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[2010] ZALCJHB 42
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National Entilted Workers Union (NEWU) v Commission for Conciliation, Mediation and Arbitration and Others (JR1002/05) [2010] ZALCJHB 42 (22 October 2010)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
IN JOHANNESSBURG
REPORTABLE
CASE
NO: JR1002/05
In
the matter between:
NATIONAL
ENTILTED WORKERS
UNION
(NEWU)
A
pplicant
and
COMMISSION
FOR CONCILIATION
MEDIATION&
ARBITRATION
1
st
R
espondent
C.N.
MBHELE N.O.
2
nd
R
espondent
CINQPLAST
PLASTOP (PTY)
LTD
3
rd
R
espondent
MINISRTY:
JUSTICE AND
CONSTITUTIONAL
DEVELOPMET
REPUBLIC
OF SOUTH
AFRICA
4
th
R
espondent
THE
MINISTER: JUSTICE AND
CONSTITUTIONAL
DEVELOPMENT
REPUBLIC
OF SOUTH AFRICA
(HONOURABLE
MINISTER
BRIDGETE
MABANDLA)
5
th
R
espondent
MINISTRY:
LABOUR
REPUBLIC
OF SOUTH
AFRICA
6
th
R
espondent
THE
MINISTER OF LABOUR
REPUBLIC
OF SOUTH AFRICA
(HONOURABLE
MINISTER
MEMBATHISI
MDLADLANA)
7
th
R
espondent
JUDGMENT
Molahlehi J
Introduction
[1]
This matter came before this
court as a review application on the 14 August 2010. The review
application which was initiated during
May 2005 was preceded by other
applications which resulted in a number of orders and judgments by
various judges. When the matter
came before this court in August
2010, the court issued a directive on requiring the parties to
address it on the following
issues:
4.
1
The locus standi of the Applicant and its President to pursue these
proceedings against the de-registration
process of the
Applicant.
4.2.1
A
proper interpretation of the order made by His Lordship, Broster, AJ,
in the light of the subsequent decisions of this Honourable
Court in
the
CCMA
v The Registrar of Labour Relations
(the judgment of
His Lordship, Molahlehi, J on the legal effect of section 111 appeal
of the LRA) and the judgment of Her Lordship,
Basson, J in
Unica
Plastic Moulders CC v National Union of South African Workers
,
of which judgment concurred with the judgment in the CCMA matter.
4.2.2
The
impact of the negative remarks made from time to time in the
judgments of this Honourable Court and the Labour Appeal Court
pertaining to the conduct of the Applicant and its
President Mr Maluleke to be considered in determining whether
it will
be in the interest of justice not to afford the Applicant locus
standi in this matter where it seeks organizational rights,
pending
the final determination of its appeal in terms of section 111 of the
Labour Relations Act regarding its de-registration.”
[2]
The essence of the issue
that arose when the review application was to be heard in August 2010
was whether NEWU had
locus
standing
to represent itself and or its members in the light of its
de-registration as a union by the Registrar of the Labour Relations
(the Registrar) in terms of s111 of the Labour Relations Act 66 of
1995 (the LRA). It is common cause that NEWU has been deregistered
as
a union by the Registrar.
[3]
For the purposes of this
judgment I do not intend dealing with the details relating to the
de-registration of NEWU as those details
are dealt with in the papers
submitted by the parties. I intend focusing on the following
issues:
1.
The binding effect of
the order made by Broster AJ in the matter of
National
Entitlement Workers Union and others
under case number J2189/06;
2
.
The impact and implication of comments made about the official
of NEWU,
Mr Maluleke regarding his role and conduct that forms
part of the reasons for the de-registration of NEWU.
[4]
It is common cause that NEWU
initiated an urgent application under case number J2189/06,
wherein it sought an order
that the decision to de-registrater
it as a trade union be stayed or suspended pending the outcome
of the appeal launched
in terms of s111 of the LRA. The relevant part
of the order granted arising from that urgent application which seems
to have been
granted by consent, by Broster AJ reads as follows:
“
As
a result the Applicant having filed its appeal in terms of
section
111
of the
Labour Relations Act, execution
of deregistration of the
Applicant is suspended pending the outcome of the appeal.”
[5]
The submissions made by the
parties in as far as the status of the order made by Broster AJ
centered around the issue of
stare
decisis
.
NEWU argued that the order was subsequent to its issuance binding on
all judges and that the court in
Stanley
Jacobs v AG Aluminum and others
unreported case number J879/08, was wrong and that this court should
not follow it.
[6]
The seventh respondent, the
Minister of Labour (the Minister) on the other hand argued that the
order granted by Broster AJ was
in effect the consequences of a
settlement agreement “
premised
on wrong legal principles which was made an order of Court.”
The Minister further
argued that the cases to follow which were binding on this court were
those in
Stanley
Jacobs and the CCMA v The Registrar of Labour Relations and others,
unreported case number J984/10.
In
Stanley
Jacobs
the court in arriving at the conclusion that NEWU and its officer, Mr
Maluleke were not entitled to represent its members before
the Labour
Court pending the outcome of its appeal against the decision of the
Registrar largely relied on the decision in the
CCMA’s case.
The court in that case further held that it was not bound by the
order made by Broster AJ.
The
legal consequences of deregistration of a trade union.
[7]
In the CCMA’s, case
referred to above, this court summarized the statutory framework
relating to deregistration of trade union
as follows:
“
[15]
The requirements for registration of trade
unions are dealt with in terms of the provisions of
s95
of the LRA.
And once registered a trade union derives certain rights and benefits
from its status as a registered union. A registered
trade union that
is sufficiently representative of the workers in the workplace is
entitled to certain organizational rights such
as access to the
workplace, the payment of union dues, appointment of union
representative and the right to represent its members
in the labour
relation process that may take place at the workplace including those
at the CCMA.
[16]
However, in order to retain that status there are certain obligations
which the LRA imposes on the union. In this
respect the union is
obliged in terms of
s99
of the LRA to maintain a list of its members,
minutes of meetings and ballot papers for specified period.
[17] If a
trade union is de-registered it will lose the rights and benefits
referred to above, including more importantly
for the purposes of
this judgment the right to represent members in the CCMA
proceedings.”
[8]
The court went further at
paragraphs [35 ] and [36] of that judgment to say the following:
“
[35]
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.
[36] 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.”
[9]
For the purposes of this
judgment the most important principle, if it was to be referred
as that, is what is stated in paragraph
[37] of the CCMA’s
judgment where the court had the following to say:
“
[37]
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.”
[10]
The key principles of the CCMA’s judgment
are summarized by this court in
United
Peoples Union of South Africa v The CCMA
and others
unreported case number J894/10 at paragraph [19] as follows:
“
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. “
[11]
The other important principle from the CCMA’s
case, which has not been stated in so many words, is that the
de-registration
of a trade union does not dissolve that union as a
voluntary association. This means a de-registered trade union is
entitled to
continue its existence in terms of the right to Freedom
of Association. A de-registered trade union does however; lose
certain
rights accorded to it by virtue of registration in terms of
the LRA. One of the rights which a de-registered trade union loses
due to de-registration is the right to represent its members before
all the statutory dispute resolution bodies. In respect of the
court,
a de-registered trade union loses its right of appearance accorded to
it in terms of
s161
of the LRA, the relevant part reads as follows:
“
In any
proceedings before the Labour Court, a party to the proceedings may
appear in person or be represented by-
(a)
(b)
(c)
any member, office- bearer or official of that party’s
registered trade union or registered employer’s
organization.”
[12]
In my view, the principle enunciated in the CCMA’s
case which says that a de-registered trade union is entitled to
approach
the court to have the decision to de-register it stayed
pending the outcome of the appeal against the decision of the
Registrar,
is in fact a remedy to a de-registered trade union in the
same way as a litigant in any other matter where stay of execution is
stayed pending further litigation. In this respect the court has a
wide discretion to grant or refuse stay of proceedings. In granting
the stay of proceedings that court is entitled to impose whatever
conditions it deems fit in ordering the stay of those proceedings.
See
South Cape Cooperation (Pty) Ltd
v Engineering Management Services (Pty) Ltd
1997 (3) SA 534
(A).
It has been held that the discretion to grant or refuse leave to stay
execution is part and parcel of the inherent jurisdiction
of the
court to control its own judgment. In my view this principle applies
also to the stay of execution of decisions made by
other institutions
of the LRA, in as far as the court has a supervisory role over them.
[13]
In National Union Police Service v
Commissioner of the National Police Service and others (1999) 20 ILJ
2408 (LC)
, the court held that in
exercising the discretion whether or not to grant a stay of the court
should determine what is just and
equitable in the circumstances. The
court in that case went further to say that in exercising that
discretion the court should
take into account the following factors:
“
1.
The potentiality of irreparable harm
or prejudice being sustained by the
appellant on appeal (respondent
in the application) if leave to execute were to be granted;
2.
The potentiality of irreparable harm or
prejudice being sustained by the respondent on appeal (applicant in
the application) if
leave to execute were to be refused;
3.
The prospects of success on appeal including more particularly the
question as to whether the appeal
is frivolous or has been noted not
with the bona fide intention of seeking to reverse the judgment but
for some indirect purpose
e.g. to gain time or harass the other
party;
4.
Where there is the potentiality of irreparable harm or prejudice to
both applicant and respondent
the balance of hardship or convenience,
as the case may be.”
[14]
In my view, in cases concerning stay of execution
of the decisions of the Registrar, in particular de-registering a
trade union
or employer’s organization further consideration
should be given to the input that refusal to grant a stay has on
Freedom
of Association pending the outcome of the appeal. Of course
this must be weighed against the public interest which was referred
to in the case of the CCMA.
[15]
In practice the stay of execution of decisions in
the Labour Court is a daily occurrence in particular in relation to
the enforcement
of arbitration awards. The application to stay the
execution of the decision of the Registrar has recently became a
common phenomenon.
In the UPUSA matter this court in dealing with the
consequences of an administration act in the middle of paragraph [27]
said the
following:
“
[27]
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 accept that an unlawful administrative act is
capable of producing legally valid
consequences as long as the act is
not set aside.”
[16]
The above principle, in my
view applies to orders granted by the court. It is for this reason
that I take a different approach to
the one taken by my sister Basson
J in
Stanley
Jacobs
.
It is important to note that the parties which were involved in the
matter before Broster AJ are the same as those in the present
and
importantly the Minister of Labour. The argument that the order was
granted on the basis of a negotiated settlement based on
wrong
principles is not sustainable. The fact of the matter is that an
order of court which has took effect since November 2006.
The
Minister of Labour and any of the others parties have never deemed it
necessary to appeal and have it set aside. It is
therefore my
view that an order issued by a court is final unless it is set aside
by way of rescission or appeal.
[17]
I have stated earlier in
this judgment that it has became a common phenomenon to have the
execution of the Registrar’s decision
stayed pending the
outcome of the appeal in terms of
s 111
of the LRA. Orders similar to
the one granted by Broster AJ were granted by judges in the following
matters
:
Agricultures
Employer’s Organization v Registrar
of
Labour
Relation
case
number J2391/05, dated 6 August 2008,
Retail
& Allied Workers Union (RAWU) v Registrar of Labour Relations
case
number J 2686/07 dated 27 November 2007,
Togetherness
Amalgamated Workers Union of SA v Registrar of Labour Relations case
number J1502/08, RAWU obo Nqwelethana v Mashaba
NO & Others
case
number JR 1777/06 dates 11 February 2010 and the
Agricultural
Employers
Organization
v Registrar
of
Labour Relations case number J239/05
dated
4
th
December 2005.
The impact of remarks
made against Mr Maluleke, in relation to his right to present NEWU in
court proceedings.
[18]
In as far as the above issue
is concerned reference has to be made to the order made by Broster
AJ. In exercising the discretion
of suspending the decision of the
Registrar the Learned Judge imposed no condition on such suspension.
In other words the order
had no provision that the suspension of the
decision was made on condition that Mr Maluleke should not be allowed
to appear for
and on behalf of NEWU pending the outcome of the
appeal.
Summary
of the reasons
[19]
NEWU has been deregistered
by the Registrar of the Labour Relations in terms of
s 106
of the
LRA.
NEWU
applied and successfully obtained an order during 2006, from Broster
AJ, staying the implementation of the decision of the
Registrar
pending the outcome of the appeal it launched in terms of
s 111
of
the LRA. The appeal is still pending.
[20]
In the absence of the
reasons been given for the order by Broster AJ, it seems to me that
the only reasonable conclusion to arrive
at is that, the Learned
Judge in making that order took into account factors relevant to the
consideration of whether or not that
stay of proceedings should be
granted. In other words the Learned Judge was satisfied that NEWU had
made out a case for granting
a stay of execution of the decision to
de-register it by the Registrar. The order in its proper reading is
very wide and did not
limit itself to the matter which was before
Broster AJ.
[21]
The order made by Broster AJ
has never been set aside and therefore remains valid until ruled
otherwise by a Superior Court.
[22]
In the premises the
following order is made:
1.
NEWU has the
right to represent and appear on its own behalf and represent its
members in terms of
s 161
of the
Labour Relations Act 66 of 1995
, on
the authority of the order which was made by the Labour Court under
case number J 2189/06.
2.
The official
of NEWU, Mr Maluleke, and NEWU as a union has the right to appear in
any case before this court and any other statutory
dispute resolution
to represent members and NEWU as a union before the court pending the
outcome of the appeal.
3.
The review
application is postponed to a date to be arranged with the Registrar.
_______________
Molahlehi
J
Date
of Hearing :
13 August 2010
Date
of Judgment :
22 October 2010
Appearances
For
the Applicant :
Union Official Mr Maluleke from NEWU
For
the Respondent: Adv P.L.
Mokoena
Instructed
by :
State Attorney