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[2010] ZALCJHB 344
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United Peoples' Union of South Africa (UPUSA) v CCMA and Others (J984/10) [2010] ZALCJHB 344 (21 October 2010)
IN THE LABOUR COURT OF
SOUTH AFRICA
HELD
IN JOHANNESBURG
Reportable
CASE
NO: J984/10
In
the matter between:
UNITED PEOPLES’
UNION
OF
SOUTH AFRICA
(“UPUSA”)
Applicant
and
THE
CCMA
1
st
Respondent
THE
REGISTRAR OF THE LABOUR RELATIONS
2
nd
Respondent
HARMONY
GOLD MINING
COMPANY
3
rd
Respond
JUDGMENT
Molahlehi
J
Introduction
[1]
This
is an application for leave to appeal against the judgment of this
court which was made on the 27
th
July 2010 under case number J984/10. In terms of that judgment the
court held that the appeal against the decision of the Registrar
of
Labour Relation (the Registrar) cancelling the registration of the
applicant UPUSA did not suspend the decision from taking
effect.
[2]
The
leave to appeal was not opposed, the first and third respondent
having withdrawn their opposition and having undertaken to abide
by
the decision of this court.
[3]
NEWU’s
application to be joined as a party at this late stage of the
proceedings was dismissed because it had not shown that
it had a
direct and material interest in the outcome of the matter.
The
legal principles governing leave to appeal
[4]
In
terms of s166 of the Labour Relations Act 66 of 1995 (the LRA), an
appeal from the decision of the Labour Court to the Labour
Appeal
Court rests with the Labour Court.
[5]
It
is trite that the test for determining whether or not to grant leave
to appeal requires a judge to answer the question whether
or not
there is a reasonable prospect that another court may come to a
different conclusion to the one reached by him or her.
The background facts
[6]
The
background facts of this matter are set out in the earlier judgment
made by this court. It is not necessary to repeat the same
in any
details in the present matter. It should however suffice to say that
this matter came before this court because of the deregistration
of
the applicant by the Registrar. The Commission for Conciliation,
Mediation and Arbitration (the CCMA) sought a declaratory order
that
the appeal launched by UPUSA with the court ought to stay the
implementation of the decision to deregister it pending the
outcome
of that appeal.
The grounds for leave
to appeal
[7]
I
do not intend to deal with each and every aspect of the grounds for
leave to appeal raised by the applicant. This does not however
detract nor have any impact on the conclusion reached at the end of
this judgment. I do however, seek to deal with those grounds
of leave
to appeal which I belief are key to the central issue which the court
a quo had to deal with. The grounds for leave to
appeal are set out
in the applicant’s founding affidavit in the following terms:
“
22 This
finding by the Court a quo, is with respect fundamentally wrong in a
number of respects, in that
it clearly presupposes:-
22.1
that the Registrar is always right when he cancels a trade union's
registration, (a pending appeal in terms
of section 111(3) of the LRA
nonetheless);
22.2.
that such a trade union is always wrong, (a pending appeal of section
111(3) of the LRA nonetheless), in that
"...it had failed to
obey the law...", which allowed it its rights and benefits as a
registered trade union in the first
place; and
22.3.
that this is the legal position until a Court has upheld an appeal by
such a trade union, in terms of section
111(3) of the LRA, when the
status quo ante will, somehow, be restored.
15
23. This
finding by the Court a quo, was fundamental to the conclusion
ultimately arrived at by the Court
a quo, i.e. that —the
lodging of an appeal in terms of section 111(3) does not suspend the
operation of the deregistration
of a trade union and there exists a
very real and reasonable possibility that the Labour Appeal Court may
find that this approach
was fundamentally wrong.”
[8]
UPUSA
contended that the common law principle that an appeal suspends a
judgment of a lower court applies to the decision of the
Registrar to
deregister a union because that principle has not been expressly
excluded by the LRA. UPUSA relied on a number authorities
including
academics in support of its contention. It is on the basis of this
contention that UPSA argued that there is a reasonable
possibility
that Labour Appeal Court
may
find that the Court
a
quo
erred
in finding that an appeal in terms of section 111(3) of the LRA does
not suspend the Registrar's decision to deregister UPUSA,
by reason
of the fact that its constitutional right to administrative action
that is lawful, reasonable and procedurally fair in
terms of section
33 of the Constitution of the Republic of South Africa, No 108 of
1996 is thereby infringed.
[9]
It
was further contended on behalf of UPUSA that the Labour Apeal Court,
may also well disagree with the finding by the Court a
quo that:
"The prejudice
that a union will suffer as a result of de-registration and enforcing
such, even pending appeal, should be weighed
against the public
interest of protecting the interest of union members in particular
that of ensuring that funds contributed are
utilized for the purpose
of benefiting union members”
[10]
The
other basis upon which the applicant seeks leave to appeal is that
the issue at hand concerns the question of interpretation
and in
particular the applicability of s23 and 33 of the Constitution.
[11]
It
was further contended that there is a need for clarity as to the
interpretation of s111 read with s106 of the LRA. In support
of this
contention reliance was placed on the Constitutional Court decision
of
Equity Aviation Service (Pty) Ltd v
Service Commission for Mediation Conciliation and Arbitration &
Other (2008) 29 ILJ 2507
(CC)
.
The judgment of the
court a quo
[12]
There
seem to be no dispute that the real issue which was before the court
a quo was whether the appeal lodged by UPUSA against
the decision of
the Registrar to deregister it in terms of s106 read with s111 of the
LRA suspends the coming into effect of that
decision.
[13]
The
reading of the judgment of the court a quo reveals very clearly, in
my view, that the court in arriving at the decision that
the
launching of the appeal does not suspend the implementation of the
decision of the Registrar is based on the purposive interpretation
of
the relevant provisions of the LRA. In this respect the
Constitutional Court in
Equity Aviation
(supra)at paragraph [34]
had the
following to say:
“
[34]
Ordinarily, the primary rule in interpreting legislation is to
determine the meaning of the words used in the relevant statute
according to their natural, ordinary or primary meaning and also in
the light of their context, including the subject-matter of
the
statute and its apparent scope and purpose. The provisions of the LRA
must be purposively construed to give effect to the right
protected
by s 23(1) of the Constitution that is enjoyed by both employers and
employees. (Footnotes not included)
”
[14]
In
my view UPUSA has incorrectly read the judgment when it says that the
court in arriving at the conclusion as it did was influenced
by the
decision of Van Niekerk J, involving the urgent application which
UPUSA had launched which is reported in
United
Peoples Union of SA v Registrar Labour (2010) 31 ILJ 198 (LC).
Reference to that case was made in the context of setting out the
background facts of this matter.
[15]
It
is apparent from the reading of the judgment that the issue before
the
a quo
court, as indicated earlier revolved around the interpretation of the
LRA. In this respect the court found that any interpretation
which
was to be given other the one it gave to the provisions of s111 of
the LRA would lead to absurd results which would defeat
the very
objective of the LRA in as far as the regulation of the internal
affairs of unions were concerned. This court has also
not made a
determination s to the validity or otherwise of the decision of the
Registrar.
[16]
In
arriving at the conclusion that an appeal against the decision of the
Registrar does not suspend its implementation the court
a quo
compared the provisions of the transitional measures in the LRA,
their purpose and contrasted that with the purpose of s106(3)
of the
LRA. The court found that the two provisions in the LRA were
different because they sought to achieve different objectives.
The
court further in this respect found that reading the intention of the
legislation in as far the consequences of filing an appeal
in terms
of s111 of the LRA with reference to the transitional measures would
lead to an absurd results which could never intended
by the
legislature. The court went further to say the following:
“
In
any case the legislature was aware of the consequence which was
provided for under the transitional measures. If the legislature
wished to have the provisions of the transitional measures read into
s 106 in the event of an appeal then it would have been states
such.
[17]
After
placing the object of s106 of the LRA within the context of Freedom
of Association and the rights acquired by a trade union
in
registering in terms of the provisions of the LRA, the court had the
following to say:
[32] The
objects of s106 read with s111 (3) of the LRA must also be understood
in the context that the legislature
having created an environment and
a frame work for the guaranteed and enjoyment of the Freedom of
Association in form of trade
unions, also sought to ensure that
certain minimum duties of transparency and accountability are imposed
on the trade unions. The
need for accountability arises from the fact
that trade unions, as public entities, depends largely on financial
contributions
from the workers who are members of the public. It
cannot be denied that the decision of the Registrar to de-register a
trade union
has serious consequence on that union as an entity and
its members. As an entity the decision of the Registrar, is likely to
have
a profound impact on its structures and its operations including
the right to represent its members in various dispute resolution
processes. It further cannot be denied that there exists a
possibility that the Registrar in arriving at the decision to
de-register
a trade union may be based on an incorrect interpretation
of facts before him or her or other invalid reasons which may
ultimately
result in the decision being overturned on appeal.
[33] The
prejudice that a union may suffer as a result of de-registration and
enforcing such, even pending appeal,
should be weighed against the
public interest of protecting the interest of union members in
particular that of ensuring that funds
contributed are utilized for
the purpose of benefiting union members. This simple accountability
principle is founded on the notion
that a union occupies a position
of trust as concerning the management of the funds contributed by
members. In short the provisions
of s 106 of the LRA are protective
in nature, intended to protect the vulnerable workers from abuse of
their trust by unscrupulous
union officials whose involvement in a
union may be for no other reason but to advance their selfish
business interest.
[34] If
assuming that the decision of the Registrar is patently wrong and is
based on incorrect facts, then the
union is not without a remedy. The
remedy available to the union is to approach the court for an order
suspending the decision
pending appeal. Of course one of the things
that the union would have to show in approaching the court on this
basis would be to
show that it will suffer prejudice if the decision
is not suspended pending the appeal and that it has prospects of
success on
appeal.
[35] The
prejudice argument would probably have supported the interpretation
of the CCMA had one of the consequences
of de-registration been to
render the continued operation of such a union illegal. In our law
the existence and operation of unions
is not based on registration
but as indicated earlier on the principle of respect and guarantee of
Freedom of Association. Thus
a de-registered union can continue
operating even after the de-registration. The consequence of
de-registration is simply that
the rights and benefits given to the
union by the very law, which it had failed to obey, is taken away.
[36] In
summary the declerator which the CCMA sought in terms of this
application stands to fail. It is therefore
my view, firstly that the
general common law rule practice that an appeal stays the enforcement
a judgment pending the outcome
of an appeal does not apply to
decisions made by the Registrar in terms of s 106 of the LRA.”
[18]
The
two key principles that emerges from that judgment are the following:
1 In
terms of the proper interpretation of the LRA, the lodging of an
appeal against the
decision of the Registrar made in terms of s111 of
the LRA, does not automatically suspend the implementation of the
decision of
the Registrar.
2 A
union wishing to have the decision of the Registrar suspended pending
the outcome of
the appeal against the decision of the Registrar made
in terms of s106 of the LRA can approach the court to have the
implementation
of the decision suspended pending the out of the
appeal.
Evaluation
[19]
In
the first instance, I do not agree with the applicant that there are
deferent approaches between the approach adopted by this
court and
the one by the High Court. The High court authorities which the
applicant relied on in this case are cases where the
statute
expressly provides for the suspension of an administrative decision
pending the outcome of the appeal. The issue in this
matter concerned
the interpretation of the LRA. I found no judgment nor did the
applicant refer me to any judgment of the High
court that made a
decision regarding the provisions of s106 read with s111 of the LRA.
The decision that is illustrative of the
approach that the High Court
have adopted can be found in the case of
Van
Royen v Minister of Minerals and Energy
2010 (1) SA 104
(C)
,
wherein the court had to deal with the issue of compensation for
expropriation of mineral rights in terms of the
Mineral and Petroleum
Resources Development Act 28 of 2002
. The plaintiff in that matter
filed claim against the decision of the Director –General for
holding that the plaintiff did
not have a valid claim. Following the
decision of the Director-General the plaintiff had in terms of
Regulation 82A(5)
of the Mineral and Petroleum the right to appeal to
the Minister.
Section 96
of the Mineral and Petroleum provides:
“
96.
Internal appeal process and access to courts.
—
(1)
Any person whose rights or legitimate
expectations have been materially and adversely affected or who is
aggrieved by any administrative
decision in terms of this Act may
appeal in the prescribed manner to—
(
a
) the
Director-General, if it is an administrative decision by a Regional
Manager or an officer; or
(
b
) the
Minister, if it is an administrative decision by the Director-General
or the designated agency.
(2)
An appeal in terms of
subsection
(1)
does not suspend the administrative decision, unless it is suspended
by the Director-General or the Minister, as the case may be.
[20]
The
court in
Van Royen (supra)
in
the middle of paragraph 20 of that judgment held that:
“
An
appeal does not suspend the decision. No person may apply to court
for a review of an administrative decision until that person
has
exhausted his or her remedies in terms of section 96(1). Section
96(4) specifically makes sections 6, 7(1) and 8 of PAJA applicable
to
court proceedings in terms of the section. The gist of the argument
is that administrative decisions, having been made, cannot
be ignored
and remain valid until set aside, bearing in mind that an unlawful
administrative act produces legally valid consequences
for so long as
it is not set aside.”
[21]
I
also do not agree with the interpretation given to the case of
Equity
Aviation by the applicant. There is nothing in that judgment that
says leave to appeal should automatically be grant whenever a
court
deals with an interpretation of legislation. Of course the fact that
the court was dealing with an interpretation of legislation
is a
factor to consider in assessing the prospect of another court
arriving at a decision deferent to its decision. In applying
that
test, I am not persuaded that another court may simply on the basis
of the fact that this matter involved interpretation of
the LRA
arrive at a deferent conclusion to the one reached by this court.
[22]
In
my view, there is no reasonable prospect that the Labour Appeal Court
may arrive at a conclusion different to the one reached
by this court
in that judgment. My view in this regard is strengthen by the case of
National Police Service Union v The
National Commissioner of the National Police Service and Others
(1999) 20 ILJ 2408 (LC).
[23]
Although
in
National Police Union,
the court was dealing with the provisions of clause 6(7) of the South
African Police Regulations R1489 of 1995, the principle enunciated
therein is apposite the present matter. Having obtained leave to
appeal from the Labour Court the union in that matter sought to
have
the decision of the Commissioner of Police which deregistered it from
National Negotiating Forum of the SA Police Services,
suspended
pending the outcome of the appeal from the Labour Appeal Court. The
decision to deregister the union arose from the fact
that it had lost
the threshold requirements for representivity in the forum.
[24]
In
National Police Service Union the court
refused to stay the decision to
deregister the union pending the outcome of the appeal which was to
be heard by the Labour Appeal
Court. It should be noted that in that
case the union sought to have the decision to deregister it suspended
after it obtained
leave to appeal from the Labour Court to the Labour
Appeal Court. In the present instance the stay, based on the common
law principle
is sought pending the outcome of the appeal by the
Labour Court in terms of s111 of the LRA.
[25]
Marcus
AJ, in refusing to grant the stay of execution of the decision to
deregister the union in
National Police
Service Union,
had the following to
say:
“
[18] In
my view, the same approach governs the present application. The
union's argument
(which was that leave
to appeal suspended the decision to deregister it)
would
lead to absurd consequences. It would entail that where, for example,
a court of review declines to set aside a refusal to
grant a liquor
licence, the noting of an appeal would have the effect of awarding
that licence.”
[26]
It
needs to be emphasized that the proper functioning of the machinery
of the LRA would be considerably frustrated and rendered
ineffective
if the decision of Registrar was not given effect or was to be
ignored pending the outcome of the appeal. It cannot
be denied that
the possibility exist that the decision of the Registrar may once
tested on appeal prove to be wrong. It should
however be born in mind
that our law accepts that an unlawful administrative act is capable
of producing legally valid consequences
as long as the act is not set
aside. In the present instance the decision of the Registrar will
remain valid until set aside. In
the earlier judgement I accepted
that there will be some prejudice suffered by a deregistered union.
However, that prejudice is
outweighed by the accountability and
protective considerations set out in the LRA. I also stated that if
there are good prospect
on appeal the union could avoid such
prejudice by approaching the court and seek an order to have the
decision stayed pending the
outcome of the appeal. I am also of the
view, noting that matters of this nature concerns Freedom Association
that a union or employer’s
organization should be entitled to
approach the court for a directive to have the hearing of the appeal
expedited.
[27]
As
indicated earlier in this judgment, I am thus not convinced that
there are reasonable prospects that another court may come to
a
different conclusion to the one reached by this court when it held
that the appeal launched by UPUSA did not suspend the decision
by the
Registrar to deregister it from taking effect.
[28]
In
the premises the applicant’s application for leave to appeal to
the Labour Appeal Court is refused.
Molahlehi
J
Judge
of the Labour Court
Date
of the hearing: 11
September 2010
Date
of the judgment: 21
st
October 2010
Appearances:
For
the applicant: MM
Baloyi of Baloyi Attorneys
Matter
unopposed.