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[2007] ZALCD 6
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South African Municipal Workers Union and Another v Ethekweni Municipality and Another (D476/07) [2007] ZALCD 6 (26 September 2007)
THE
LABOUR COURT OF SOUTH AFRICA
(HELD
AT DURBAN)
Case
no: D 428/07
D
476/07
In
the matter between:
SOUTH
AFRICAN MUNICIPAL
WOKERS
UNION
First
Applicant
INDEPENDENT
MUNICIPAL
ALLIED
UNION
Second Applicant
and
ETHEKWENI
MUNICIPALITY
First
Respondent
SOUTH
AFRICAN LOCAL GOVERNMENT
BARGAINING
COUNCIL
Second Respondent
JUDGMENT
MOSHOANA
AJ
Introduction
[1]
The first applicant for the purpose of this judgment, brought an
urgent application under case number D 428/07. In that application,
the second applicant for the purpose of this judgment was cited as
the third respondent.
[2]
The said urgent application was brought on 23 July 2007. Nel AJ made
the following order:
2.1
The matter is adjourned to the opposed roll
on 14 September 2007 for argument on final relief.
2.2
The matter will be heard together with the
applications foreshadowed in the third respondent’s answering
affidavit.
2.3
It
is recorded that the parties have agreed on dates for the exchange of
further affidavits.
2.4
Costs reserved.
[3]
It appears that the order was drafted by the parties and adopted by
the Court. The unfortunate part with the order is that dates
for the
exchange of further affidavits were not specified. This led to some
affidavits being filed on the eve of the hearing of
the matter.
During argument, the Court expressed its displeasure in the manner in
which documents were filed.
[4]
On 08 August 2007, the second applicant brought its own application
under case number D 476/07. The first applicant them became
the third
respondent in that application.
[5]The
first applicant sought the following relief:
5.1
That the respondents be and they are hereby
called upon to show cause why the following order should not be made:
(a)
That it be and it is hereby declared that
the document described as the collective agreement on Divisional
conditions of service
signed by the first respondent, the third
respondent and the applicant and which was dated 29 march 2007 (being
annexure “A”
to the founding affidavit and hereinafter
called the “Divisional Agreement”) is void and of no
legal effect.
(b)
That the first respondent be and it, is
hereby interdicted and restrained from implementing the terms of the
provisional agreement.
(c)
That the first respondent pay the costs of
this application.
5.2
That the interdict in paragraph 5.1 (b)
above operate with immediate effect pending the final determination
of this application.
5.3
The second applicant on the other hand
sought the following orders:
(a)
The collective agreement on Divisional
Conditions of service dated 29 March 2007 being annexure “A”
to the applicants
founding affidavit in these proceedings (the
agreement) is declared to be null and void and of no legal force or
effect.
(b)
Within 30 days of the date hereof the first
respondent is to:
(i)
Desist from implementing the terms of the
agreement.
(ii)
Do all such things as are necessary to
restore the conditions of service of its employees to such conditions
as existed as at 31
March 2007.
[6]
The second applicant sought other alternative reliefs, which I do not
intend to quote for obvious reasons that shall appear
later in this
judgment.
[7]
On the day of the hearing parties agreed to confine the matter to the
relief sought in paragraphs 5.1(a) and (b) of the first
applicant’s
notice of motion and paragraphs 5.3(a) and (b) (i)(ii) of the second
respondent’s notice of motion. The
parties further agreed that
whatever the outcome, the Court must not make an order as to costs.
Background
facts
[8]
The first respondent was formed by the amalgamation of about forty
different municipalities. As a result of the amalgamation
employees
of the former municipalities became employees of the first
respondent.
[9]
Owing to the fact that the different municipalities did not have
uniform terms and conditions of employment, a situation presented
itself where different terms and conditions of employment applied
within the first respondent.
[10]
That situation led to negotiations attempting to find uniform
conditions of employment. As it is expected, during the course
of
negotiations various issues were raised by the applicants. Other
issues were discussed separately, at Emergency Services Unit
Local
Labour Forum. During the course of the negotiations, the first
respondent produced a draft agreement, which became the subject
of
discussion during several workshops. As it is expected various
amendments were suggested to the draft agreement.
[11]
The Emergency Services Unit Local Labour Forum discussed issues of
the Fire and Emergency Services Unit. Certain proposals
were made and
presented to the applicants. This proposal emanated from the Labour
Forum discussions.
[12]
On 7 March 2007, the so-called Drakensberg workshop commenced. This
workshop was attended by the applicants and the first respondent.
One
Mr Yunis Shaik acted as a facilitator. The workshop endured until 9
March 2007.
[13]
A summary of the workshop discussion was produced (annexure D to
second applicant’s founding affidavit). The facilitator
as
expected made certain proposals (annexure H to second applicant’s
papers). It appears that after some discussions with
shop stewards,
on 29 March 2007, the agreement under attacked was signed.
[14]
Parties to the said agreement was the first respondent and the
applicants. The applicants mainly raised concern that the Divisional
agreement contained matters beyond its area of jurisdiction and
capacity to deal with. I shall deal with this aspect in detail
later.
[15] On 14 June 2007, the
first respondent directed a letter to the General Secretary of the
second respondent raising concerns
about the collective agreement. At
paragraph 10 of the said letter the National officer –
Collective Bargaining Unit stated
the following:
“
We
therefore submit that these defects go to the heart of the collective
agreement in question and as such, the agreement in its
entirety must
be set aside and the parties recommence negotiations in accordance
with the SALGBC Executive Committees resolution
of 22 June 2005.”
[16] It is therefore
apparent that the first applicant was advised to launch an
application in this Court.
The
first respondent’s opposition
[17]
The first respondent sought to oppose the reliefs sought by the
applicants. In the affidavit deposed to by the Head of Human
Resources Department on 23 July 2007 against the first respondent’s
application, no points
in limine
were raised. In a further affidavit by the same deponent deposed to
on 11 September 2007, the two points
in
limine
were raised (paragraph 6 of the
aforesaid affidavit). On 30 August 2007, the said deponent deposed to
an affidavit opposing the
second applicant’s application. In
that affidavit the same points
in limine
were raised (paragraphs 7 and 8 thereof). The points
in
limine
raised by the first respondent
relates to lack of jurisdiction and the defence of
lis
pendes.
The
issue of jurisdiction
[18]
The first respondent contends that the Labour Court lacks
jurisdiction to deal with the dispute as it relates to interpretation
and application of a collective agreement. In that regard, the first
respondent relied on the provisions of section 24 and the
provisions
of the Constitution of the Bargaining Council. The two applicants
resisted the points and simply argued that the relief
they seek is
declaratory and interdictory in nature and therefore the Labour Court
has jurisdiction.
[19]
Advocate Van Niekerk SC strenuously argued that the matter had to do
with interpretation and application of a collective agreement
irrespective of the relief sought. He urged the Court to decline
jurisdiction and instead defer the matter to the second respondent.
[20]
Both Pillimer SC and Winchester SC argued that much as interpretation
of clauses in the constitution comes into play, in that
the Court is
asked by them to interpret certain clauses, which shall be dealt with
later, in their favour to demonstrate the unenforceability
of the
agreement under attack, such does not make the matter to fall within
the purview of section 24 of the Labour Relations Act.
[21]
The Labour Relation Act sets out the jurisdiction of the Labour Court
and its powers. Quiet often the distinction between the
two
(jurisdiction and power) are fudged. Although it follows in my view
that once the Labour Court has powers to do certain things,
it has
jurisdiction to deal with any matter that would lead to it exercising
a power it has.
[22]
It also follows in my view that once the Labour Court lacks power, it
is almost a forgone conclusion that it might not have
jurisdiction.
[23]
As a matter of course, the Labour Court has concurrent jurisdiction
with the High Court in respect of any alleged or threatened
violation
of any fundamental right entrenched in Chapter 2 of the Constitution
of the Republic of South Africa 1996, and arising
from employment and
from labour relations. (section 157(2) (a))
[24]
Most importantly, the Labour Court has discretionary powers to make
an appropriate order, including an interdict and a declaratory
order.
[25]
The applicants seek a declaratory order and an interdict. The Court
fails to understand why, if it possesses the power to dispense
with
the relief the applicants seek it should lack jurisdiction to do so.
It is so that one of the documentary evidence to be considered
by the
Court is a collective agreement. The parties sought to place their
own interpretation on that piece of evidence.
[26]
The fact that they did so does not automatically make the dispute one
of interpretation of a collective agreement as contemplated
in
section 24 of the Act. There is merit in the submission of Adv
Winchester SC, that the same route is quiet often travelled by
this
Court when dealing with matters of section 189 of the Act. In most
instances it is found that the procedure allegedly not
followed is
contained in collective agreements. That in itself may inevitably
lead to the issue of interpretation and application
of the aforesaid
collective agreement. The fact that the Court might interpret and
apply the collective agreement does not as a
matter of course divest
itself with jurisdiction. Section 189(1) (a) for instance creates an
obligation to consult with a person
set out in a collective
agreement.
[27]
More often than not, there may be issues of interpretation germane to
the dispute of operational requirements dismissal. The
fact that such
inevitable occur does not mean that the Court shall be barred to deal
with that because of the provisions of section
24.
[28]
This is absurd and could not have been contemplated by the
legislature when section 24 was inserted in the Act.
[29]
Section 24 was intended to apply in instances where the collective
agreement in question is not attacked (i.e. being
void
ad initio
). If it were so, then the
provisions of section 24 would not make sense. How does a party
invoke the dispute resolution mechanism
of a collective agreement it
disputes?
[30]
Simply put in the applicants’ view there is no collective
agreement therefore, the dispute resolution mechanism does
not exist.
Their view is to be tested and accepted or rejected by the Court in a
form of issuing or refusing to issue a declarator.
[31]
Section 24(1) refers to a collective agreement to contain procedure
for resolution of disputes. Surely when the legislature
refers to the
collective agreement, it refers to a particular collective agreement
entered into by the parties which should have
in it built in dispute
resolution procedure. It does not in the Court’s view refer to
any other collective agreement. So
to the extend that if the very
collective agreement is disputed therefore its own dispute resolution
procedure is deemed not to
exist unless declared valid.
[32]
Section 24(2) refers to a dispute about the interpretation or
application of a collective agreement. The section does not refer
to
a dispute about the validity of a collective agreement. Application
in this instance refers to application of a valid collective
agreement. For an example a dispute about whether a particular valid
collective agreement apply to a category of employees or a
unit.
[33]
Adv Van Niekerk SC strenuously argued that the provisions of clause
10.4 of the Constitution provides for the procedure contemplated
in
section 24(1) of the Labour Relations Act. He argued that the
applicants ought to have invoked the process set out therein.
[34]
The difficulty with that argument is that that clause caters for
disputes about application and interpretation of the collective
agreement in particular the constitution. The dispute of the
applicants is about the validity of a divisional agreement which may
be a valid collective agreement once the Court has pronounced on its
validity.
[35]
The Court did not understand Adv Van Niekerk SC to contend that the
Court has no jurisdiction to entertain interdicts and declaratory
orders. His contention was the fact that interpretation of a
collective agreement comes into play then the Court lacks
jurisdiction.
This Court can issue a declarator and interdicts (N
UMSA
v CCMA and others (2000) 21 ILJ 1634 (LC)
).
(Section 158(i)(a) of the Act)
[36]
Accordingly the Court has jurisdiction.
The
defence of
Lis
Pendes
[37]
The first respondent contents that a dispute about the interpretation
and application of a collective agreement is pending
at the second
respondent and accordingly the Court must refuse to entertain the
matter.
[38]
That contention faulters on two grounds:
[39]
Firstly, in Adv Van Niekerk’s SC’s submission what is
pending before the second respondent is a dispute about
interpretation and application of a collective agreement, whereas the
matter before court is about the validity of an agreement.
It
therefore follows that the dispute about the validity of an agreement
does not pend with the second respondent.
[40]
Secondly the very second respondent deferred the dispute if it was
the same to this Court.
[41]
The plea of
lis pendes
is competent if there is pending litigation between the same parties
based on the same cause of action before the same court or
another
court with equal competence. (
Van As v
Appolus
1993 1 SA 606
(C)
,
Cook
v Muller
1973 2 SA 240
(N)
,
Mtshali
v Mtambo
1962 3 SA 469
(C)
and
Nestle
(Pty) Ltd v Mars Inc
2001 4 SA 315
(A)
).
Accordingly the Court is not precluded to deal with this matter.
[42]
The last point raised only in the heads which somewhat challenges the
relief sought
per se
is that of lack of tender of return of the benefit (
restitutio
in intergrum
).
[43]
According to Adv Van Niekerk SC, the relief is fatally defective in
that there is no tender of restitution. I do not agree.
How can the
applicants tender restitution when they do not know that the Court
will invalidate the agreement. If the agreement
is found to be valid,
then the need for restitution falls by the way side. This is not a
matter where a party seeks rescission
or cancellation of a valid
agreement for some other reasons.
[44]
Accordingly lack of tender is not bar to the relief.
Is
the Divisional agreement void?
[45]
The applicants contended that it is void. The first applicant argues
that the agreement is invalid for want of compliance with
procedure.
Further and only in the alternative that it contravened clause 4.2 of
the Bargaining levels Agreement in that it dealt
with issues it ought
not to have dealt with.
[46]
On the other hand the second applicant argued in the main that the
agreement is void in that it is
ultra
vires
and in the alternative there was
lack of process.
[47]
Adv Van Niekerk SC, argued passionately that the agreement is not
void. He suggested that the agreement was a duplicate of
issues
already dealt with by the National Council.
[48]
Adv Winchester SC, disagreed and pointed out that the National
Council Agreement does not deal with such issues. He pointed
to the
retirement age issue as an example.
[49]
Adv Winchester SC argued that clause 3.1.2 should be interpreted to
mean that only the council has powers to deal with three
issues
(namely wages, conditions of employment and matters of mutual
interest)
[50]
In terms of clause 3.1.15, the council has powers to delegate any of
its functions to divisions, committees or employees through
collective agreement. He argued that on 5 November 2003, the council
invoked the provisions of clause 3.1.15 through the Bargaining
Levels
Collective Agreement.
[51]
He argued that clause 4.2 of the said Bargaining Levels Agreement was
superfluous in that clause 3.1.2 properly interpreted
caters for
such.
[52]
Pillimer SC pegged his submission on clause 3.2 of the Constitution
of the Bargaining Council. In his submission, the division
is
empowered to deal with issues reserved for council provided a process
is followed.
[53]
Winchester’s submission is that the process contemplated in 3.2
relates to an issue outside the three referred to earlier
(wages,
conditions of employment and matters of mutual interest). I do not
agree with this interpretation particular if regard
is had to the
phrase “all matters of mutual interest”. There exist no
chance for the fourth issue. Nonetheless nothing
turns on this point.
[54]
Van Niekerk SC also raised the point of estoppel. He argued that by
their conduct, the applicants are estopped from raising
lack of
authority. He relied on the decision of
Samancor
v Numsa (2000) 21 ILJ 235 (LC)
. He
submitted that the applicant bargained in a
mala
fide
manner.
[55]
In the Court’s view there is merit in the submissions of
Winchester barring the one submission referred to earlier. It
therefore follows that even on Pillimer’s limited submission of
lack of process, the agreement is in breach of the provisions
of the
Constitution as it stood at the time.
[56]
Having accepted Winchester’s argument, it follows that the
divisional agreement exceeds powers delegated to it by the
bargaining
levels agreement. The argument by Van Niekerk SC that the agreement
was simply for convenience as it documented the
agreement at National
Council has no merit. Other than a bold allegation that the agreement
is not void, there is nothing to suggest
that clause 3.1.2 properly
interpreted empowers
only
the council unless it delegates. Further there is nothing to gainsay
the fact that the delegation is limited to issues in clause
4.3. of
the bargaining levels agreement. It is apparent that the document on
page 348 in the second applicant’s papers has
no relevance to
the issue set out in the Bargaining levels agreement.
[57]
Therefore what remains is the consequences of such breaches and
excess of power. I shall deal with that hereunder.
[58] In
Messenger of
the Magistrate Court Durban v Pillay
1952 (3) SA 678
(A) at 682
,
the following was said:
“
The
cardinal rule is still that stated in
Standard
Bank v Estate Van Ryn
1925 AD 266
at p274
:
“After all what we have to get at is the intention of the
legislature…” I based my decision upon the whole
scope
and purpose of the statute, and upon the language of the section to
which I specifically referred…”
[59]
In
Sutter v Scheepers
1932 AD 165
,
Wessels JA stated where the word shall is employed then there is no
discretion.
[60]
The matter before me calls for the consideration of the collective
agreement (Constitution of the Council and Bargaining levels
agreement). The matter is not about interpretation and application in
the sense contemplated in section 24 of the Act.
[61]
Clause 3.2 specifically states that negotiations on issues in 3.1
(wages, conditions of employment and all matters of mutual
interest)
shall
be
concluded in the central council. It is clear that the provisions are
peremptory. There is no dispute that the divisional agreement
dealt
with conditions of employment.
[62]
Clause 4.3 of the Bargaining levels agreement in particular states
that in furtherance of the intent to establish uniform conditions
of
service the following matters
shall
be the subject of collective bargaining at divisional level
only
.
Those matters are listed. It can only follow that dealing with any
other matters outside 4.3 is prohibited if clause 4.3 is read
in
conjunction with clause 3.2 of the Constitution.
[63] In
Schierhout v
Minister of Justice
1926 AD 99
at 109
, the following was said:
“
It
is a fundamental principle of our law that a thing done contrary to
the direct prohibition of the law is void and of no effect”
[64]
See
Sasfin (Pty) Ltd v Beukes
1989 (1)
SA 1
(A)
.
[65] In
Amalgamated
Society of Woodworkers of SA and another v Die 1963
Ambagsaalvereniging
1967 (1) SA 586
(T) at 595 C
, the court held:
“
In
my view there is no escape from the conclusion that second plaintiff
acted ultra vires when donating the R16 218, to defendant.
The
donation itself was therefore void ab initio”
.
[66]
In
Abrahamse v Connock’s Pension
Fund
1963 (2) SA 76
(W)
, the court held
that a defendant could not be estopped from denying that plaintiff
was a member of the pension fund if it had entered
into such a
contract with him, such contract would have been
ultra
vires
and the defendant could not be
bound by estoppel to do anything beyond its legal capacity. It
therefore follows that the estoppel
point must fail.
[67]
In
Amalgamated
Union Building
Trade v SA Mason’s Society 1957
(1) 440 (A)
, the Appellate division as
it then was found that the executive committee of the union was
empowered by its own Constitution to
enter into an agreement.
[68]
In
Rootes v Mundawarara
1973 (2) SA 442
(R)
, the court in applying the maxim
ex
turpi causa non oritur actio
, refused
to enforce an illegal agreement (see
Gibson
v Van der Walt
1952 (1) SA 262
(A)
).
[69]
In
Rugnath v Jokoy Orie
1949 (1) SA 570
(D)
, the court agreed to declare a
contract null and void where there are no considerations of public
policy against such a course
(
Jaybhay v
Cassim
1939 AD 537
). Public policy
considerations were not argued by Van Niekerk SC. It was never the
contention of the first respondent that Public
policy demands
enforcement
[70] Having considered
the authorities referred to above, I am left with no option but to
declare the agreement null and void
ab initio
. The Court
cannot even consider severability (see
Katz v Efthimiou
1948 (4)
SA 603
(O)
, and
Roffey v Catterall, Edwards and Goudre’
(Pty) Ltd
1977 4 SA 494
(N)
).
Order
[71]
In the result I make the following order:
1.
The collective agreement on Divisional
conditions of service dated 29 March 2007 is hereby declared null and
void and of no legal
force and effect.
2.
No order as to costs.
_______________________
G
N MOSHOANA
Acting
Judge of the Labour Court
Date
of Hearing:
14 September 2007
Date
of Judgement:
26
September 2007
APPEARANCES;
For
the First Applicant:
Pillemer SC
Instructed
by: Shanta
Reddy Attorney
For
the Second Applicant: A
Winchester SC
Instructed
by:
Futcher
Attorneys
For
the First Respondent:
G Van Niekerk SC and P
Schuman
Instructed
by:
Shepstone
and Wylie Attorneys