th
December. He says that this was “
in an
attempt to resolve the dispute.
” He said
that “
Simon participated in the negotiations
at this meeting and again did not advise Ravuku or any other person
that [SATAWU] was no longer
prepared to be involved in these
negotiations because it had not agreed to the thresholds of
representivity as contemplated in the
amendment to the addendum.
”
In par 8.2. Mr Myburg said that “
under such
circumstances
” he was submitting that
“[SATAWU] [had] acquiesced to the amendment
to the addendum and is therefore estopped from denying that it agreed
to the amendment
to the addendum
.” He
further said that legal argument in this regard would be addressed to
the court at the hearing of the matter.
[16] In par 8.3 of the replying affidavit Mr Myburg
confesses that at the time when he deposed to the founding affidavit,
he was under
the bona fide but mistaken impression that Simon had
initialled the amendment to the addendum. He then says in the next
sentence:
“
I nevertheless am still of the
view that [SATAWU] had agreed to the amendment to the addendum.”
In par 9.1 he states that,
“(a)s stated
hereinabove, the amendment to the addendum excised clause 6 from the
constitution and therefore this clause was not
applicable to the
negotiations which culminated in the wage agreement.”
[17] If one has regard to the replying affidavit, one
can see that, on the one hand the appellants admit that SATAWU did
not initial
the handwritten amendment to the addendum and yet, on the
other, they do not go on to admit that SATAWU is therefore not bound
by
the wage agreement. Their case is that SATAWU is, nevertheless,
bound by the April 1 agreement. It is clear from the earlier
subparagraphs
of paragraph 8 that the circumstances that the
appellants relied upon to say that SATAWU had acquiesced to the
handwritten amendment
related to the conduct of SATAWU’s
representative at the meetings of the 25
th
November 2005 and 5 December 2005 as described earlier.
[18] In par 9.2 of the replying affidavit the appellants
sought to make out some point based on clause 15(3)(e) but the case
it sought
to make out therein is difficult to follow and, when this
was pointed out to Council, he did not attempt to base the
appellant’s
case thereon.
[19] It follows from the above that the case that the
appellants sought to make out in the founding affidavit was based on
the allegation
that SATAWU had agreed to the handwritten amendment to
the addendum but that case was answered fully an successfully in the
respondents’
answering affidavit. Realising that the case that they
had sought to make out in the founding affidavit had become
unsustainable
in the light of the respondents’ answer, the
appellants purported to introduce another case in their replying
affidavit. That was
that SATAWU was bound by the wage agreement of 1
April because at the meetings held on the 25
th
November 2005 and 5 December 2005 its representative did not announce
that SATAWU had not initialled the handwritten agreement nor
did he
say at the meeting of the 5
th
December that SATAWU “
was on longer prepared
to be involved in these negotiations because it had not agreed to the
thresholds of representativity as contemplated
in the amendment to
the addendum.”
[20] At this stage it is important to point out that on
appeal the case that Counsel for the appellants argued was not the
one foreshadowed
in the founding affidavit as outlined above. It was
based on the conduct of SATAWU’s representative at the meeting
referred to
above. Whether or not it was open to the appellants to
argue that case is an issue that I shall deal with shortly. In the
meantime
it is necessary to point out that, after the appellants had
delivered their replying affidavit, SATAWU delivered a further
affidavit
which it called a supplementary affidavit. In the
additional affidavit SATAWU sought the leave of the Court to file the
affidavit.
We were informed that the Court a quo granted leave and
the matter was argued on the basis of all the affidavits including
SATAWU’s
supplementary affidavit. No further affidavits were
delivered thereafter by any party.
[21] In the supplementary affidavit SATAWU said that it
was agreed, it seems in October 2005, between SATAWU and the
appellants that
the constitution would form the basis of the wage
negotiations. The deponent says that SATAWU and the appellants then
signed the
addendum to the Constitution without the handwritten
amendment and this was done in order to give effect to the agreement
that the
constitution would form the basis of the negotiations. The
deponent says that the other trade unions refused to sign the
addendum
without the handwritten amendment. Those unions then
effected the handwritten amendment and initialled it but SATAWU
refused to initial
it. The deponent says that, as far as SATAWU was
concerned, clause 6 of the constitution remained in force.
[22] The deponent to the supplementary affidavit
explained in paragraph 8 thereof exactly what followed at the meeting
of the 25
th
November after SATAWU had refused to initial the handwritten
amendment. He says that
“(t)he employers
expressed concern at having to negotiate with 15 union and, at some
meetings, in the region of 50 representatives
.”
He goes on thus:
“The unions therefore caucused and elected four representatives.
The other unions recognised SATAWU as the majority union and agreed
that it would therefore be entitled to its own representative. The
other unions requested that the kind of arrangement referred to
in
subclause 6(4) of the constitution he applied to the unions. Because
precise membership figures were not available, and because
SATAWU did
not wish to scupper negotiations or endanger the eventual
promulgation
of a Sectoral
determination, SATAWU agreed with this proposal. All the other unions
were therefore to be represented by three joint
representatives. The
unions’ negotiating team would henceforth be composed of these four
representatives.”
Clause 6(4) relates to efforts that had been made to
ensure that, if there was one or more of the employers’
organisations which
represented small and medium enterprises, at
least one of them had to be given a seat on the delegation
representing the employer
party. Within the context of trade unions
this would mean, it seems to us, that one of the three
representatives representing the
unions had to be from a small trade
union.
[23] In the additional affidavit the deponent refers to
a meeting of the 30
th
November 2005 between the Department of Labour, on the one hand, and,
on the other, SATAWU and other unions, in which the Department
of
Labour submitted a draft constitution for the bargaining council for
the private security industry which removed the threshold
system
contained in clause 6 of the 1998 constitution. The deponent says
that SATAWU rejected this attempt and the draft amendment
was not
adopted.
[24] The deponent to SATAWU’s supplementary affidavit
states in paragraph 18 thereof that at a meeting of the unions
involved in
the dispute with the appellants early in March 2006 the
unions “
agreed that they would not sign a
wage agreement without a collective mandate of all members.”
He says that the agreement among the unions relating to the need for
a collective mandate was reiterated at a meeting of the unions
that
was held on the 23
rd
to the 24
th
March
2006
“and it was decided that the collective
mandate would be sought on 3 April 2006.”
He says in par 20 that the other unions “
reneged
on this agreement
” and signed the April 1
wage agreement.
The appeal
[25] I
have already outlined above the case that the appellants sought to
make out in the founding affidavit, the replying affidavit
and on
appeal before us. It is not necessary to repeat that exercise. The
first question that arises is whether the appellants were
entitled to
argue the case that they sought to argue on appeal. Counsel for the
respondents submitted that they were not so entitled.
Relying on
Administrator, Transvaal and others v
Theletsane & others 1991(2) SA 192 (A)
Counsel for the respondents argued that the manner of approaching the
affidavits adopted by the appellants on appeal was the same
as the
one that the respondents in
Theletsane
adopted
which was rejected by the Appellate Division in that case.
[26] In this regard it is important to point out that in
effect Counsel for the appellant’s case on appeal was that from the
fact
that SATAWU had agreed that the unions’ delegation to the
negotiations with the appellants be a group of four representatives
that
was not composed on the basis of the level of membership of the
different unions in the industry and the fact that SATAWU’s
representative
continued to participate in the negotiations on the
25
th
November and
5 December 2005 without announcing that SATAWU had not initialled the
handwritten amendment to the addendum we must
draw the inference that
SATAWU was agreeing that the decision of the council would be based
on a simple majority as provided for
in clause 15(3)(e) and not on
clause 6 of the constitution.
[27] Counsel for the respondents contended that, as was
decided in Theletsane’s case, it would be unfair to the respondents
to draw
the inference that the appellants urged us to draw from the
respondents’ supplementary affidavit. He pointed out that the case
that the appellants sought to make out in their founding affidavit
was that SATAWU had agreed to the handwritten amendment to the
addendum and that, for that reason, it was bound by the April 1
agreement and that is the case which SATAWU sought to meet in its
answering affidavit and supplementary affidavit. He submitted that it
would be unfair and prejudicial to the respondents for the
matter to
be decided on a basis that ignores that context of the answering and
supplementary affidavits.
[28] In Theletsane the workers employed by the
Administrator, Transvaal, brought an application to the then Supreme
Court for an order
inter alia declaring that their dismissal by the
Administrator was unlawful in that they had not been given a hearing
before they
were dismissed and that this omission on the employer’s
part vitiated their dismissal. In answering this case the
Administrator
went beyond denying the allegation that the workers had
not been given a hearing before they were dismissed but gave details
relating
to the hearing that they had been given. The Adminstrator,
Transvaal and others were the appellants in the Appellate Division
and
the workers were the respondents. The Witwatersrand Local
Division had granted the workers’ application on the basis that the
hearing
that the Adminstrator had given the workers was not a fair
hearing and not on the basis that the Adminstrator had not given the
workers
a hearing at all as had been alleged by the workers in their
founding affidavit.
[29] On appeal Smallberger JA, who gave a minority
judgment, also adopted the same approach as had been adopted by the
Witwatersrand
Local Division and found in favour of the workers on
the basis that the Administrator had failed to give the workers a
proper or
fair hearing. Botha JA, in whose judgment the majority
concurred, disagreed with this approach of dealing with affidavits.
He held
that it was not permissible to decide the matter on the basis
that, although the case sought to be made out by the workers in the
founding affidavit was that the workers had not been given any
hearing was without substance, the dismissal was, nevertheless,
unlawful
on the basis that the hearing that the appellants had given
the workers was not proper or fair. He said that that amounted to
reversing
the onus. He emphasised that the context in which the
appellants in that case had given details about the adequacy or
fairness of
the hearing that the respondents had been given was that
they were answering a case to the effect that no hearing whatsoever
had
been afforded the workers and not one to the effect that an
inadequate or improper hearing had been afforded them.
[30] In our judgement the submission by Counsel for the
respondents that the approach to affidavits on the basis of which
Counsel
for the appellants sought to argue the appellants’ case is
impermissible and in conflict with the decision of the Appellate
Division
in Theletsane’s case is correct. In our view the
respondents were called upon to answer the case as set out in the
founding affidavit
and not any other case. The fact that they may
have gone further than that in the answering affidavit does not mean
that they would
not be prejudiced if the matter were now to be
decided on the basis of such additional information as they may have
included in the
answering and supplementary affidavit. They were
answering the case that they had agreed to the handwritten amendment
to the addendum.
[31] The submission by Counsel for the appellants was
that we should draw an inference from the respondents’ own version
of events
that SATAWU acquiesced to the handwritten amendment to the
addendum or to an arrangement in terms of which it was bound by the
decision
of a simple majority of the council. He submitted that, when
regard is had to the fact that the majority of the trade unions and
the appellants signed the April 1 agreement, that decision enjoyed
the majority of the unions or the council. Counsel submitted that
we
should draw this inference from the fact that SATAWU, on its own
version, had agreed to the unions being represented by a delegation
of four irrespective of the different levels of membership of the
different unions in the industry meant that SATAWU was agreeing
to
the provisions of clause 15(3)(e) of the constitution being
applicable as opposed to clause 6. He pointed out that otherwise it
was difficult to see how else the delegation of four could operate.
We think that the answer to this is that the appellants did not
anywhere say that by merely agreeing that the unions’ delegation be
composed of four representatives SATAWU was agreeing to the
application of clause 15(3)(e) with regard to decision making.
[32] Accordingly, the submission lacks an evidential
basis in the affidavits and stands to be rejected. At any rate the
submission
flies in the face of the uncontradicted evidence contained
in the respondents’ supplementary affidavit that an agreement had
been
concluded among the trade unions to the effect that a collective
mandate of the workers would be sought before any agreement could
be
signed with the appellants. The deponent to the supplementary
affidavit makes it clear that the signing of the April 1 agreement
by
the trade unions which signed that agreement was contrary to
agreement among the trade unions that “
a
collective mandate”
would be sought on the
3
rd
April 2006.
This uncontradicted evidence shows that it was never agreed that the
delegation of four had the power to bind everyone
to an agreement
simply because they constituted the negotiating team of the unions.
[33] Furthermore, the deponent to the supplementary
affidavit also made it clear that the reason why SATAWU had agreed to
a delegation
of four with no regard to the level of membership of the
different unions was to avoid scuppering the wage negotiations by
insisting
on a delegation that was based on the level of membership
of the different trade unions when there were no figures immediately
available
to verify membership. In our view SATAWU’s conduct in
regard to agreeing to the delegation of four and in regard to its
representative
at the meetings of the 25
th
November and 5 December 2006 provided no basis for the drawing of the
inference that the appellants urged us to draw. In law that
inference
can only be drawn if it is the more natural of the inferences that
arise. (see
Govan v Skidmore
1952 (1) SA 732
(N)
as explained by Holmes JA in
Ocean
Accident and Guarantee Corporation Ltd v Koch 1963(4) SA 147(A) at
159 B-D
and followed in
Hulse-Renter
& others v Godde 2001(4) SA 1336 (SCA) at 1344 C-F
.
Such inference can simply not be drawn when it is quite clear not
only that SATAWU was adamant that it would not initial the
handwritten
amendment to the addendum but also that it sought to
ensure that the arrangement contemplated in clause 6 was not done
away with.
Furthermore, we are of the view that there can be no
logical explanation why SATAWU would have seen it as advantageous to
itself
to agree that, notwithstanding the fact that it was the
biggest of all the other unions added together, it should,
nevertheless,
be bound by a decision taken by the minority unions.
[34] In all of the circumstances we have no hesitation
in coming to the conclusion that SATAWU did not acquiesce to the
April 1 agreement
nor did it at any stage agree to be bound by any
decision of the minority unions. Accordingly, the appeal stands to be
dismissed.
There is no reason why costs should not follow the result.
[35] In the premises the appeal is dismissed with costs.
Zondo
JP
I
agree.
Jappie
AJA
I
agree.
Musi
AJA
Appearance:
For the appellant : P Kennedy SC with adv Van As
Instructed
by : Moodie & Robertson
For the respondent : JG Van der Riet SC
Instructed
by : Cheadle Thompson & Haysom Inc
Date of judgment : 11 May 2006