Security Services Employers. Organisation ("SSEO") and Others v South African Transport and Allied Workers. Union ("SATAWU") and Others (JA 28/06) [2006] ZALAC 6 (11 May 2006)

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[2006] ZALAC 6
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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 6 (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