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[2007] ZALAC 20
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Randfontein Estates Limited v National Union of Mineworkers (JA29/06) [2007] ZALAC 20; (2008) 29 ILJ 998 (LAC) (15 November 2007)
IN THE LABOUR
APPEAL COURT OF SOUTH AFRICA
HELD AT
JOHANNESBURG
REPORTABLE
APPEAL CASE NO: JA29/06
DATE:15/11/2007
In the matter between:
RANDFONTEIN
ESTATES LIMITE
.....................
Appellant
…
..........................................................................
(Applicant
a quo
)
and
THE NATIONAL
UNION OF MINEWORKERS
...
Respondent
…
.......................................................................
(Respondent
a quo
)
JUDGMENT
WILLIS JA:
[1] This appeal concerns the
correct interpretation of the Public Holidays Act 36 of 1994 ("the
Act") which provides that
some twelve specified days in Schedule
1 to the Act shall be public holidays but that whenever a public
holiday falls on a Sunday,
the following Monday shall be a public
holiday.
[2] The appellant is the
employer. It is a mining company which conducts operations at four
gold mining shafts in Randfontein: Cooke
1, Cooke 2, Cooke 3 and
Doornkop. The employer has entered into a “continuous operation
agreement” with the respondent
(the union) in respect of those
shafts at which work operates continuously.
The
agreement stipulates that production at the Cooke 2, Cooke 3 and
Doornkop shafts will be continuous for seven days a week on
all days
of the year excluding public holidays. The relevant clause
pertinently reads as follows:
Production work under continuous
operations (or Conops) will take place seven days a week on all days
of the year, excluding public
holidays.
The agreement provides that
there is normal production seven days a week, excluding public
holidays, according to a shift cycle
of 7-1, 7-1, 7-5 (seven days on,
one day off; seven days on, one day off; seven days on, five days
off). The agreement provides,
further, in clear terms, that Sundays
are treated as normal working days. In summary, in terms of the
agreement, Sundays are treated
as being normal working days but
public holidays are not. On public holidays, unlike any other day of
the year, production stops
and all affected employees are entitled to
a day’s paid leave. The agreement defines “public
holidays” as meaning
“those days declared as public
holidays from time to time by the relevant authority in terms of the
Public Holidays Act,
1994”. It is common cause, indeed, that a
public holiday in terms of the agreement is the same as a public
holiday as defined
in the Act. For the sake of completeness, it
should be noted that the agreements comply with the Basic Conditions
of Employment
Act 75 of 1997 (“the BCEA”) and that, in
terms of those agreements, employees who are covered thereby are not
required
to work on public holidays.
[3] One of the public holidays
designated in Schedule 1 of the Act is Workers' Day. It occurs on
1st May of each year. In 2005,
Workers' Day fell on a Sunday. When
Workers' Day fell on a Sunday in 2005, it was contended by the union
that Sunday, 1st May
2005 was a public holiday. The consequence of
the union's argument was that workers who would ordinarily have
worked on Sunday
1st May 2005 were not obliged to do so but were
entitled to be paid for that day. In addition, the union contended
that workers
were entitled to be paid for the following Monday as
well, without having to work. The employer contended that these
employees
were obliged to work on Sunday 1st May, but not on Monday
2nd May 2005. In the event, the employees did not work either on
Sunday
1st May 2005 or on Monday 2nd May 2005. The employer paid
employees for both days.
[4] A dispute thus arose
between the parties as to the correct interpretation of the Act. In
light of this dispute, the employer
approached the Labour Court for a
declaratory order in terms of s158(1)(a)(iv) of the Labour Relations
Act, 66 of 1995 (“the
LRA”). The court
a
quo
(
per
Francis J) dismissed
the application but made no order as to costs. The court
a
quo
reasoned that
the public holidays specified in Schedule 1 of the Act do not cease
to be public holidays when they fall on a Sunday:
all that happens is
that the Monday following becomes an additional public holiday.
[6] The dispute arose again on
25th December 2005 and 1st January 2006, and will obviously arise yet
again in the future. The employer
considers it important that the
issue be resolved.
This
dispute has a direct effect on the number of days the employees are
required to work, and for which they are entitled to be
paid. The
employer contends that the issue has significant financial
implications for it. Indeed it does. The cost to the employer
in
terms of lost production and additional wages paid has already run
into millions of rands.
Clearly, the dispute has significant implications for both sides.
[7] The purpose of the Act, as
appears
from the long
title, is:
To make provision for a new
calendar of public holidays; to provide that the public holidays be
paid holidays; and for matters incidental
thereto.
Section 1 of the Act provides:
In this Act, unless the context
otherwise indicates-
“
public holidays”
means the days mentioned in Schedule 1 and any other day declared to
be a public holiday under section 2A
Section 2A relates to
additional public holidays declared as such by the President and
proclaimed in the
Gazette
.
It is clearly irrelevant to this dispute.
Section 2 of the Act provides:
2. Days to be observed as public
holidays
(1) The days mentioned in
Schedule 1 shall be public holidays, and whenever any public holiday
falls on a Sunday, the following
Monday shall be a public holiday.
(2) Notwithstanding the
provisions of sub-section (1) any public holiday shall be
exchangeable for any other day which is fixed
by agreement or agreed
to between an employer and employee.
There are twelve days specified
in Schedule 1 to the Act:
New Year's Day 1 January
Human Rights Day 21 March
Good Friday Friday before
Easter Sunday
Family Day Monday after
Easter Sunday
Freedom Day 27 April
Workers' Day 1 May
Youth Day 16 June
National Women's Day 9 August
Heritage Day 24 September
Day of Reconciliation 16
December
Christmas Day 25 December
Day of Goodwill 26 December
[8] Section 5 of the Act
provides that employees shall be entitled to be paid for public
holidays, subject to certain exceptions
which, it is common cause,
are not relevant to this dispute. It reads as follows:
5. Employee entitled to paid
public holidays
(1) Subject to the provisions of
sub-section (2), every employee shall be entitled to –
(a) at least the number of
public holidays as provided for in this Act;
(b) payment for every public
holiday, which payment shall be at least as favourable as the payment
provided for by Section 11 of
the Basic Conditions of Employment Act,
1983 (Act 3 of 1983).
(2) Where an employee, in terms
of any wage regulating measure referred to in Section 1(1) of the
Labour Relations Act, 1956 (Act
28 of 1956), agreement or contract of
employment, is entitled to more than the number of public holidays as
provided for in this
Act, such regulating measure, agreement or
contract of employment shall, insofar as it relates to the number of
public holidays,
not be affected by the provisions of this Act.
[9] The Act does not define
Sundays as being public holidays. Traditionally, Sunday has been and
continues to be treated by many,
if not most, South Africans as some
kind of holiday or “rest day”. In this regard it is
instructive to peruse the respective
judgments in the case of
S
v Lawrence: S v Segal: S v Solberg
1
decided in the Constitutional Court in order to see that court’s
views on Sundays. Broadly, it seems to be a correct summary
that it
recognized Sundays as special days which transcend religious
observance; the fact that the origin of the special status
of Sundays
arose from Christian religious observance is largely irrelevant -
Sundays serve socially useful purposes which extend
well beyond
religious worship.
2
Many sectors of the economy continue to treat Sunday as a public
holiday. If an employer and employees agree that Sundays are
to be
treated as public holidays then, in terms of the provisions of
section 5(2) of the Act, as between the parties, Sundays become
public holidays. That is not the position in the present case.
[10] The Act does not, either
expressly or impliedly, state that where a public holiday falls on a
Sunday, that both the Sunday
and the following Monday shall be public
holidays. The employer contends that to interpret the Act in this way
would require a
“reading in” of the words emphasised
below in Section 2(1) of the Act:
The days mentioned in Schedule 1
shall be public holidays, and whenever any public holiday falls on a
Sunday, the following Monday
shall be a public holiday
and
in that event, both the Sunday and the Monday will be regarded as
public holidays
.
The employer contends that such
a reading in would be manifestly impermissible and relies on the
following cases in advancing this
submission:
S
v Burger
3
;
Rennie NO v Gordon and Another
4
and Standard Bank Investment Corporation Limited v Competition
Commission and Others
5
.
[11] Mr
Pretorius
,
counsel who prepared the heads of argument for the respondent,
submitted that, if the legislature had not intended that both the
Sunday and the Monday should be public holidays when a public holiday
falls on a Sunday, it would have used the word “but”
instead of “and” in section 2 (1) of the Act. He also
submitted that it was significant that section 2 (1) refers to
“a
public holiday” rather than “the public holiday” –
in other words, so he contended, the legislature
clearly intended not
that the Monday be
in
lieu
of what would
otherwise have been the public holiday but
in
addition
to it. Much
the same argument was advanced as to the significance of the
legislature employing the word “whenever any public
holiday
falls on a Sunday” instead of “whenever any of the days
referred to in schedule 1 falls on a Sunday”.
He submitted that
the employer’s case might have been arguable if section 2 (1)
had, instead of its wording in the Act, read
as follows:
“The days mentioned in
Schedule 1 shall be public holidays: provided that whenever any of
the days mentioned in Schedule
1 falls on a Sunday, the following
Monday shall be the public holiday.”
Mr
Pretorius
said that the
Afrikaans text, which was signed by the President, used the word “is”
for the English “shall be”
in section 2 (1) and this, so
the argument went, made it even more emphatic that the following
Monday was an additional public
holiday.
[12] Mr
Pretorius
submitted that the intention of the legislature in providing for
public holidays was to set aside certain days for commemoration
and/or celebration by reason of their historical, social or religious
significance. He made the point that if Freedom Day (27
th
April), for example, fell on a Sunday it would still be celebrated or
commemorated on that day because the Monday, being the 28
th
had no significance.
[13]In
Randburg
Town Council v Kerksay Investments (Pty) Ltd
6
,
The Supreme Court of Appeal reaffirmed the trite proposition that:
The starting point in statutory
interpretation remains an endeavour to ascertain the intention of the
Legislature from the words
used in the enactment. Those words must be
attributed their ordinary, literal, grammatical meaning.
Interestingly, Counsel for both
sides relied on this trite proposition to contend that the
interpretation of the Act quite obviously
favoured their particular
contentions. Mr
Pretorius
pointed out that the employer did not even attempt to argue that the
contention of the union would lead to absurdity. Onerous
for the
employer the union’s interpretation of the Act may be but it is
not absurd. The employer contends that, on the plain
interpretation
the Act, the meaning contended for by the union is strained and
artificial and that it could only be achieved by
reading words into
the statute in an impermissible way. It furthermore contends that,
even if the Act is ambiguous, the result
would be the same because,
where a statute is ambiguous, it is permissible to adopt a purposive
construction. In this regard it
relies on
Public
Carriers' Association and others v Toll Road Concessionaries (Pty)
Limited and Others
7
where
the following was said:
8
Mindful of the fact that the
primary aim of statutory interpretation is to arrive at the intention
of the legislature, the purpose
of a statutory provision can provide
a reliable pointer to such intention where there is ambiguity.
The employer has also relied on
Standard Bank
Investment Corporation Limited v Competition Commission and Others
9
.
Mr
Marcus
,
counsel for the employer, emphasised that, although the words must be
attributed their ordinary meaning, they must also be read
in the
context in which they are used and regard can be had to other
sections of the Act, the Act as a whole and even other legislation
which is
in pari
materia.
See, in
this regard
Azisa
(Pty) Limited v Azisa Media CC and Another
10
In this regard, Mr
Marcus
,
pointed out that, in terms of Section 15(1) of the BCEA, an employer
must allow an employee a weekly rest period of at least 36
hours,
which must include a Sunday, “unless otherwise agreed” It
should be noted, however, that this provision does
not apply to
emergency work in terms of Section 6(2) of the BCEA. The 1997 BCEA
repealed and replaced the Basic Conditions of Employment
Act 3 of
1983 ("the 1983 BCEA"). In terms of Section 10 of the 1983
BCEA, as amended, broadly, an employer could not
require or permit an
employee to perform any work on a Sunday in or in connection with a
factory or shop save with the written
permission of an inspector.
The prohibition did not apply to employees engaged in continuous
activities (as determined in terms
of Section 33 of the 1983 BCEA) or
to specified employees earning less than a prescribed annual amount
or involved in emergency
work. The 1983 BCEA in turn
consolidated
the provisions of a number of sector-specific pieces of legislation.
Prior to the implementation of the 1983 BCEA,
in terms of Section
5(1) of the Shops and Offices Act 75 of 1964, no employer was
entitled to require or permit an employee to
work on any Sunday in or
in connection with a shop or an office unless entitled to do so in
terms of that act or any other law.
In terms of Section 19(1)(d) of
the Factories, Machinery and Building Work Act 22 of 1941 no employer
was entitled to require
or permit an employee to work in a factory on
a Sunday without the authority of an inspector appointed under the
Act. A provision
for exemption was contained in Section 54(1) of the
Act.
[14] The Act repealed and
replaced the whole of the Public Holidays Act 5 of 1952. The
previous Act, like its successor, also made
certain provision for the
consequences of a public holiday falling on a Sunday. Thus, when New
Year's Day fell on a Sunday, the
following Monday was to be a public
holiday. Similarly, when Founder's Day fell on Good Friday, the
following Saturday was to
be a public holiday. In this regard it is
instructive to refer to
Gold
Circle (Pty) Limited and another v Premier, Kwazulu-Natal
11
[15]
The ordinary, literal,
grammatical meaning favours the contention of the union. At first
blush, the alternative argument of the
employer is attractive indeed.
Read in context, it is that where a public holiday falls on a Sunday,
the following Monday is substituted
as a public holiday and is not to
be regarded as an additional public holiday. After all, as noted
above, many, if not most South
Africans, do not work on a Sunday:
surely the intention of the legislature must have been that the
citizenry should not lose the
benefit of a public holiday by reason
of the accident of its falling on a Sunday? That, so the employer’s
argument goes,
was the sole purpose of section 2 (1) of The Act.
Caedit quaestio
,
the union cannot, in the colloquial expression, “have their
cake and eat it at the same time”.
[16] Nevertheless, as Mr
Pretorius
correctly argued, the legislature need not have had a single
intention. Like anyone else, it may have acted by reason of several
or, indeed, mixed intentions. It seems that the following were the
intentions of the legislature:
(i) To set aside days for
commemoration and/or celebration by reason of their historical,
social or religious significance;
(ii) To ensure that employees
do not lose remuneration thereby;
(iii) To ensure that the
majority of South Africans do not lose the additional benefits of a
public holiday by reason of the accident
of its holiday falling on a
Sunday;
(iv) To allow a measure of
flexibility for employers and employees to enter into agreements
varying the recognition of particular
public holidays provided that
the number enjoyed by employees is at least the number provided for
in the Act.
Both Mr
Pretorius
and Mr
Sutherland
(who appeared for the respondent at the actual hearing of the appeal)
were undoubtedly correct in their submission that, with the
exception
of the holidays focused around the Easter week-end, when it comes to
public holidays, it is the
dates
and not the
days
in the week that are important. New Year’s Day provides an
obvious, world-wide, example. The accident of its falling on a
Sunday
has never seriously detracted from the new year being “seen in”
on that day. Those who are particular about
the observance of the
Christian sabbath may subdue or even abandon their celebrations but
this is not the point. The point is that
the significance of New
Year’s Day is that it occurs on 1
st
January every year. If it falls on a Sunday, there is not an
alternative public celebration on the Monday.
[17] By reason of Christian
religious tradition, Easter Day or Easter Sunday is always the first
Sunday after the full moon which
happens next or after 21
st
March each year and if the full moon happens on a Sunday, Easter Day
is the Sunday thereafter.
12
The lunar-relatedness of Easter arises from the linkage between the
Last Supper and the Jewish festival of Passover.
13
Schedule 1 of the Act itself determines Good Friday and Family Day
(what is widely known as “Easter Monday”) by reference
to
“Easter Sunday”. This short religious “detour”
has been made in order to explain why the public holidays
focused
around Easter are quite unlike all other public holidays, including
Christmas: except for the “marker” of 21
st
March, they are not specifically date-related and “move”.
The reasons are that:
(i) Easter Day or Easter
Sunday always falls on a Sunday;
(ii) Good Friday always falls
on the immediately preceding Friday;
(iii) Both Good Friday and
Easter Sunday follow the full moon on or after 21
st
March each year.
The holidays focused around
Easter are, for very particular reasons, the singular exception to
publicly commemorated and/or celebrated
dates being significant and
therefore set aside by a date rather than a day in the week. Mr
Sutherland
correctly submitted that the very exception of the holidays focused
around Easter serves to illuminate and underline the fact that
all
other holidays are date-related.
[18] Mr
Marcus
argued that the primary purpose of the Act was not to set aside
certain specific dates as public holidays but to ensure that
employees
would be paid for the twelve public holidays set out in
schedule 1 to the Act (in terms of section 1 of the Act, the Act
includes
the schedules). Mr
Marcus
relied on the long
title of the Act in advancing this submission. The difficulty,
however, is that the opening words of the long
title refer to making
provision “ for a new calendar of public holidays” and
then goes on to refer to the provision
“that public holidays be
paid holidays”. He referred to the fact that almost every
public holiday is of no relevance
to at least some sectors of the
South African community to advance his argument that the intention
was not so much to set aside
certain specific days but to provide for
a certain number of days for which persons would be paid. This cannot
be. Why bother,
then, to list in the schedule the particular days
appearing therein? It is clear that the days which are public
holidays are the
result of a pragmatic, strategic and indeed
generous-spirited compromise, trying, as far as reasonably possible,
to give recognition
in a broadly inclusive manner to a range of days
which, in a pluralistic society, the different communities may
identify. Obviously,
it is not possible to satisfy everyone. That
Good Friday and Christmas Day are public holidays but not, for
example, important
Jewish, Muslim or Hindu religious days may lead
perhaps to the inference that Christians have been unfairly favoured
but pragmatic
considerations relating to the proportion of Christians
in South Africa, tradition and world norms relating to the
recognition
of Easter and Christmas no doubt influenced the
provisions relating thereto. Here again,
it is useful to refer to the respective judgments in the case of
S
v Lawrence: S v Segal: S v Solberg
14
decided in the Constitutional Court in order to see that court’s
views on Good Friday and Christmas Day as public holidays.
15
Moreover, as Mr
Sutherland
correctly pointed out
,
those who belong to religious minorities or who have no religious
belief at all may, in terms of section 5(2) of the Act, either
collectively or individually, by agreement, trade any of the public
holidays designated in schedule 1 of the Act for other days
which
have special significance for them. The pragmatic approach of the
legislature does not, however, extend so far as to justify
the
inference that the legislature was indifferent as to which days were
to be regarded as public holidays. Mr
Marcus
conceded that if his
interpretation was correct, it would mean that if, for example,
important rallies were planned to celebrate
Freedom Day (27
th
April) in Randfontein, (the centre where the employer is located)
despite the fact that that particular holiday fell on a Sunday,
the
employer would be entitled to insist that an employee who wanted to
attend these celebrations could not do so but must work
on that day
and celebrate the day on the Monday instead. This cannot have been
the intention of the legislature.
[19] In the end, counsel for
both sides agreed that the case turned on whether the legislature
intended:
(i) that the number of paid
public holidays be
limited
to 12 and no more (this favours the employer); or
(ii) that there should be
at
least
12 public
holidays in a calendar year (this favours the union).
If one refers to the fact that
section 2A provides that the President may, by proclamation, declare
additional days as public holidays,
that section 5(1)(a) of the Act
refers, in terms, to “at least” the number of public
holidays provided for in the Act,
that section 5(2) of the Act
provides for agreements to be concluded to provide for more, as well
as the plain reading of section
2 (1), then it is clear that the
latter interpretation – the one favouring the union - must
prevail.
[20] Finally, it should be
noted that, although the relevant agreement between the parties is
comprehensive, and provides that,
ordinarily, a Sunday is an ordinary
working day, it clearly provides that “production work under
continuous operations (or
Conops) will take place seven days a week
on all days of the year,
excluding
public holidays
.”
(Emphasis added). The union has not, either in this agreement or
elsewhere, “contracted out” of this clause.
Section 5 of
the Act thus has, in this regard, no relevance to this case
whatsoever. It needs to be emphasised that not all employers
are
saddled with the burden to be borne by this particular employer. It
all depends upon what one negotiates and agrees with one’s
employees. In this particular case, the employer hitched its
continuous operations agreement to the provisions of the Act. Mr
Marcus
submitted,
probably correctly, that it was a “racing certainty” that
when the agreement was signed, no one had considered
what would
happen, in terms of the agreement, when a public holiday fell on a
Sunday. Unsurprisingly, Mr
Sutherland
vigorously
disagreed. Wherever the truth lies, this case underlines the
importance of negotiating such agreements carefully and
recording
them in clear and precise terms.
[21] The appeal must fail. The
parties agreed that the appropriate order as to costs was that each
party should pay its own costs.
This seems eminently sensible in the
circumstances.
[22] It is proposed that the
following be the order of this court:
The appeal is dismissed. The
parties are to pay their own costs in the appeal.
N.P.
WILLIS
JUDGE
OF APPEAL
I agree.
The appeal is dismissed. The parties are to pay their own costs in
the appeal.
R.M.
M. ZONDO
JUDGE
PRESIDENT
I
agree.
B.
WAGLAY
JUDGE
APPEAL
Counsel
for the Appellant:
G. J Marcus
SC
and, with him,
P.R. Jammy
Attorneys
for Appellant: Brink Cohen Le Roux Inc
Counsel
for the Respondent:
R.T Sutherland SC,
(heads of argument
prepared by
P. J Pretorius
SC ) and, with him,
G.I. Hulley
Attorneys
for Respondent: K.D. Maimane
Date
of hearing: 6
th
November, 2007
Date
of Judgment: 15
th
November, 2007
1
1997 (4) SA 1176 (CC)
2
See the judgment of Chaskalson P at paras [86] to [96] ( Langa DP,
Ackermann J and Kriegler J concurring) and the separate judgment
of
Sachs J at paras [155] to [162] and [170] to [180] (Mokgoro J
concurring) which substantially supported that of Chaskalson
P but
see the minority judgment of O’Regan J (GoldstoneJ and Madlala
J concurring), especially at paras [122] to [128].
3
1963 (4) SA 304
(C) at 308 C-F
4
1988 (1) SA 1
(A) at 22 E-H
5
[2000] ZASCA 20
;
2000 (2) SA 797
(SCA) at para 23
6
1998 (1) SA 98
(SCA) at 107A-B
7
1990 (1) SA 925
(A)
8
At 943G-H
9
[2000] ZASCA 20
;
2000
(2) SA 797
(SCA) at paras 16-22
10
2002 (4) SA 377 (C) at 385 D – 386 E
11
2005 (4) SA 402
(D) at 405C-E
12
See, for example,
The
Book of Common Prayer
13
See, for example, the gospels in the Bible
14
1997 (4) SA 1176
(CC)
15
See the judgment of Chaskalson P, especially at paras [86] and [101]
(Langa DP, Ackermann J and Kriegler J concurring) and the
separate
judgment of Sachs J especially at paras [150], [159] to [164] and
[170] to [180] (Mokgoro J concurring) which substantially
supported
that of Chaskalson P but see the minority judgment of O’ReganJ
(Goldstone J and Madlala J concurring) especially
at paras
especially at paras [122] to [128].