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[2010] ZALCJHB 367
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BP Southern Africa (Pty) Ltd v National Bargaining Council for the Chemical Industry and Others (J841/09) [2010] ZALCJHB 367 (29 January 2010)
THE
LABOUR COURT OF SOUTH AFRICA
(HELD
AT JOHANNESBURG)
CASE
NO. J 841/09
In
the matter between:
BP
SOUTHERN AFRICA (PTY) LTD
Applicant
and
THE
NATIONAL BARGAINING COUNCIL
FOR
THE CHEMICAL
INDUSTRY
1
ST
Respondent
WILLIE
M RALEFETA
N.O.
2
ND
Respondent
KELEPILE
ISRAEL
MARUPING
3
RD
Respondent
JUDGMENT
VAN
NIEKERK J
Introduction
[1]
This is an application brought in terms of s 158 (1) (c) of the
Labour Relations Act in which the applicant seeks to have an
arbitration award made by the second respondent an order of Court. In
his award, the second respondent ruled that ‘the dismissal
of
the applicant is upheld’. On 19 September 2007, the third
respondent filed an application to review and set aside the
second
respondent’s award. The application was filed in the Labour
Court in Cape Town. The applicant seeks an order in terms
of section
158 (1) (c) on the basis that the third respondent has been dilatory
in prosecuting the application for review, and
that it is in the
interests of justice that the third respondent be precluded from
further pursuing that application.
Preliminary
point: jurisdiction
[2]
Shortly before the hearing of this application, the applicant filed
supplementary heads of argument in which it submitted that
the Cape
Town Labour Court does not have jurisdiction to adjudicate the review
application, since none of the traditional
ratio
jurisdictiones
applicable in the civil
Courts are present in that application. In particular, the applicant
avers that the third respondent worked
in the North West province,
that his contract was terminated in that province, that the third
respondent has cited the applicant’s
principal place of
business in Johannesburg as the applicant’s address, and that
the proceedings before the bargaining council
were conducted in
Johannesburg. Accordingly, the applicant argues that the review
proceedings are a nullity and that this disposes
of the application
for review.
[3]
Mr Boda, who appeared for the applicant, relied on a judgment of this
Court (per Sibeko AJ) in
HG Botha v
Whitey Bester t/a Sakulwasi Electrical
(Labour
Court, P107/03) in which it was held that an applicant was not at
liberty to institute proceedings at any seat of the four
Labour
Courts established in the Republic. The Court appears to have applied
the common law rule that a claimant is required to
seek out the
defendant, or to have instituted proceedings in a place that has a
connection with the cause of action. Applying the
rules for practice
in the High Court, and since the only connection with the Port
Elizabeth Court was the fact that the applicant
resided in that city,
the Court held that it lacked jurisdiction and dismissed the
application on that basis.
[4]
Section 151 of the LRA establishes the Labour Court as a superior
Court with the authority, inherent powers and standing, in
relation
to matters under its jurisdiction, equal to that which a provincial
division of the High Court has in relation to matters
under its
jurisdiction. Section 156 provides:
“
156
Area of jurisdiction and seat of Labour Court:
(1)
The Labour Court has jurisdiction in
all the provinces of the Republic.
(2)
The Minister of Justice, acting on
the advice of NEDLAC, must determine the seat of the Labour Court.
(3)
The
functions of the Labour Court may be performed at any place in the
Republic.”
[1]
[5]
There are material differences between the enabling provisions
contained in the Supreme Court Act conferring jurisdiction upon
a
High Court and the relevant provisions of the LRA conferring
jurisdiction upon the Labour Court. The enabling provisions (apart
from the fact that the High Court also has jurisdiction in terms of
the common law) are so materially different in that an analogous
form
of interpretation would lead to an absurdity. Any division of the
High Court has jurisdiction in terms of the provisions of
section 19
(as the relevant provision dealing with persons over whom and matters
in relation to which provincial and local divisions
have
jurisdiction) of the Supreme Court Act. The jurisdiction of the High
Court is determined by reference to the common law, the
inherent
jurisdiction in the High Court or any relevant statute.
[2]
The Labour Court, on the other hand, is a creature of statute and has
no inherent jurisdiction and may do only what is prescribed
to it in
terms of the enabling legislation.
[3]
[6]
Secondly, the High Court has different divisions.
[4]
The whole of the Republic of South Africa falls by means of the
provisions of the Supreme Court Act, or further regulations and
proclamations, within the jurisdictional area of a specific division
of a provincial or local division of the High Court. This
is the
reason why the original jurisdiction of each division of the High
Court is territorial.
[5]
The
Labour Court, however, has four seats in the Republic of South
Africa; it does not comprise divisions which cumulatively extend
to
the whole of the territorial area of the Republic. Furthermore, there
are no provisions of the Labour Relations Act or statute
or law,
conferring upon any specific four seats of the Labour Court a
geographically defined area of jurisdiction, apart from the
whole of
the Republic. Rule 2 establishes what are termed ‘branch
offices of the registrar’ at those venues (other
than
Johannesburg) where the Labour court has premises i.e. Durban, Port
Elizabeth and Cape Town. The fact that branch offices
of the
registrar and the physical trappings of the Court exist in these
cities is motivated by considerations of convenience, not
jurisdiction.
[7]
In my view, the LRA contemplates and establishes the Labour Court as
a single Court with national jurisdiction, meaning that
proceedings
may be instituted at any of the Court’s branches regardless of
any ‘connecting factors’ that are
relevant in the case of
those Courts whose jurisdiction is more narrowly prescribed. Of
course, if a party abuses the process of
this Court, for example by
choosing a venue simply to inconvenience other parties or to increase
the costs of their defending any
action, that is a matter that the
Court can take into account in the exercise of its discretion in
regard to costs. Alternatively,
a party who takes issue with the
branch office of the registrar at which particular proceedings are
initiated may apply to have
the matter heard at a more convenient
venue (see Landman and Van Niekerk “
Labour
court Practice”
at A-9). For
these reasons, the
HG Botha
v Whitey Bester
judgment
is with respect clearly wrong, and I do not intend to follow it.
There
is accordingly no merit in the point
in
limine
.
[8]
In so far as the merits of the application are concerned, I raised
with Mr Grobler, who appeared for the third respondent,
the
question whether it was possible and/or appropriate for this Court to
make an arbitration award an order of this Court in circumstances
where the award is not capable of being executed. This Court
regularly grants orders in terms of s 158 (1) (c) to enforce
arbitration
awards in circumstances where employers are ordered to
reinstate an unfairly dismissed employee or to pay compensation. In
these
instances, a s 158 (1) (c) application is an integral part of
the statutory dispute resolution system, designed to afford
applicants
the means to enforce the underlying award. In all of these
cases, the awards are capable of being executed. In other words, they
are orders
ad factum praestandum
or
ad pecuniam solvendam
.
[9]
In the present instance, the award upholds the applicant’s
dismissal. In effect, it constitutes a dismissal of the applicant’s
claim. There is nothing in the award that is capable of being
executed, not even a costs order. In these circumstances, it seems
to
me that an order in terms of s 158 (1) (c) is not a remedy that ought
to be available to the applicant. For this reason, the
application
stands to be dismissed.
[10] Even if I am wrong
in concluding that applications in terms of s 158 (1) (c) ought to be
confined to the enforcement of arbitration
awards, the present
application should fail on the merits. It is trite that s 158 (1) (c)
confers a discretion on this Court, a
discretion to be exercised
judicially, to grant or refuse the relief of making an award an order
of Court. There are at least two
reasons why I would exercise my
discretion against the granting of the application. The first is the
availability of a suitable
alternative remedy - the applicant is free
to bring an application to dismiss the application for review. The
Rules of this Court
make no specific provision for an application to
dismiss when a party fails diligently to pursue a claim referred to
the Court
for adjudication, but the Court has recognised and adopted
the rule based on the maxim
vigilantibus non dormientibus lex
subveniunt
, in terms of which a party may in certain
circumstances be debarred from obtaining the relief to which that
party would have been
entitled because of an unjustifiable delay in
prosecuting their claim. In
Sishuba v National Commissioner of the
South African Police Service
(2007) 28
ILJ
2073 (LC),
Molahlehi AJ (as he then was) summarised the applicable case law.
From a policy perspective, there are two principal
reasons why the
Court should have the power to dismiss a claim at the instance of an
aggrieved party where the other has been guilty
of unreasonable
delay. In
Radebe v Government of the Republic of South Africa
1995
(3) SA 787
(N), the Court said the following:
"The
first is that unreasonable delay may cause prejudice to the other
parties… The second reason is that it is both
desirable and
important that finality should be reached within a reasonable time in
respect of judicial administrative decisions…"
In
Molala v Minister of Law and Order &
another
1993 (1) SA 673
(W), the High
Court held that the approach to be followed was the one set out in
Bernstein v Bernstein
1948 (2) SA 205
(W), where it was held that "
it
is in the discretion of the Court to allow proceedings to continue
where there has been this lapse of time."
The
court referred with approval to
Kuiper &
others v Benson
1984(1) SA 474 (W),
where it was held that the Court has "
an
inherent power to control its own proceedings and that accordingly
the Court should assess whether the Plaintiff is guilty of
an abuse
of process."
[11]
The applicant ought to have availed itself of an application to
dismiss the review application, in terms of the principles
to which I
have referred. This is a remedy specifically designed to address an
alleged abuse of this Court’s process in the
form of
unjustifiable delays occasioned by a litigant and avoids confusing
procedures that have as their purpose the enforcement
of awards with
those that are intended to deal with litigants who fail to prosecute
their claims with the required degree of diligence.
[12]
In any event, and notwithstanding the conclusions that I have
reached, I am not satisfied that the third respondent has failed
to
prosecute the review application to the extent that the interests of
justice require that he be effectively barred from pursuing
the
relief that he seeks, whether by way of making the award an order of
this Court or otherwise. The arbitration award under review
was
handed down on 24 August 2007. The application for review was filed
on 19 September 2007. In January 2008, the third respondent’s
then attorney of record advised the applicant’s attorney that
there were difficulties in transcribing the record. The bargaining
council filed a record on 10 January 2008, which, it appears, was
incomplete. In March 2008, there was an exchange of correspondence
during which the applicant’s attorney indicated their
willingness to assist in a reconstruction of the record. In November
2008, the third respondent’s previous attorney of record
undertook to furnish the applicant with the commissioner’s
hand
written notes and confirmed once again its availability for the
purpose of reconstructing the record. It appears that in mid-May
2009, the third respondent’s attorney was able to have certain
background noises lifted from the audio tapes in the creation
of the
transcript of the arbitration record, and that on 14 May 2009, the
tapes were referred back to the transcribers with instructions
to
transcribe those portions of the tapes that had been ‘cleared’.
This application was filed, without further warning
to the third
respondent it would seem, on 25 May 2009.
[13]
In these circumstances, while the third respondent’s previous
attorneys of record did not act as expeditiously as he
might have in
prosecuting the review application and the transcription of the audio
tapes, his conduct was not so gross as to amount
to an abuse of the
process of this Court, nor was he specifically put on terms that the
applicant would be seeking a remedy that
would have the effect of
dismissing the review application. In these circumstances, I do not
consider it in the interests of justice
to deny the third respondent
the opportunity to challenge the arbitration award.
I
accordingly make the following order:
1.
The application is dismissed, with costs.
ANDRE
VAN NIEKERK
JUDGE
OF THE LABOUR COURT
.
Date
of hearing: 26 January 2010
Date
of Judgment: 29 January 2010
Appearances:
For
the Applicant: Adv F A Boda
Instructed
by: Eversheds
For
the third respondent: Adv Grobler
Instructed
by: Horn & van Rensburg Attorneys
[1]
Section
156
of the
Labour Relations Act, 66 of 1995
[2]
Bison
Board Ltd v K Braun Woodworking Machinery (Pty) Ltd
[1990] ZASCA 86
;
1991
(1) SA 482
(A) at 486 H – J.
[3]
See:
Gomba
v Associated Mine Workers Union
(2008) 29 ILJ 1839 (ZH) on p. 1842; See
further
:
Hatfield
Town
Management
Board v Mynferd Poultry Farm (Pty) Ltd
1962 (RNN) 799 at 802.
[4]
By
means of the Act and as found by the Appellate Division in
Estate
Agents
,
at pg.4, para 9 of the applicant’s heads of argument.
[5]
Erasmus
“
Superior
Court Practice”
,
at pg.A1-23