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[2012] ZALAC 38
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National Bargaining Council for the Road Freight v Marcus NO and Others (JA70/10) [2012] ZALAC 38; (2013) 34 ILJ 1458 (LAC) (12 December 2012)
Reportable
REPUBLIC OF SOUTH AFRICA
IN THE LABOUR
APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case no: JA70/10
In the matter between:
NATIONAL BARGAINING COUNCIL FOR
THE ROAD FREIGHT INDUSTRY
..................................................................
Appellant
and
COMMISSIONER M H MARCUS N.O.
...............................................
First
Respondent
COMMISSIONER FOR CONCILIATION,
MEDIATION AND ARBITRATION
................................................
Second
respondent
RICHARDS RENTALS (PTY) LIMITED
............................................
Third
Respondent
CORAM:
WAGLAY, DJP, ZONDI,
AJA
et
MOLEMELA, AJA
Delivered: 12 December 2012
________________________________________________________________
JUDGMENT
________________________________________________________________
MOLEMELA, AJA
Introduction
[1] This is an
appeal against the judgment of the Labour Court
1
dismissing an
application to review and set aside a demarcation award issued by the
first respondent, a commissioner, which found
that the business of
the third respondent did not fall within the appellant’s
registered scope.
Background
[2] The appellant is a bargaining
council, established in terms of section 27 of the Labour Relations
Act 66 of 1995 (‘LRA’)
and registered in terms of section
29 of the LRA for the road freight industry. The appellant’s
industry as defined in its
Certificate of Registration is “the
transportation of goods for hire or reward by means of motor
transport in the Republic
of South Africa”. The third
respondent is in the business of hiring out tipper-trucks and drivers
to its clients in the mining
and construction industries. These
tipper-trucks are used to convey landfill and aggregate rubble
generally within the relevant
site areas but occasionally to and from
landfill or dumping points outside such sites. The third respondent
charges a rental fee
for both the truck and the driver. It does not
charge per load (of the landfill and aggregate) or per distance
travelled. At the
arbitration proceedings conducted under the
auspices of the second respondent, the third respondent contended
that the nature of
its activities placed it more appropriately within
the mining or construction industry and not under the appellant’s
council
and thus sought an award declaring that it was not subject to
the appellant’s jurisdiction as it did not fall within the
appellant’s industry definition.
[3] Pursuant to
arbitration proceedings, the first respondent rendered an award
under
section 62 of the LRA
in terms of which he found
that the third respondent did not fall within the appellant’s
industry definition. The appellant
took the first respondent’s
award on review to the court
a quo
.
Those proceedings were not opposed by any of the respondents. The
Court
a quo
ruled
against the appellant. The appellant lodged an appeal attacking the
court
a quo’
s
judgment on various grounds. Only the third respondent is opposing
the appeal. The main issue on appeal is whether the third respondent
falls within the appellant’s registered scope.
[4] During the hearing of the appeal
this Court enquired from counsel as to whether the award under
consideration had been a subject
of consultation with National
Economic Development and Labour Council (“NEDLAC”) as
contemplated in section 62(9) of
the LRA and whether it was
appropriate to entertain an appeal emanating from a review of an
arbitration award that was only provisional.
This question was
prompted by the fact that the first respondent termed the award a
‘Provisional Demarcation Award’
(issued subject to
consultation with NEDLAC). It turned out that there was uncertainty
as to whether such consultation had taken
place. The court
accordingly issued a directive requiring both parties to investigate
whether such consultation had taken place
and thereafter to submit a
report on the matter to the court.
[5] From the documentation filed by
both parties the following appears to be common-cause:
5.1. That pursuant to the award being
issued by the first respondent, the Commission for Conciliation
Mediation and Arbitration
(CCMA) (second respondent) forwarded the
award to the parties under a covering letter stating as follows:
‘Please find attached
herewith Provisional Award together with
proof of consultation with NEDLAC in terms of section 62(9) of the
LRA 66, 1995 for your
attention.’
5.2. It appeared that notwithstanding
the CCMA’s aforementioned letter, consultation with NEDLAC had
not yet taken place even
though NEDLAC had received the provisional
award in October 2008.
5.3. In response to the parties’
enquiries, NEDLAC, in a letter dated 20
th
December 2011
indicated that it was in support of the first respondent’s
award. The CCMA, in a letter dated 2
nd
March 2012,
indicated that the provisional award had become final without any
changes.
5.4. The status of the award and
consultation with NEDLAC had never been raised as an issue by any of
the parties.
[6] The appellant contends that now
that the provisions of section 62(9) of the LRA have been complied
with, this Court is at liberty
to deal with the merits of the appeal.
The third respondent, on the other hand contends that the
investigations have revealed that,
prior to the proceedings at the
court
a quo
and the prosecution of the appeal, there had been
no compliance with the provisions of section 62(9) of the LRA, with
the result
that both the application for review and the prosecution
of the appeal were premature, thus warranting the dismissal of the
appeal.
Given the circumstances of this case, especially given the
misleading content of the letter sent by the
second
respondent
to the appellant and the third respondent advising them that
consultation with NEDLAC had already taken place, it would
serve the
interests of justice to consider the merits of the appeal as opposed
to dismissing it on a technicality. This inclination
is made more
appealing by the fact that both NEDLAC and the CCMA now consider the
award under consideration to be a final award.
[7] I now turn to deal with the merits
of the appeal. The grounds of appeal as gleaned from the Notice of
appeal are as follows:-
that the court
a quo
erred in
dismissing the review application relying on the concept of deference
to the decision of the decision-maker as espoused
in the case of
Coin
Security (Pty) Ltd v CCMA & Others
(2005) 26 ILJ 849 (LC)
(“the
Coin Security
judgment”), instead of finding
that there was no place for deference given the substantial
misconceptions and material errors
of law committed by the first
respondent; that the court
a quo
erred in misconstruing the
appellant’s reliance on the
Coin Security
judgment and
ought to have found that the aforesaid judgment made it clear that
there was no basis for a restrictive interpretation
of the industry
definition as account should be taken of collective bargaining
imperatives in interpreting the industry definition
itself; that the
court
a quo
ought to have found that the first respondent
committed a material error of law by following a restrictive approach
and instead
found that the first respondent had not applied a
restrictive approach; that the court
a quo
erred in dismissing
the second ground of review on the basis that ‘the applicant
seeks to have a demarcation made on the
basis not of an association
of the third respondent and its employees but the third respondent’s
employees (the drivers)
and its clients’ instead of finding
that the transportation activity was undertaken by the third
respondent itself; that
the court
a quo
adopted an erroneous
approach to a demarcation dispute and misconceived aspects of the
industry definition by failing to find that
the only reason the third
respondent earned money was because its clients made use of the third
respondent’s tipper trucks
and its drivers for the purpose for
which they were designed and employed respectively, viz
transportation of heavy loads.
[8] As stated before, the appellant’s
registered scope is “the transportation of goods for hire or
reward by means of
motor transport in the Republic of South Africa”.
Its Certificate of Registration defines “transportation of
goods”
as follows:
‘
For
the purposes hereof the ‘transportation of goods’ means
the undertaking in which employers and their employees are
associated
for carrying out one or more of the following activities for hire or
reward:
The
transportation of goods by means of motor transport;
The
storage of goods, including the receiving, opening, unpacking,
packing, dispatching and clearing of, or accounting for of
goods
where these activities are ancillary or incidental to paragraph (i)
above;
The
hiring out by labour brokers of employees for activities or
operations which ordinarily or naturally fall within the
transportation
of goods irrespective of the class or undertaking,
industry, trade or occupation in which the client is engaged as an
employer.’
The appellant maintains that the third
respondent falls within paragraph (i) above of the industry
definition.
[9] The following important facts were
common cause at the arbitration:
(i) That the third respondent’s
trucks are used to convey landfill and rubble, known as “aggregate”,
both within
mining and construction sites and to and from dumping
points outside such sites on the instructions of its clients.
(ii) That the third respondent’s
trucks are specialised vehicles designed for the carrying of heavy
goods such as landfill
and aggregate.
(iii) The third respondent is in the
service industry. The hiring out of trucks and drivers for the
purpose of conveying landfill
and aggregate is the service provided
by the third respondent to its clients. The third respondent has 23
tipper trucks and 23
driver operators. The trucks are hired out to
the third respondent’s clients with a qualified driver at a
flat rate for an
agreed period, with the cost of the driver being
included in the flat rate charged.
(iv) If the third respondent did not
fall under the appellant’s jurisdiction, it would not fall
under any bargaining council
or be subject to any collective
agreements.
The arbitration award
[10] The first respondent stated in
his award that he would adopt the approach to demarcation as adopted
by the court in the case
of
Greatex Knitwear (Pty) Ltd v Viljoen
and Others, NNO
1960 (3) SA 338
(T) (“
Greatex Knitwear
judgment “) at 344H – 345D. Following the industry
definition, the first respondent recorded that for the third
respondent
to fall within the definition and the scope of the
appellant, it would have to be found that the third respondent, ‘in
association
with its employees, is in the business of transporting
goods for its clients in its tipper trucks for hire or reward. The
following
extract of the first respondent’s award is
significant:
‘
Accepting
for purposes of this demarcation that the aggregate and landfill
material conveyed by the [appellant’s] tippers
both on and off
site can constitute “goods” capable of being transported
within the meaning of the [appellant’s]
industry definition,
can [third respondent] be said to be engaged in association with its
drivers in the business of transporting
aggregate for hire or reward?
Frankly I do not see how it can. The uncontroverted evidence before
me discloses that [third respondent]
incurs no obligation under its
contract with its clients to transport aggregate and the like. It is
the clients who engage in the
activity of transporting the material,
making use of the truck and driver hired from the [third respondent]
to do so. That the
client makes use of the [third respondent’s]
driver for this purpose does not affect this conclusion. That
arrangement derives
from the requirement that these tippers must be
driven by specially trained drivers with special permits and
certification….Goldman’s
uncontroverted testimony is
that if the contract obliged the [third respondent] to transport
material for the client, [third respondent]
would levy the client
with transportation charges which would have to be calculated per ton
or cubic metre of the material being
transported and with reference
to the distance travelled. The sample invoices to clients tabled in
[the third respondent’s]
bundle contain no such charges for
transportation of material; they reflect only a hiring charge whereby
the trucks are hired out
at a minimum daily rate. The standard terms
and conditions of hire of the Contractors Plant Hire Association
tabled in the bundle
which are unrelated to haulage or transportation
contracts are incorporated in the clients’ contracts….There
is a
considerable distinction between an activity involving the
hiring out of vehicles to clients at a daily rate or hire charge (as
in the ordinary car hire business) and one requiring the ferrying or
cartage of specified goods or passengers to a destination.
It is the
latter form of activity, described as one of road freight, cartage or
motor transport (goods), that is contemplated in
the definition of
the [appellant’s] industry and scope. The former activity,
described by the [third respondent] as one of
plant or vehicle hire,
does not entail the hirer undertaking obligations involving it in
freight or transportation activities.
It merely requires that the
vehicle be made available to the client for the latter’s use at
its discretion…The transportation
activities ensuing from the
implementation of the contract are undertaken by the client, not by
the [third respondent]. I agree
with Mr Goldman that the fact that
these are undertaken by the client making use of the services of a
driver supplied by the [third
respondent] does not alter the nature
of the activity from one of hiring to one of transportation…
The term “hire”
as used here does not refer to the hiring
activities undertaken by the [third respondent] but to activities
involving “the
transportation of goods by means of motor
transport“. The words “for hire and reward” in the
industry definition
qualify the activity of “transportation of
goods by means of motor transport”. The activity of hiring out
plant or
vehicles for rental is not one contemplated in the road
freight definition, nor was it ever the [appellant’s] case that
it
was. [Appellant’s] case was always premised on the
contention that [third respondent] is engaged for hire or reward in
the
business of transportation of goods by means of motor transport
in terms of the industry definition, which requires the [third
respondent] to be rewarded for the activity of transportation of
goods by means of motor transport in terms of the industry definition
in the respondent’s certificate of registration.’
[11] It is clear from the
above-mentioned extract that the issue pertaining to whether the
appellant fell within the appellant’s
registered scope turned
on the question whether the third respondent and its employees could
be said to be associated for hire
or reward in the transportation of
goods. The first respondent answered this question in the negative.
The reasoning adopted by
the first respondent was that the third
respondent did not oblige its clients to use its vehicles for any
specific purpose. He
thus likened the third respondent’s
business to the “ordinary car hire business” where the
car is made available
to the client for the latter’s use at its
discretion, without the obligation to use it for any particular
purpose. The first
respondent rejected the appellant’s
contention that the words “for hire or reward” in the
industry definition
bring the third respondent within the appellant’s
registered scope. According to the first respondent the term “hire”
did not refer to the hiring activities undertaken by the third
respondent, but to activities involving “the transportation
of
goods by means of motor transport” and thus the activity of
hiring out plant or vehicles for rental, was not one contemplated
in
the road freight industry definition. The first respondent concluded
that the third respondent’s business did not fall
within the
appellant’s registered scope.
Proceedings in the labour court
[12] The appellant sought to review
the first respondent’s award on three grounds,
viz
:
(i) That the first respondent’s
approach constituted an error of law as it was unjustifiably
restrictive and also failed to
take account of collective bargaining
imperatives that were laid down in the case of
Coin Security (Pty)
Ltd v CCMA and Others
(2005) 26 ILJ 849 (LC).
(ii) That the first respondent
misconceived the industry definition and unduly narrowed it by
finding that the transportation activities
were undertaken by the
third respondent’s clients and not by the third respondent
itself.
(iii) That the first respondent
misconceived and unduly narrowed the meaning of the phrase “for
hire or reward” in the
industry definition, effectively
rendering the term “for hire” redundant.
[13] The Court
a quo
held that
it was not apparent that the first respondent had applied an unduly
restrictive approach to the application of the industry
definition.
The Court
a quo
went on to state that it did not understand
the judgment of
Coin Security (Pty) Ltd v CCMA and Others
(2005) 26 ILJ 849 (LC) (“
Coin Security
judgment”)
to suggest that a commissioner engaged in a demarcation dispute is
not required to have regard to all of the relevant
facts and
circumstances when seeking to identify the nature of the enterprise
in which employees and their employer are associated
for a common
purpose. The Court
a quo
pointed out that the
Coin Security
judgment laid down that a demarcation involves considerations of
fact, law and social policy and that due deference ought to be
given
to a commissioner making a demarcation award.
[14] With regards to whether the
transportation activity was required to be undertaken by the third
respondent itself, as concluded
by the first respondent, the Court
a
quo
agreed with the first respondent’s interpretation of
the term “for hire”, i.e. that the industry definition is
intended to qualify “the transportation of goods by means of
motor transport” and not to qualify the business activity
in
which the third respondent is engaged.
The appeal
[15] The grounds of appeal were
alluded to earlier in this judgment. With regards to the arguments
advanced on behalf of the parties,
it needs to be pointed out, from
the outset, that the appellant’s submission (made in paragraphs
3 and 36 of its written
heads of argument) is misleading as it
incorrectly states that the court
a quo
‘correctly
recognised [that] the appellant’s case was pleaded and argued
on the basis of process-related errors.’
The correct reading of
the judgment reveals that in the paragraphs relied upon by the
appellant, viz paragraph 14 of the court
a quo’
s
judgment, the court
a quo
was merely repeating the argument
that the appellant presented to it during the review proceedings. The
same applies to paragraphs
16 and 17 of the judgment. The court
a
quo’s
own views on that specific aspect are expressed from
paragraph 18 of the judgment onwards. These views, which will be
canvassed
later in this judgment, clearly run parallel to the
appellant’s assertion.
[16] It was argued on behalf of the
appellant that the first respondent adopted the “wrong legal
approach in applying a restrictive
interpretation of the industry
definition” as suggested in the
Greatex Knitwear
judgment and that the Court
a quo
should have followed the
principle laid down in the
Coin Security
judgment which made
it clear that in a demarcation dispute there was no basis for a
restrictive approach to the interpretation
of the applicable industry
definition as account must be taken of collective bargaining
imperatives.
[17] The appellant further contended
that although deference to the decision of a commissioner may
legitimately be invoked, it may
so be invoked only if a number of
reasonable outcomes are possible and cannot be invoked where
process-related errors, such as
a material error of law have
occurred. Consequently, so it was argued, the Court
a quo
erred in deferring to the first respondent’s award which was a
product of a material error of law. According to the appellant,
the
court
a quo
did not squarely decide the issue pertaining to
the entity that was carrying out the transportation activity.
[18] It was argued on behalf of the
third respondent that the first respondent had correctly found that
the transportation activities
ensuing from the implementation of the
contract between the third respondent and its clients were undertaken
by the client and
not by the third respondent, as this reasoning was
based on the fact that the third respondent hired out trucks and the
services
of a specialist driver at a flat rate, with the result that
the usage of the trucks lay solely on the decision of the client,
such
that the client would still be liable for the daily rate even if
it had not been put to use by the client.
Analysis and evaluation
[19]
In the
Greatex Knitwear
judgment the court stated that t
he
method used to determine whether a class of employers is engaged in a
particular industry entailed the following exercise:
'(a)
The meaning of ''industry' as used in the agreement, is determined.
This usually requires the interpretation of some definition
appearing
in the agreement. It seems that a restrictive interpretation is often
applied, cutting down the scope of the general
words in the
definition. Although not specifically invoked, the mode of
interpretation appears to be that applied in
Venter
v R
1907
TS 915
(cf
Rex
Scapszac and Others
1929
TPD 980
;
Rex
v Ngcobo
1936
NPD 408
;
Rex
v Goss
1957
(2) SA 107
(T) at 110).
(b)
The activities of the employer (personal and by means of his
employees) are determined.
(c)
The activities and the definition (as interpreted) are now compared.
If none of the activities fall under the definition,
caedit
quaestio
;
if some of the activities fall under the definition, a further
question arises: are they separate from or ancillary to his other
activities? If they are separate he is engaged in the industry
(unless these activities are merely casual or insignificant -
Rex
v CTC Bazaars (SA) Ltd
1943
CPD); if they are ancillary to his other activities, he is not
engaged in the industry (unless these ancillary activities are
of
such a magnitude that it can fairly be said that he is engaged in the
industry within the meaning of the definition (
A.G.
Tvl V Moores SA (Pty) Ltd
1957
(1) SA 190
(A)).
(d)
Inherent in this approach is the possibility that an employer may be
such in more than one industry (
Rex
v Giesken & Giesken
1947
(4) SA 561
(A) at p 566), despite the difficulties that may arise
from such a situation (cf
Rex
v Auto-Parts (Pty) Ltd and Ano
ther
1948 (3) SA 641
(T) at 648).'
2
[20]
Having
considered the first respondent’s award as well as the court
a
quo
’
s judgment, I have to agree
with the court
a quo
’
s
finding that it could not be concluded that the first respondent had
failed to apply his mind to the matter just because he stated
in his
award that the approach he would adopt was that contained in the
Greatex Knitwear
judgment.
I agree with the court
a quo’
s
conclusion that even though the first respondent made reference to
the approach referred to in the
Greatex
Knitwear
judgment, it can hardly be
said that he purported to reach his decision by the application of
one or other approach or that his
approach amounted to a wrong
application of the law that prevented a fair trial of the issues. The
court
a quo
correctly
pointed out that the first respondent had not been required to
consider whether an expansive or a restrictive definition
ought to be
applied, nor did he purport to reach his decision by the application
of one or the other approach. The Court
a
quo
thus correctly ruled that the
outcome of the arbitration proceedings was a mere application of
facts to the definition and there
was no application of a restrictive
interpretation. Given the view that this Court takes on this matter,
the appellant’s
argument that the first respondent committed
process-related errors on the basis of adopting a wrong approach or
applied a wrong
test has no merit.
[21]
In the
case of
Coin Security,
the
Labour Court had occasion to deal with a review of a demarcation
award.
The applicant company had applied for the review and
setting aside of a demarcation award issued by a CCMA commissioner in
terms
of which it was found that the company's assets in the transit
division was engaged in the Road Freight Industry and fell within
the
jurisdiction of the National Bargaining Council for the Road Freight
Industry. The court found that the demarcation process
‘is one
entrusted to a specialist tribunal in terms of the provisions of the
LRA 1995.’ The court found that the commissioner's
award had
been properly based on the evidence before her, reflected an
application of the mind to all the relevant facts and considerations
including those dealt with in argument by the company and was clearly
rational and justifiable, and indeed correct. Significantly,
the
court also comprehended more than one method of analysis or approach
and held that it could not be said that the approach and
result
arrived at by the commissioner was incapable of justification. The
court accordingly dismissed the application with costs.
[22] I am satisfied
that the approach adopted by the first respondent passes muster
against the principles enunciated in the
Coin
Security
judgment. This is particularly
so when consideration is paid to the following remarks made by the
court in paragraph 63 of the
Coin
Security
judgment.
It is apt to
refer to the court’s
remarks, which appear
at paragraphs 59, 63 and 64 respectively:
‘
Under
the Act (LRA), demarcations need to be seen in the context of the
system of bargaining councils established there-under aimed
at
achieving the primary objects of the Act, including the promotion of
orderly collective bargaining at a sectoral level. These
statutory
imperatives require the demarcating tribunal to enquire, beyond
mechanistic comparison of jobs, into the relevant bargaining
practices and structures... T
he
demarcation process is one entrusted to a specialist tribunal in
terms of the provisions of the Act.
The
demarcation decision is one involving facts, law and policy
considerations. In demarcation decisions, there will, more often
than
not, be no one absolutely correct judgment. Particularly in decisions
of this sort, and given the provisions of the Act, there
must of
necessity be a wide range of approaches and outcomes that would be in
accordance with the behests of the Act. Due deference
should
therefore be given to the role and functions and resultant decisions
of the CCMA in achieving the objects of the Act.
This
approach will not only be consistent with these principles, but also
consistent with the need for the Act to be administered
effectively.
The case for judicial deference becomes all the more compelling in
this matter given that NEDLAC agreed to support
the provisional
award.’ (my emphasis).
[23] Significantly,
NEDLAC was established
in terms of the
National Economic, Development and Labour Council Act
35 of 1994
.
Section 5
thereof defines its objects and purposes as
including striving 'to promote the goals of economic growth,
participation in economic
decision- making and social equity', and
'to continually evaluate the effectiveness of legislation and policy
affecting social
and economic policy'. NEDLAC is thus fully
conversant with collective bargaining imperatives. It is thus
noteworthy that NEDLAC
has supported the first respondent’s
provisional award.
[24]
As stated in
paragraph 11 above, the first respondent correctly found that the
word “hire” applies to activities involving
“the
transporting of goods by means of motor transport” and not to
the business activity in which the third respondent
is engaged. The
Court
a
quo
correctly
found that the appellant, by arguing that it was sufficient if the
third respondent’s employees were merely associated
with the
activities of transportation, was attempting to incorporate the third
respondent into the jurisdiction of the Council
by focussing on the
association between the employees and the clients of the third
respondent instead of correctly looking at the
third respondent and
its employees and thus whether its employees were associated with the
transportation of goods. The court
a
quo
correctly
found that since the activity of hiring out plant and vehicles for
rental is not contemplated by the industry definition,
the third
respondent’s business activities fell outside the ambit of that
definition.
[25] It is clear from the award that
the first respondent was alive to the true nature of the enquiry
before him. He embarked on
a detailed analysis of all evidence before
him, including the evidence relating to the nature of the third
respondent’s business.
The reasons the first respondent has
advanced for his conclusion, captured in the extract in paragraph 10
and 22 of this judgment,
are sound as they are firmly supported by
the evidence. He found, on an application of facts, that the business
of hiring out trucks
to mining and building contractors for operation
on site was not an activity amounting to the transportation of goods
by means
of transport. It therefore cannot be said that he
misconceived the relevant industry definition or failed to apply it
to the facts
of the case.
[26] As regards the appellant’s
submission (made in paragraph 42 of the appellant’s written
heads of argument) which
suggests that the first respondent took the
view that he was entitled to have regard to the LRA’s objective
of orderly collective
bargaining
only
if faced with a
possibility of alternative demarcations or when the industry
definition was ambiguous, it is clear that this submission
amounts to
a distortion of the second respondent’s reasoning and thus
warrants no further consideration. This distortion
is evident from
the following extract of the first respondent’s award:
‘
Whilst
I accept that an arbitrator faced with the possibility of alternative
demarcations might properly opt for a demarcation which
would achieve
the Act’s objective of orderly collective bargaining in
preference to one that does not, this does not empower
an arbitrator
to demarcate the employer’s activities under the jurisdiction
of a bargaining council under which it does not
resort in accordance
with the arbitrator’s interpretation and assessment of that
Council’s definition and scope and
the nature of the employer’s
business. Such an award would undoubtedly be
ultra
vires
and outside the arbitrator’s powers and as such unlawful.’
[27] For all the reasons mentioned
above, I find that the Court
a quo
correctly found that the
first respondent had not committed any of the acts warranting the
review of the arbitration award and
thus correctly dismissed all the
grounds of review. There is no basis for interference with the first
respondent’s award.
Under the circumstances, the appropriate
order would be one dismissing the appeal with costs.
Order
[28] The appeal is dismissed with
costs.
___________________
M B Molemela AJA
Waglay DJP and
Zondi AJA concurred with this judgment.
APPEARANCES
:
FOR THE APPELLANT: Advocate P Kennedy
SC
INSTRUCTED BY: Moodie and Robertson
Attorneys
FOR THE THIRD RESPONDENT: Mr C Levin
INSTRUCTED BY: Clifford Levin
Attorneys
1
The
Labour Court case is reported as
National
Bargaining Council for the Road Freight Industry v Marcus
NO
and Others
(2011)
32 ILJ 678 (LC).
2
At
344H-345D.