Ninian & Lester (Pty)Ltd v Crouse N.O and Others (DA8/06) [2008] ZALAC 16; (2009) 30 ILJ 2889 (LAC) (1 December 2008)

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Ninian & Lester (Pty)Ltd v Crouse N.O and Others (DA8/06) [2008] ZALAC 16; (2009) 30 ILJ 2889 (LAC) (1 December 2008)

IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA
Held
in Johannesburg
Case
no: DA8/06
In
the matter between
Ninian
& Lester(Pty)Ltd
Appellant
And
JT
Crouse N.O
1
st
Respondent
National
Textile Bargaining Council
2
nd
Respondent
The
Amalgamated Bargaining Council 3
rd
to 8
th
Respondents
JUDGMENT
ZONDO
JP
[1]
This is an appeal from a judgment and order of the Labour Court
handed down in an appeal in terms of sec 111 of the Labour
Relations
Act, 1995 (Act 66 of 1995)
("the
Act").
Leave
to appeal to this Court was granted by the Labour Court.
[2]
The appellant is a registered company with limited liability that
operates in the textile industry. The first respondent is
the
registrar of labour relations designated as such by the Minister of
Labour in terms of sec 108 of the Act to perform the
functions of
registrar of labour relations provided for in the Act. One of his
functions is to register bargaining councils,
trade unions and
employers' organisations as provided for in the Act. The second
respondent is a bargaining council that was
the result of the
amalgamation of those bargaining councils which are the third upto
the eighth respondents herein when those
bargaining councils were
deregistered.
[3]
Sec 34 of the Act makes provision for the amalgamation of bargaining
councils. Sec 34(1) provides that any bargaining council
may resolve
to amalgamate with one or more other bargaining councils. When two
or more bargaining councils amalgamate, the resultant
bargaining
council is referred to in the Act as the amalgamated bargaining
council and the bargaining councils which amalgamate
are referred to
as the amalgamating bargaining councils (sec 34(2)).
[4]
Sec 34(2) of the Act provides that the amalgamating councils may
apply to the registrar of labour relations for the registration
of
the amalgamated bargaining council. In terms of sec 34(2) of the Act
the registrar of labour relations must treat an application
by
amalgamating councils for the registration of an amalgamated
bargaining council as an application for registration provided
for
in sec 29. In terms of sec 29(3):
"As
soon as practicable after receiving the application [for
registration], the registrar [of labour relations] must publish
a
notice containing the material particulars of the application in the
Government Gazette. The notice must inform the general
public that
they -
(a) may
object to the application on the grounds referred to in subsection
(4); and
have
30 days from the date of the notice to serve any objection on the
registrar and a copy on the applicant."
[5]
Sec 29(4) requires
"any
person who objects to the application"
to
satisfy the registrar that he has served a copy of his objection on
the applicant. It also sets out the grounds upon which
an objector
is required to base his objection. There are three such grounds set
out in sec 29(4)(a) to (c). They are that:
"(a)
the applicant has not complied with the provisions of this
section;
(b) the
sector and area in respect of which the application is made is not
appropriate;
the
applicant is not sufficiently representative in the sector and area
in respect of which the application is made."
In
terms of sec 29(5) the registrar may require further information in
support of the objection just as he may in terms of sec
29(2)
require further information in support of an application for
registration.
[6]
After the applicant has received a copy of the objector's objection,
he has 14 days within which to respond to such objection
if he
wishes to do so. If he does respond, he must, in terms of sec 29(6),
satisfy the registrar that he has served a copy of
his response on
the objector.
[7]
Once the registrar has received the application, the objection, the
response and any other information that he may have asked
for and
was furnished with, he is required by sec 29(7) to send all of that
information to NEDLAC
"to
consider".
Sec
29(7) does not specify the purpose for which NEDLAC needs to
"consider"
the
information sent to it. It is in sec 29(8) that the Act spells out
NEDLAC's role in this regard. Sec 29(8) provides thus:
"NEDLAC,
within 90 days of receiving the documents
from
the registrar, must-
(a) consider
the appropriateness of the sector and area in respect of which the
application is made;
(b) demarcate
the appropriate sector and area in respect of which the bargaining
council should be registered; and
(c)
report to the registrar in writing."
[8]
Sec 29(9) deals with a situation where NEDLAC fails to agree on a
demarcation of a sector and area for the bargaining council
sought
to be registered. Sec 29(9) reads:
"If
NEDLAC fails to agree on a demarcation as required in subsection
(8)(b), the Minister must demarcate the appropriate
sector and area
and advise the registrar."
Sec
29(10) enjoins NEDLAC and the Minister to give effect to the primary
objects of the Act when either of them demarcates the
appropriate
sector and area. The primary objects of the Act are set out in sec
1(a) to (d) of the Act. It is not necessary to
list them here except
to point out that two of them are the promotion of orderly
collective bargaining and the effective resolution
of labour
disputes.
[9]
Once NEDLAC or NEDLAC and the Minister of Labour, as the case may
be, has played their roles contemplated in sec 29(7) to
(10) of the
Act, they report to, or, advise, the registrar. In the case of
NEDLAC it must report to the registrar in writing
(see 29(7)(c)).
That is reporting the outcome of its consideration of the
appropriateness of the sector and area in respect of
which the
application is made (sec 29(8)(a)) and reporting on its demarcation
of the appropriate sector and area in respect of
which the
bargaining council should be registered (sec 29(8)(b). Obviously,
where NEDLAC was unable to agree on the demarcation,
it will report
that it failed to reach agreement thereon. In such a case the task
of making such a demarcation would then fall
upon the shoulders of
the Minister of Labour who, after doing it, is required to
"advise
the registrar"
(sec
29(9)).
[10]
Once NEDLAC or NEDLAC and the Minister of Labour, as the case may
be, have played their respective roles provided for in
sec 29(7) to
(10), the application for registration reverts to the registrar for
him to make a decision thereon. At that stage
the sector and area
have already been demarcated either by NEDLAC or by the Minister.
The registrar has no decision to make in
that regard. He also has no
power to decide the appropriateness or otherwise of the sector and
area in respect of which the application
is made. That falls within
NEDLAC's power to decide (sec 29(8)(a)).
[11]
What the registrar must do after the matter has reverted to him
and the factors that he must take into account in making
the
decision whether to register or not to register a bargaining council
are set out in sec 29(11) to (15). Sec 29(11) to (15)
read thus:
"11.
The registrar -
(a)
must consider the application and any further
information
provided by the applicant.
(b)must
determine whether....
(i)
the
applicant has complied with the provisions of this section;
(ii)
the
constitution of the bargaining council complies with section 30;
(iii)
adequate
provision is made in the constitution of the bargaining council for
the representation of small and medium enterprises;
(iv)
the
parties to the bargaining council are sufficiently representative of
the sector and area determined by NEDLAC or the Minister;
and
(v)
there
is no other council registered for the sector and area in respect of
which the application is made; and
(c)
if satisfied that the applicant meets the requirements for
registration, must register the
bargaining
council by entering the applicant's name in the register of
councils.
12.
If
the registrar is not satisfied that the applicant meets the
requirements for registration, the registrar —
(a) must
send the applicant a written notice of the decision and the reasons
for that decision, and
(b) in
that notice, must inform the applicant that it has 30 days from the
date of the notice to meet those requirements.
13. If,
within that 30 days period, the applicant meets those requirements,
the registrar must register the application by entering
its name in
the register of councils.
14. If,
after the 30 day period, the registrar concludes that the applicant
has failed to meet the requirements for registration,
the registrar
must-
(a)
refuse to register the applicant; and
(b) notify
the applicant and any person that objected to the application of
that decision in writing.
15.
After
registering the applicant, the registrar must
(a) issue
a certificate of registration in the applicant's name that must
specify the registered scope of the applicant; and
(b) send
the registration certificate and a certified copy of the registered
constitution to the applicant."
[12]
When the registrar makes a decision to register or not to register a
bargaining council in terms of sec 29(13) or 29(14),
as the case may
be, someone may be aggrieved by such a decision. Sec 111 of the Act
confers upon such a person the right of appeal
to the Labour Court.
Sec 111 of the Act reads:
"111
Appeals from registrar's decision
(1) Within
30 days of the written notice of a decision of the registrar, any
person who is aggrieved by the decision may demand
in writing that
the registrar provide written reasons for the decision.
(2) The
registrar must give the applicant written reasons for the decision
within 30 days of receiving a demand in terms of subsection
(1).
(3) Any
person who is aggrieved by a decision of the registrar may appeal to
the Labour Court against that decision, within 60
days of-
(a) the
date of the registrar's decision; or
(b) if
written reasons for the decision are demanded, the date of those
reasons.
(4)
The
Labour Court, on good cause shown, may extend the period within
which a person may note an appeal against a decision of the

registrar."
[13]
In this case, as I have already said above, the third to the
eighth respondents resolved to amalgamate to form one bargaining

council as they are permitted to do by sec 34(1) of the Act. They
amalgamated and formed the second respondent. An application
was
then made to the first respondent to register the second respondent
as a bargaining council in terms of sec 34(2) read with
sec 29 of
the Act. After receiving the application, the first respondent
published a notice in the Government Gazette in terms
of sec 29(3)
giving the material particulars of the application and informing the
general public as he was required to by sec
29(3) that they
"(a)
may object to the application on the grounds referred to in
subsection (4); and (b) have 30 days from the date of the
notice to
serve any objection on the registrar and a copy on the applicant."
[14]
Pursuant to the notice published by the first respondent in terms of
sec 29(3), the appellant lodged with the registrar an
objection to
the application for registration and served a copy thereof on the
applicant. The objection was on various grounds
which I do not
propose setting out herein. It is common cause that the appellant
falls outside the second respondent's scope
of registration and,
therefore, of operation as well. Indeed, the appellant, as already
stated above, operates its business in
the textile industry and not
in the industry in which the second respondent will operate. In
fact, the appellant also did not
fall within the respective scopes
of registration of the third to the eighth respondents before they
were deregistered. They
were deregistered upon the registration of
the second respondent. It is also common cause that the appellant
had no
locus
standi,
as
that term is understood at common law, in the application for the
registration of the second respondent. Its only basis for
its claim
that it was entitled to be involved in this litigation is based on
its mere status as a member of the general public
who filed an
objection as contemplated by sec 29(3) of the Act and on the basis
of no other interest.
[15]
In due course the first respondent decided to register the second
respondent and deregistered the third to the eighth respondents.
The
appellant was unhappy about this decision and purported to note an
appeal to the Labour Court in terms of sec 111 of the
Act. The third
up to the eighth respondents opposed the appeal. In support of their
opposition they inter alia raised the point
that the right of appeal
provided for in sec 111 of the Act was not available to the
appellant. The basis for this point was
that sec 111(3) only
conferred that right to "any person who is aggrieved by a
decision of the registrar" and that
the appellant was not such
a person. The Labour Court upheld this point and dismissed the
appellant's appeal. The appellant then
applied to the Labour Court
for leave to appeal. Leave to appeal was granted, hence this appeal.
The
judgment of the Labour Court
[16]
I have already said above that the Labour Court dismissed the
appellant's appeal on the grounds that the appellant was not
a
"person
who is aggrieved"
by
the first respondent's decision as required by sec 111 of the Act.
The basis of the Labour Court's decision is the decision
of the
Appellate Division in
Francis
George Hill Family Trust v South African Reserve Bank and Another
1992(3) SA 91(A),
in
particular the passage at 98 H thereof. I shall refer to this case
shortly.
[17]
Before us the second and further respondents persisted in their
contention that the appellant fell outside the phrase
"person
who is aggrieved by a decision of the registrar..."
appearing
in sec 111(3) of the Act and, therefore, had no right to appeal to
the Labour Court against the first respondent's decision
to register
the second respondent. The appellant persisted in its contention
that it fell within that category and that it did
have such a right.
[18]
In support of its contention the appellant made a number of points.
The appellant argued that there was no logic in the proposition
that
it was not an aggrieved person as contemplated by sec 111(3) when in
fact it, as a member of the general public, had been
invited in
terms of sec 29(3) to object to the second respondent's
registration. Counsel for the appellant submitted that it
would be
strange if the legislature would confer on the appellant the right
to object but once it had objected and its objection
had not been
dealt with properly, it would not be able to appeal to the Labour
Court as provided for in sec 111 when another
objector could appeal
under the section. He also submitted in his heads of argument that
it would amount to unfair discrimination
if the interpretation that
was adopted with regard to who an aggrieved person is under sec
111(3) was one in terms of which an
objector who in effect has a
legal and substantial interest in the matter as that term is
normally understood will have a right
to appeal if his objection has
not been upheld but an objector who has no such interest but is a
member of the general public
who responded to a Government Notice in
terms of sec 29(3) of the Act by lodging an objection had no such
right of appeal and
might have no remedy. It was submitted on behalf
of the appellant that to the extent that it may be argued that the
appellant
had the right to review, this would be inadequate and
there was no justification in law for such a submission that it had
only
a right of review but no right of appeal in terms of sec 111 of
the Act.
[19]
Counsel for the appellant drew our attention to the fact that the
Act does not require an objector under sec 29(3) to disclose
its
interest in the application for registration. He submitted that this
was an indication that the legislature did not intend
to restrict
the category of people falling within the term
"person
who is aggrieved by a decision of the registrar
..."
to those persons who at common law would have
locus
standi
in
an application for registration as was contended for by the second
and further respondents. The argument was that, if the legislature

intended such a restriction, it would have required each objector to
disclose its interest when submitting its objection.
[20]
On behalf of the second and further respondents it was submitted
that the meaning to be given to the phrase
"person
who is aggrieved by a decision of the registrar..."
in
sec 111(3) of the Act is that it is a person who has a legal
grievance or a person who at common law would be said to have
locus
standi in the matter. It was submitted that the appellant fell
outside of that category and, accordingly, had no right
of appeal in
terms of sec 111(3) of the Act. In support of this contention the
second and further respondents:
(a)
referred to a number of cases including the Francis George case
referred to earlier in which the courts have defined an
aggrieved
person effectively as a person who has
locus
standi
in
the matter and urged that the same meaning be given to the aforesaid
phrase in sec 111(3) of the Act;
(b) submitted
that to give the concept of an aggrieved person a meaning other than
that of a person who has locus standi at common
law in the matter
would amount to interpreting legislation in a manner that alters
common law - something that courts do not
do lightly.
(c) submitted
that courts exist to adjudicate concrete disputes and, since the
appellant did not have locus standi as it is known
at common law in
this matter, if it was held to have a right to appeal to the Labour
Court in this matter, that would be an interpretation
that would
enable someone to engage the attention of the Court in regard to a
matter in respect of which there is no concrete
dispute involving
such a person and the court should not lightly adopt an
interpretation that would have such a consequence.
It
seems apposite to begin a consideration of the submissions with a
discussion of the decision in the
Francis
George case,
a
case on which the Court a quo also relied and to which we were
referred by Counsel for the second and further respondents.
[21]
In the
Francis
George
case
the appellant and the Hahn Family Trust
("the
HFT")
owned
all the issued shares in Phoenix Chemicals (Pty) Ltd, the second
respondent.
Sec 9
of the
Currency and Exchanges Act 9 of 1933
empowered the State President to make regulations in regard to any
matter relating to currency, banking or exchanges. Such regulations

could provide inter alia for the attachment by the Treasury of money
suspected of having been involved in any act or omission
suspected
of constituting a contravention of the regulations irrespective of
in whose possession such money was.
Regulation 22E
of those
regulations provided that the Minister of Finance could delegate the
power to attach money as aforesaid to any person.
The Minister had
delegated such power and assigned duties connected therewith to any
Deputy Governor of the Reserve Bank. A Deputy
Governor of the
Reserve Bank had issued a notice of attachment attaching 50% of the
monies deposited by Phoenix Chemicals (Pty)
Ltd in various accounts
with the Trust Bank of Southern Africa Ltd.
[22]
Regulation 22D
, referred to above, provided that "...
any
person who feels himself aggrieved by the attachment of money ..."
under
various paragraphs of regs 22 A or 22 C (which included those
paragraphs in terms of whereof the Reserve Bank had attached
the
monies of Phoenix), "...
may
bring an application in a competent Court for the review of any such
attachment ... and any such Court may set aside such
attachment ...
on the grounds set out in the provisions of Para (d)(1) or (iii) of
s 9(2) of the Act."
[23]
The appellant brought an application on motion in the Transvaal
Provincial Division of the High Court against the Reserve
Bank,
Phoenix Chemicals (Pty) Ltd and the HFT. The orders the appellant
sought were: (1) leave to proceed in the application
"by
derivative action"
on
behalf of Phoenix, and (2) an order reviewing and setting aside the
notice of attachment and costs. Neither Phoenix nor HFT
opposed the
application. However, the Reserve Bank opposed the application.
[24]
In the Court of first instance the question had arisen whether the
appellant was a
"person
who feels himself aggrieved by the attachment of money
..."
as contemplated in reg 22D. This question was raised against the
background that ordinarily, if a company is wronged,
it is the
company, and not its shareholder, which has a right to bring legal
proceedings concerning that matter. McCreath J,
who heard the matter
in the Court of first instance, dismissed the application. He found
it unnecessary to decide the question
whether or not the appellant
was entitled to approach the court by way of a derivative action.
McCreath J assumed in favour of
the appellant that it was entitled
to bring the application.
[25]
In the Appellate Division Counsel for the appellant adopted as his
main argument the contention that the appellant as the
50%
shareholder of Phoenix Chemicals (Pty)Ltd was a
"person
who feels himself aggrieved"
by
the attachment within the meaning of that phrase in reg 22D.
Accordingly, the Appellate Division had to consider whether the

appellant fell within the ambit of that phase as used in reg 22D.
Hoexter JA, with whom Nicholas and Harms AJJA agreed, concluded
that
the appellant was not a
"person
who feels himself aggrieved"
by
the attachment of Phoenix' monies in the various bank accounts. That
was the majority judgment.
[26]
In coming to the conclusion that the appellant was not an aggrieved
person in terms of the regulations, Hoexter JA referred
to a long
line of cases in which courts had considered the phrase
"aggrieved
person."
He
considered all the cases to which he referred at 98B-1021 of the
report. I do not propose to quote those pages but wish to
point out
that there can be no doubt from a reading of what Hoexter JA had to
say in those pages that he gave the issue thorough
and careful
consideration. I think that it would not be inaccurate to say that
the Appellate Division held that the cases tended
to the view that
an aggrieved person is not someone who is simply disappointed at a
certain decision but is a person who has
a legal grievance. At 102C
Hoexter JA, writing for the majority, said:-
"Leaving
aside the significance of statutory context in particular cases, the
tenor of decided cases in South Africa points,
I think, to the
general conclusion that the words 'person aggrieved' signify someone
whose legal rights have been infringed —
a person harbouring a
legal grievance. The current of judicial interpretation would appear
to run in the same direction in the
decisions of English courts -
see the remarks of Donovan J in Ealing Corporation v Jones (supra at
392)."
[27]
In the second sentence after the above passage Hoexter JA referred
to "...
the
South African decisions which require a legal grievance before the
objector can qualify as a 'person aggrieved."
Hoexter
JA said at 102 F-G that
"(T)he
critical question in the present case is whether the attachment by
the Reserve Bank of the assets of Phoenix represents
an invasion of
the legal rights of the [appellant]".
[28]
Kumleben JA gave a minority judgment in the Francis George Hill
Family Trust matter. Hefer JA concurred in that judgment.
Kumleben
JA disagreed with the majority that the reference to
"a
person who feels himself aggrieved by the attachment of money"
in
reg 22D was restricted to a person who has a legal grievance or a
person whose legal rights have been infringed. He took the
view that
that was a restricted meaning of the phrase but that the correct
meaning of the phrase would include a person whose
interest fell
short of a legal interest. In that case Kumleben JA said at 106D-E
that in a case such as the Francis George case
a shareholder would
have every reason to feel aggrieved in the legal sense. Kumleben JA
held that he would have upheld the appellant's
appeal. Kumleben JA
said at 104J - 105A that, although examples of cases had been given
in which the phrase
"aggrieved
person"
or
"person
aggrieved"
had
been given the meaning that Hoexter JA gave to the phrase in the
majority judgment, cases in which a wider meaning had been
given to
the phrase were ready to hand. He referred to certain cases at 105A
- I. I am not persuaded that he was right. I find
the majority
judgment much more persuasive.
[29]
It would seem to me that, if one were to
"import"
into
the present matter the question which the Appellate Division
formulated in the Francis George case at 102 F-G to decide whether

or not the appellant in that case was an aggrieved person, which I
have quoted in par 27 above, one would have to say in the
present
matter: the critical question is whether the registration of the
second respondent by the first respondent represented
an invasion of
the legal rights of the appellant. Of course, the answer would be:
No! That being the case, the conclusion would
be that the appellant
falls outside the phrase
"person
who is aggrieved by a decision of the registrar"
in
sec 111(3) of the Act. That would be if one adopts the same meaning
of
"aggrieved
person"
in
regard to sec 111(3) as was adopted by the Appellate Division in the
Francis George matter. The question that arises is whether
or not
that is the meaning of an
"aggrieved
person"
that
should be adopted with reference to sec 111(3). For the reasons that
follow I think it is.
[30]
In my view the starting point in considering the contending
submissions made by the parties on the meaning of the aforesaid

phrase in sec 111(3) of the Act is the principle that courts of law
exist to deal with concrete disputes and not pronounce on
abstract
issues and advise on differing contentions. Counsel for the second
and further respondents made a submission to this
effect. In support
thereof he referred to Geldenhuys and Neethling v Beuthin
1918 AD
426
at 441 where the Appellate Division said:
"...Courts
of Law exist for the settlement of concrete controversies and actual
infringements of rights, not to pronounce
upon abstract questions,
or to advise differing contentions, however important."
He
submitted that that is the rationale for
locus
standi.
In
my view a statute must, as far as possible, be interpreted in a way
that does not mean that courts must decide abstract or
academic
issues or give legal advice. An Act should not lightly be
interpreted so as to allow persons who have no
locus
standi
to
bring to Court actions and applications for the courts to make
decisions on abstract or academic issues. As far as possible
a
statute must be construed in a manner that allows persons who have
genuine, real and concrete disputes to bring their disputes
to the
Courts for the courts to pronounce on such disputes. This has to be
so because courts play a vital role in the maintenance
of stability
in society which they do by adjudicating and resolving disputes
which exist among members of society, on the one
hand and, on the
other, those in authority including various spheres of government.
If, therefore, the Courts' time to adjudicate
and resolve such
concete and real disputes is going to be taken up by the Courts
considering and making all kinds of pronouncements
desired by
various members of society on abstract or academic questions, this
will have an adverse impact on those members of
society who have
real and concrete disputes and who want their disputes resolved.
Those real and concrete disputes will be subjected
to long delays
before they receive the attention of the courts because the courts
will be busy with abstract and academic issues
or will be busy
effectively giving legal advice through judgments to persons who
have no concrete disputes to be adjudicted.
[31]
Before a court would adopt an interpretation of a statute that would
have the effect of burdening courts with cases that
do not relate to
concrete disputes, the legislation would have to reveal such
intention on the part of the legislature in very
clear terms. The
concern about an interpretation that would have such a result would
even be greater where such interpretation
is suggested in relation
to a provision in the Act, and in respect of the Labour Court or
indeed, this Court. I say this because
sec 3 of that Act inter alia
requires that in interpreting any provisions of the Act effect
should be given to its primary objects
and one of its be primary
objects is the promotion of the effective resolution of labour
disputes. The effective resolution of
disputes entails an
expeditious resolution of disputes. The Labour Court's ability to
play its role in providing an effective
resolution of disputes in
line with the relevant primary object of the Act would be seriously
undermined if it began to entertain
matters brought to it by persons
and organisations who have no
locus
standi
in
the matters they brought to that Court. The same would apply to this
Court with regard to subsequent appeals on those matters.
I do not
think that the legislature has made it clear in sec 111 that it
intends that the Labour Court should be burdened with
appeals by
persons who have no
locus
standi
as
that term is understood at common law or no legal and substantial
interest or when such persons' rights are not affected in
any
adverse way by the relevant decisions of the registrar.
[32]
As Counsel for the second and further respondents submitted, where a
phrase has been given a certain meaning by the Courts
and Parliament
uses such a phrase in a later Act, Parliament is presumed to have
intended such phrase to bear the meaning that
has previously been
given to the phrase by the Courts. In this case, as the decision of
the Appellate Division in the Francis
George case reveals, the
reference to an aggrieved person or a person who is aggrieved had
been interpreted judicially in a number
of cases before the passing
of the Act. Accordingly, Parliament must be taken to have intended
the meaning that the Courts had
previously given to the phrase to
apply to the same phrase in sec 111(3). That is that a "...
person
who is aggrieved by a decision of the registrar"
in
sec 111(3) is a person who has a legal grievance or whose legal
rights may be adversely affected by the decision against which
they
seek to appeal.
[33]
I am inclined to agree with Counsel for the second and further
respondents that the explanation as to why Parliament saw
fit to
give members of the general public the right to object in sec 29(3)
but not the right to appeal to the Labour Court in
terms of sec
111(3) when their objections are dismissed is that the legislature
probably wanted to ensure that the general public
could have a say
on which entities get registered and in respect of what sectors and
areas. In other words it was some kind of
participatory democracy
extended to the general public without the legislature wanting to
put objectors who are members of the
general public on the same
level as those objectors who have
locus
standi
in
the matter as that term is understood at common law.
[34]
It is true that the meaning I have given to the phrase
"...person
who is aggrieved by a decision of the registrar"
results
in those objectors who have a legal and substantial interest in the
registration of a bargaining council having a right
of appeal to the
Labour Court when the registrar rejects their objections and
registers the bargaining council and those objectors
who do not have
such interest but are simply members of the general public having no
such right of appeal despite the fact that
they, too, are objectors
in terms of sec 29(3). As I have said above the two classes of
objectors are treated differently because
they are different. They
cannot be treated in the same way. The one category has no rights
which are affected in any adverse
manner by the decision of the
registrar whereas the other category of objectors has legal rights
which are or may be affected
adversely by the registrar's decision.
For the one category of objectors there is really nothing at stake
but for the other category
there may be a lot at stake. Accordingly,
the one category has a right of appeal and the other has no such
right.
[35]
Does this mean that the appellant, despite being an objector in
terms of sec 29(3), has no remedy against the decision of
the
registrar rejecting its objection? Yes, in my view that is what it
means and there is nothing strange about that because
the decision
of the registrar to register the second respondent which the
appellant wants to challenge in the Labour Court -
be it in an
appeal or on review - is a decision that does not adversely affect
its rights or interests. The appellant is seeking
to engage the
courts in an academic exercise. And the meaning I have adopted in
relation to sec 111(3) is one that shields the
courts from those
like the appellant who seek to engage the courts in academic
exercises. As Counsel for the respondents submitted
on the strength
of Ex parte Sidebotham (1880) 14 ChD458 (CA) at 465 and the Francis
George case, supra, at 99A-B, the right to
appeal is not based upon
disappointment of a benefit which a party may have received if some
other decision had been made. Indeed,
as it was said in
Oudekraal
Estates (Pty)Ltd v City of Cape Town and others
2004 (6) SA 222
(SCA)
at
245 H-246A, even if there is illegality, such illegality will be set
aside
"if
the right remedy is sought by the
right
person
in the right proceedings"
(my
underlining).
[36]
Finally I note that in terms of sec 29, if the registrar is
satisfied that the applicant meets the requirements for
registration,
he is required by sec 29(1 l)(c) to register the
applicant without further interaction with the objector about its
objection.
Of course, on my construction of sec 111, there will be a
right to be heard
de
novo
in
the sec 111 appeal for those objectors who have a legal and
substantial interest in the matter of the registration of the
bargaining council but there will be no hearing for those who have
no such interest. Accordingly, there is no obligation provided
for
on the part of the registrar to discuss the matter with an objector
whose objection he is rejecting by virtue of the fact
that he is
registering the applicant. However, I also note that, when the
registrar decides not to register the bargaining council,
in other
words, if he upholds the objector's objection in terms of sec
29(14)(a), the objector gets notified. It is rather strange
that,
when his objection is rejected, the objector has no right to be
notified thereof but when his objection is upheld, he is
given a
right to be notified thereof. In my view this can only be explained
on the basis that the legislature realised that,
if the objector was
notified that his objection had been rejected, this could lead to
further interaction from him which was
sought to be avoided whereas,
if he was notified that his objection was upheld, he would be happy
and would not be expected to
take any further steps. In my view this
is an indication that the legislature intended to limit the role of
an objector who is
not also an aggrieved person as contemplated in
sec 111 of the Act to simply bringing to the attention of the
registrar whatever
objection there could be to the applicant's
registration and only allow an objector to go beyond lodging an
objection e.g. noting
an appeal in terms of sec 111 of the Act if he
meets other requirements, namely, if he has
locus
standi
as
understood at common law or, put differently, if he has a legal and
substantial interest in the registration or non-registration
of, for
example, the bargaining council.
[37]
In the light of the above I am of the view that the appeal falls to
be dismissed. The requirements of law and fairness dictate
that the
appellant should pay the second and further respondents' costs
including the costs occasioned by the employment of two
Counsel.
[38]
In the premises I make the following order:
1.
The appeal is dismissed with costs including the costs consequent
upon the employment of two Counsel.
Zondo
JP
I
agree.
Patel
JA I agree.
Waglay
JA