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[2008] ZALAC 33
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Ninian & Lester (Pty) Ltd v Crouse NO and Others (DA8/06) [2008] ZALAC 33 (23 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
2
nd
Respondent
Bargaining
Council
The
Amalgamated Bargaining
3
rd
to 8
th
Respondents
Council
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 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
(b)
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;
(c)
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 on the application for registration.
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
“
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.
The
appeal
[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 in objection had no such right of
appeal and might
have no remedy. It was submitted on behalf of the
appellant that to the extension 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]
To emphasise 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 respondents, Counsel for the
appellant drew our attention to the
fact that the Act does not even
require an objector in sec 29(3) to disclose its interest in the
application for registration.
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 respondent:
(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
Francis
George Hill
Family
Trust v South African Reserve Bank and others 1992(3) SA 91 (A),
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
Francis George Hill Family Trust v
South African Reserve Bank and others
1992 (3) SA 91(A)
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)(i) 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-102I of the report. I do not propose to quote those pages but
whish
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
Eating 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 Beethin
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
Labour Relations Act, 1995
and in respect of the
Labour Court or indeed, this Court. I say this because
sec 3
of that
Act inter alia requires that provisions of the Act interpreted so as
to give effect 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
Labour Relations Act, 1995
. 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(11)(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 the order the appeal is dismissed with costs
including the costs consequent upon the employment of two Counsels.
Zondo
JP
I
agree.
Patel
JA
I
agree.
Waglay
JA
Appearances
For
the appellant
: Mr K J Kemp SC (With him, Ms C. Nel)
Instructed
by
: Deneys Reitz Incorporated,
Durban
For
the respondents : Mr A.M.
Stewart SC (With him, Ms J.F. Nicholson)
Instructed
by
: Cheadle
Thompson & Haysom
Date
of Judgment
: 23 December 2008