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[2010] ZALCJHB 369
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General Domestic And Professional Employers Organisation v Registrar of Labour Relations (J1620/2010) [2010] ZALCJHB 369 (19 November 2010)
IN
THE LABOUR COURT OF SOUTH AFRICA
(HELD
AT JOHANNESBURG)
CASE
NO: J1620/2010
In
the matter between
GENERAL
DOMESTIC AND
PROFESSIONAL 1st
Applicant
EMPLOYERS
ORGANISATION
and
REGISTRAR
OF LABOUR
RELATIONS 1st
Respondent
JUDGMENT
LAGRANGE,
J
Introduction
[1]
The applicant (‘the GDPEO’) was a registered employer’s
organization until its deregistation by the registrar
of Labour
Relations (‘the registrar’) on 27 July 2010.
[2]
It lodged a notice of appeal against the registrar’s
decision on 6 August 2010 with this court in terms of section 111 of
the Labour Relations Act 66 of 1995 (‘the LRA’). The
Applicant firstly seeks declaratory relief that, as a matter of
law,
the lodging of an appeal under section 111 automatically suspends the
registrar’s decision to deregister it. Alternatively,
it seeks
interim relief suspending the effect of the decision pending the
outcome of its appeal
.
[3]
The respondent raised
in limine
objections in its
answering affidavit to the application, but these were not persisted
with in argument before the court, so need
not be addressed.
Suspension
of de-registration pending the outcome of an appeal as matter of law
Previous
decisions of the Labour Court
[4]
In
Unica
Plastic Moulders CC v National Union of South African Workers
[1]
,
Basson J considered an application to interdict the respondent union
from interfering with the applicant’s business and
employees.
The union had been de-registered and an appeal had been lodged with
this court against the registrar’s decision
to de-register it.
In the course of considering what rights the de-registered union
might have retained, the learned judge was
compelled to deal with the
effect of the pending appeal on the union’s status.
[5]
Basson J concluded that, as a matter of law, the noting of an appeal
against the Registar’s de-registration decision does
not
suspend the effect of the decision for the following reasons:
[5.1]
Firstly,
section 106(3) of the LRA conveys an unequivocal intention on the
part of the legislature that all rights enjoyed by a
trade union will
end with de-registration.
[2]
[5.2]
Even though
section 106(3) does not state expressly that the registrar’s
decision is not suspended pending an appeal, it must
be implied
having regard to how the effect of de-registration of trade unions or
employer organizations that was dealt with under
the transitional
provisions of Schedule 7 of the LRA.
[3]
[5.3]
Thirdly,
academic authorities support the proposition that despite the common
law position that noting an appeal suspends the effect
of the
decision appealed against, if
an
appeal is noted against an administrative decision taken in terms of
statutory powers, it depends on the enabling statute whether
or not
the common law presumption will apply.
[4]
[5.4]
Fourthly,
the court held that there was
an
important public policy consideration as to why the rights of a trade
union should come to an end when it is de-registered by
the registrar
(pending the appeal), namely that “…
a
trade union is in a position of trust vis à vis its members
and as such is entrusted with ensuring that the employee is
treated
fairly by his or her employer in the workplace. A registered trade
union is further allowed to represent its member at
the CCMA, the
Bargaining Council and the Labour Court and is as such in a similar
position as an attorney or counsel. From a public
policy point of
view a trade union should not be able to enjoy the rights afforded to
a registered trade union if it has flaunted
the very act from which
these rights are being derived
.”
[5]
[5.5]
The court
found further support for its thinking in the judgment of Molahlehi,
J in
CCMA
v Registrar of Labour Relations & Others
(CASE
NO: J984/10) dated 27 July 2010
,
where he also found that the registrar’s decision to deregister
is not suspended pending the outcome of the appeal in terms
of
section 111(3) of the LRA. The learned judge agreed with the
assessment of Molahlehi J of the objects of the LRA in respect
of
trade unions, citing the following passages from his judgment:
[6]
“
[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. “
[5.6]
Basson J continued:
“
[23]…There
is no doubt that trade unions play an important role in the workplace
and in that sense fulfill an important social
responsibility towards
employees who in most instances have no other recourse than the trade
union who will then be entrusted to
ensure that he or she is treated
fairly by his or her employer. Where the union is registered, the
union has the further right
of representing the employee at the CCMA,
Bargaining Council and the Labour Court. Commissioners, Arbitrators
and Judges expect
of union representatives to diligently and honestly
serve the interest of their members. They have, after all, been
granted the
privilege and right to be able to represent their members
by virtue of them having complied with the statutory provisions of
the
LRA. I am therefore in agreement with my learned brother
Molahlehi, J that a trade union should not be able to represent these
vulnerable workers if their conduct has been found to be unscrupulous
by the registrar of Labour and especially where the registrar
of
Labour finds that the union is no longer operating as a genuine
trade union but is being used to advance the selfish business
interests of individuals. See further CCMA v registrar of Labour
Relations (supra):
“
[38] 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. “
[24] The fact that a
trade union will no longer be able to exercise organisational rights
in terms of the LRA is an unfortunate
consequence. However, the union
only has itself to blame. See in this regard United People’s
Union of South Africa v registrar
of Labour Relations (Case no J
2178/09)
[7]
:
“
[10] Mr.
Lengane, who appeared for UPUSA, made much of the consequences that a
refusal to grant interim relief would visit on UPUSA.
Indeed, those
consequences have already manifested themselves in the form of the
withdrawal of recognition and organisational rights
by a number of
employers following on the registrar’s decision. This may be
so, but UPUSA has only itself to blame. Trade
unions are public
institutions, not private businesses. The act of registration confers
many benefits on those trade unions that
seek to be registered. But
these benefits come at the price of submission to the reporting
requirements established by section
100 of the LRA, all of the
requirements that are intended to provide a guarantee to union
members that their membership subscriptions
have been utilised to
further their interests. A failure by a registered trade union to
comply with section 100 and to keep books
of account and records to
the standard required by section 98 undermines this statutory
guarantee. Ultimately, it is the registrar
who is the underwriter of
this warranty, and like all underwriters, the registrar must protect
the general interest at the expense
of the particular when this is
necessary. The registrar is accountable to the public as a whole
should a registered trade union
(or employers’ organisation,
for that matter) fail to implement the required financial and
administrative controls, and a
degree of due diligence by the
registrar in enforcing the relevant requirements of the Act is
therefore necessary.
”
[6]
Basson J reiterated these views in a subsequent decision in the case
of
Lowveld General and Allied Employer’s Organisation v
Minister of Labour & others (unreported judgment, case no 2431/09
dated 22 October 2010)
, in that instance involving an
employer’s organisation
.
[7]
In
UPUSA
v registrar of Labour Relations
(2010)
31
ILJ
198
(LC
),
Van
Niekerk J also had to determine whether to allow a de-registered
union to continue to exercise the rights of a registered union
pending the outcome of its appeal against the registrar’s
decision to de-register it. In that case, the learned judge noted
that the union based its claim on the ordinary test for interim
relief and did not rely on a distinct legal right to continue to
exercise such rights.
[8]
The
court then decided the application on the ordinary test for granting
interim relief which entailed,
inter
alia¸
assessing
the union’s prospects of success in the appeal.
Analysis
of the argument in casu
[8]
In this matter, the applicant seeks to persuade the court that the
decision in the
CCMA
case was wrongly decided. It attacks the
reasoning in that decision on a number of grounds.
[9]
Firstly,
the applicant argues that the court in
CCMA
adopted
the wrong approach when interpreting the statute. The court should
first have accepted that the starting point is the common
law
principle that the lodging of an appeal suspends the operation of the
decision appealed against. Then the court should have
asked if it was
an unavoidable conclusion that the statute intended to alter the
common law position, instead of concluding that
if the legislature
had wanted the lodging of an appeal to stay the effect of the
registrar’s decision, it would have said
so expressly.
[9]
In this regard the applicant cites,
inter
alia,
the dictum in
Casserley
v Stubbs
1916 TPD 310
at 312, viz:
“
It
is a well known canon of statutory construction that we cannot infer
that a statute intends to alter the common law. The statute
must
either
explicitly
say that it is the intention
of the legislature to alter the common law, or the inference from the
Ordinance must be such that
we can come to
no other
conclusion
than that the Legislature did not have such an
intention.
” (applicant’s emphasis)
[10]
The applicant urged the court to accept that if the court in
CCMA
had been alerted to the argument above, it would have approached
the matter differently and would not have followed the purposive
approach it adopted in interpreting the LRA.
[11]
I agree that there is nothing in the
CCMA
judgment which
suggests that the common law proposition in
Casserley
was
argued before my brother in that matter. In the
UPUSA
case it
was also not raised as an issue because of the way the matter was
approached. However, in the
Unica
case too, it seems that the
only common law point advanced was the principle that unless a
statute provides otherwise, the lodging
of an appeal suspends the
operation of the decision appealed against pending the outcome of the
appeal. Here too it seems the principle
of not departing from the
common law unless expressly provided for, or unless it is an
unavoidable inference to be drawn, was not
specifically raised.
[12]
The
applicant reiterates the argument that was considered in the
Unica
case
that the suspension of the decision appealed against applies not only
to decisions of a court but also to administrative decisions.
It
cites the most recent authority for this proposition being the
judgment in
Max
v Independent Democrats and Others
2006 (3) SA 112
(C)
.
That matter concerned an appeal of a member of a political party
against a decision to expel him for ‘floor-crossing’.
He
sought an interdict suspending his expulsion pending the outcome of
his appeal. The learned judge Davis, J held that there was
nothing in
party’s code of conduct to suggest that the rule of automatic
suspension of the decision should not apply.
[10]
The code only provided for a right of appeal against the decision.
The court’s thinking was also reinforced by a consideration
of
the impact of an expulsion on the affected individual and the role of
individual MPs in a deliberative democracy. Further, the
court
considered the practical implications of not suspending the expulsion
decision pending the appeal if the errant member was
then replaced in
parliament by another member of the party before the appeal was
heard.
[11]
[13]
Before looking at the LRA, a look at some of the authorities cited in
the
Max
and
Unica
decisions is useful.
[14]
Baxter gives the following example of appeals against decisions of a
local road transportation board under the Road Transportation
Act:
“
In the case of
private disputes the effect at common law of noting an appeal is to
suspend the operation of the decision appealed
against. But the
right of appeal against decisions taken in terms of statutory powers
is dependent upon the enabling statute.
The common-law principle can
constitute no more than a presumption in the case of administrative
decisions, and this presumption
may well be negatived by the
implications of the statute. Take the Road Transportation Act, for
example. A dissatisfied party may
appeal to the NTC against the
decision of a local road transportation board. Application may also
be made to the chairperson of
the NTC who has the power to suspend
the decision of the local board pending the outcome of the appeal.
The
fact that such power was conferred on the chairman has led a court to
the conclusion that the common-law principle (that a decision
appealed against is automatically suspended) could not have been
intended to apply in cases where such a suspension order is not
made-for otherwise there would be no necessity for conferring the
suspending power on the chairman
.
”
[12]
(emphasis added)
[15]
The court in
Max
also had regard to the passage in De Ville’s
Judicial Review of Administrative Action in South Africa
at
334, cited with approval in
Unica
, where the author
contends:
'
Where an appeal is
allowed against an administrative decision the decision appealed
against will (unless the statute in question
provides otherwise) take
effect only once the period for appeal has expired (and the person
affected has not made use of the opportunity)
or the decision has
been confirmed on appeal (where the person affected makes use of the
opportunity to appeal).
The
judging of an appeal against an administrative decision thus suspends
the decisions being appealed against until such time as
that decision
is taken on appeal.
'
[16]
It seems to me that the fundamental question to be answered is
whether the provisions of the LRA do make it clear that the
legislature intended to alter the common law position, either
expressly or because no other conclusion can be drawn. I accept the
statement of the principle of interpretation stated by the court in
Casserley’s
case. I also am in agreement with the
principle that an administrative decision is also suspended pending
the outcome of an appeal
against that decision, in the absence of a
statutory provision to the contrary. The combined effect of these
principles is that
a departure from the second should only be
permitted if express provision is made for it in the statute or it is
an unavoidable
conclusion that the legislature could not have
intended it to apply.
[17]
I do not
agree with the applicant that nothing in the LRA indicates a
legislative intent to abrogate the principle of suspending
the effect
of the decision appealed against. In both the
Unica
and
CCMA
matters
the judges made reference to the transitional provisions which
applied to appeals against de-registration, which are set
out
Schedule 7 of the LRA. in Item 5(8)(b) of Schedule 7 expressly
provided for the suspension of the cancellation of the registration
of a union or employers’ organisation which had been registered
under the previous LRA,
[13]
provided the body timeously lodged an appeal against the registrar’s
decision, in which case the effect of the registrar’s
cancellation was to be suspended until the outcome of the appeal.
That appeal still had to be made under the provisions of section
111(3) of the LRA, which is the same procedure that applies to unions
and employer organizations registered after the inception
of the new
Act.
[18]
Despite the legislature specifically applying its mind to the
suspension of the cancellation of a previously registered union
and
addressing that appeal under the provisions of section 111(3), the
LRA contains no analogous provision to Item 5(8) which applies
to
unions or employers’ organizations registered since the Act’s
commencement. In my view, it is inconceivable
the legislature
would have included Item 5(8) for previously registered organisations
but simply forgot to consider the position
when it came to newly
registered organizations. Moreover section 106(3) unequivocally
states: “
When a trade union’s or employers’
organisation’ is cancelled, all the rights it enjoyed as a
result of being
registered will end.
” Reading this
provision together with Item 5(8) and section 111, I am driven to the
conclusion that even though it did not
expressly say so, it is an
unavoidable conclusion that the legislature did not intend the common
law principle of the suspension
of an administrative decision to
apply when an appeal is lodged under section 111(3) against the
registrar’s decision.
[19]
Accordingly, the applicant’s claim that an appeal against the
de-registration decision of the registrar automatically
suspends the
effect of that decision is dismissed.
Claim
for Interim Relief
[20]
The fact that there is no automatic suspension of the
cancellation of the organization’s de-registration does not
mean it cannot apply for relief from this court in the same way that
a party can apply for relief notwithstanding the default position
that an appeal normally stays the execution of the decision appealed
against. Here the default position is that it is not stayed,
and the
applicant is asking the court to grant an exception to the default
position. In so doing, it seems appropriate that the
court must apply
the same principles enunciated in the decision in
South Cape
Corporation (Pty) Ltd v Engineering Management Services (Pty) Ltd
1977 (3) SA 534
(A)
cited with approval by the Constitutional
Court in
Minister of Health v TAC
[2002] ZACC 16
;
2002 (5) SA 703
(CC)
. In the
South Cape
judgment the court held
that:
“
The Court to
which application for leave to execute is made has a wide general
discretion to grant or refuse leave and, if leave
be granted, to
determine the conditions upon which the right to execute shall be
exercised (see Voet, 49.7.3; Ruby's Cash Store
(Pty.) Ltd. v Estate
Marks and Another, supra at p. 127). This discretion is part and
parcel of the inherent jurisdiction which
the Court has to control
its own judgments (cf. Fismer v Thornton,
1929 AD 17
at p. 19). In
exercising this discretion the Court should, in my view, determine
what is just and equitable in all the circumstances,
and, in doing
so, would normally have regard, inter alia, to 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 vexatious 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; and
(4)
where there is the potentiality of irreparable harm or prejudice to
both appellant
and
respondent, the balance of hardship or convenience, as the case may
be.”
[14]
[21]
These factors are evaluated below, though not in the same order
stated.
Prospects
of success on appeal
[22]
The registrar announced his intention to de-register the applicant
because he alleged the applicant had ceased to function
in terms of
its constitution, was functioning for the personal gain of
individuals, and ceased to function as a genuine organisation
as
envisaged by section 106(2A)(a) of the Act.
[23]
It seems
the registrar’s chief difficulty with the applicant concerns
whether or not labour consultants are using the applicant
as a
vehicle to circumvent the provisions of the LRA, which effectively
prevent them from representing employers in various proceedings
under
the Act. It appears that some of the applicant’s members are
consultants and accordingly are able to appear on behalf
of other
employer members of the applicant in proceedings before the CCMA and
the Labour Court.
[15]
[24]
The applicant disputes the validity of the claims for a variety of
reasons, all of which I do not intend to address here.
A few
however need to be mentioned. Amongst the reasons on which it bases
its appeal is that the administrative fees paid by members
simply
cover the administrative and management costs of the organisation and
no individuals derive personal gain from this.
It also claims
that the only occasion the organisation did not operate in terms of
its constitution was in 2006 where it inadvertently
had more
executive committee meeting members than the constitution provided
for, but this was rectified and at the time the registrar
made his
finding the applicant claims it was operating in terms of its
constitution. Lastly, the applicant claims that the
decision to
de-register it was irregular because, despite making a request for
the documents on which the registar’s decision
was based, it
was not provided with the same. The applicant contends by so acting
and by insisting that it was sufficient that
he was satisfied the
applicant was not a genuine employer’s organisation and that
the applicant had been given an opportunity
to make its own
representations opposing the cancellation of its registration the
registrar had not fulfilled the requirements
of
audi alterem
partem.
[25]
I am persuaded that the grounds of appeal mentioned show that the
applicant’s appeal is not necessarily frivolous and
the last
mentioned ground raises an important question of what information,
the registrar ought to provide to a threatened organisation
about the
basis for his finding that it is not a genuine trade union or
employers’ organisation.
Prospects
of irreparable harm and the balance of convenience
[26]
The applicant alleges the following prejudice
inter alia
will
flow from giving effect to the registrar’s decision:
[26.1]
The applicant will no longer
be able to enter into collective
agreements in terms of the LRA;
[26.2]
It will not be able to participate
in the establishment and
functioning of bargaining councils.
[26.3]
It will not be able to pursue
a lock-out in terms of sections 64 to
77 of the LRA
[26.4]
It will not be able to appear
on behalf of its members in the CCMA,
bargaining councils or at court amounting to approximately 260
matters a month.
[26.5]
The applicant’s allegedly
imminent application to become a
member of the Road Freight Bargaining Council
[26.6]
The loss of these rights threatens
the applicant’s existence
because members may desert it and join other employers’
organizations.
[27]
The
respondent is dismissive of these claims of prejudice on the basis
that some of the claims are lacking in detail and that the
applicants’ members would still be able to exercise the rights
in their own capacity, which it currently exercises on their
behalf.
I have considerable sympathy with the respondent in this regard,
especially as there is no evidence that the applicant
is engaged in
any centralized bargaining forum on behalf of any group of its
members. The only evidence in this regard is
the vaguely
expressed ambition that the applicant was intending to try and gain
admission to the Road Freight Bargaining Council.
This contention is`
unsupported by reference to the number of employers it represents
falling under that council, or whether there
was any realistic
prospect of it gaining admission based on thresholds of
representation which should be set out in the council’s
constitution.
[16]
[28]
I accept that there may be some prejudice to the applicant’s
members involved in part heard or imminent proceedings in
which the
applicant is representing them. This prejudice could be cured by an
appropriately worded order. Future matters not yet
underway might be
dealt with by alternative registered organizations, or the employers
involved could obtain appropriate legal
or industrial relations
advice on how to handle the matters in advance. It is quite possible
however that the applicant may lose
members if it no longer can
provide the services they rely on for it to provide, albeit for
additional payment.
[29]
In evaluating the irreparable harm to the respondent, one is dealing
with an altogether different type of prejudice. The harm
that might
be done is to the value to be attached to the registered status of a
union or employer’s organisation if that
title is preserved by
an organisation simply because an appeal has been lodged against its
de-registration. The institution
of the registrar may
suffer a loss of efficacy if it cannot clamp down on bogus
institutions or ones that are not functioning as
genuine unions or
employers’ organisations. Allowing organisations to
continue operating under a ‘registered’
label can create
a false impression in the eyes of employees and employers that the
organisation is above board and prospective
members need not have any
concern that they are joining a
bona fide
organisation that
meets all the requirements of a registered organisation in terms of
the LRA.
[30]
Having said this there are obviously cases where it is arguably more
pressing for the registrar’s ruling to be enforced
pending an
appeal. Some examples of such situations might be: if there are
serious allegations setting out a
prima facie
case of
corruption, gross neglect or mismanagement of the organizations
resources; or where funds are used for purposes which cannot
be
reconciled with the objects of the organisation; where the
controlling interests in the body are running it without regard to
its constitution, or where collective bargaining arrangements are
predicated on the registered status of the organisations involved
and
serious anomalies might if a party was effectively allowed to retain
its membership of the forum despite the registrar’s
decision.
I mention these merely to illustrate possible situations where
compelling reasons might exist for not allowing
a body to retain its
registered status pending an appeal, despite the prejudice to that
body. Every case would have to be carefully
evaluated on its own
facts.
[31]
In this instance, I accept that the applicant has not made out a
compelling case that it will suffer irreparable prejudice,
except
that if it is ultimately successful it may be difficult for it to
resurrect itself and recover members it has lost. At
the same
time, the short term prejudice to the registrar’s legitimate
objective of preventing a non-genuine employer’s
organisation
from continuing operations is not so compelling having regard also to
the fact that even though it ostensibly has
a large membership of
1100 members those members only employ 30 000 employees on the
applicant’s own version, suggesting
a small average workforce.
There is also no indication that it is operating to the prejudice of
its members, even if it bona fides
as a genuine employer’s
organisation are questionable, or that it is being seriously
financially mismanaged.
[32]
In the circumstances, I think that the balance of prejudice is
marginally in the applicant’s favour.
Conclusion
[33]
When considering the balance of prejudice together with the prospects
of success on appeal in particular in relation to the
applicant’s
complaint about the procedure followed by the registrar before taking
the decision to de-register, I believe
that the applicant should be
permitted to remain registered pending the outcome of the appeal
against the registrar’s decision.
[34]
I am mindful however, that the leave to appeal might be pursued less
enthusiastically as the applicant will suffer no prejudice
while it
remains pending. Accordingly, I have made allowance for the
respondent to approach the court to revisit this interlocutory
order
if the appeal is not prosecuted diligently by the applicant.
There is also nothing to prevent the respondent approaching
the
registrar of the court to have the appeal hearing prioritized on the
roll once the matter is ripe for hearing.
Order
Accordingly,
an order is made in the following terms:
[35]
It is declared that the applicant has no automatic right to the
suspension of a decision by the Registrar of Labour Relations
to
de-register it under the LRA.
[36]
In the exercise of the court’s discretion to regulate its own
process, after considering the factors relevant to suspending
the
Registrar’s decision pending the outcome of the applicant’s
appeal against that decision, the cancellation of the
applicant’s
registration is suspended pending the outcome of the appeal to the
Labour Court under section 111 of the LRA,
subject to the proviso in
paragraph (c) of this order.
[37]
In the event that the applicant does not prosecute its appeal
expeditiously, the respondent may approach the court to reconsider
the suspension of his decision.
[38]
No order is made as to costs.
ROBERT
LAGRANGE
JUDGE
OF THE LABOUR COURT
Date
of hearing: 24 August 2010
Date
of judgment: 19 November 2010
Appearances:
For
the applicant: C Watt-Pringle SC, instructed by MacGregor
Erasmus Attorneys
For
the respondent: H v R Woudstra SC, instructed by the State Attorney,
Pretoria
[1]
Unreported judgment of the Labour Court, Case no J1072/2010, dated 3
August 2010)
[2]
At para [17] of the judgment. Section 106(3) of the LRA reads: “
When
a trade union’s or employer’s organisation’s
registration is cancelled, all
the
rights it enjoyed as a result of being registered
will
end.”
.
(emphasis added)
[3]
“
Item8
of Schedule 7 of the LRA provides that :”Cancellation in terms
of sub-item (6) takes effect –
(a)
if the trade union or the employer’s organization has failed,
within the time contemplated in section 111(3), to appeal
to the
Labour Court against the cancellation, when that period expires; or
(b) if the trade union or the employer’s organization
has
lodged an appeal,
when the decision of the registrar has been
confirmed by the Labour Court.
”
[4]
Judgment at paras [19] and [20]
[6]
at para [22] of the
Unica
judgment
[7]
Now reported as
UPUSA
v registrar of Labour Relations
(2010)
31
ILJ
198
(LC
)
[9]
At para [32] of the
CCMA
judgment.
[10]
At 120G-H
[11]
At 120I-121J
[12]
L Baxter,
Administrative
Law
,
(1984) at 381. Section 8(3) of the Road Transportation Act 74 of
1977, amended in 1983, reads: “
The
chairman of the commission or a member thereof nominated by the
chairman, may in his discretion and without giving prior notice
to
or hearing any interested party- …;(b) grant or refuse an
application to suspend the operation of an act, direction
or
decision of a board appealed against;…
”
See also the judgment in
Leburu
en Andere v Voorsitter, Nasionale Vervoerkommissie, en Andere
1983 (4) SA 89
(W)
at
93D-F which affirmed the principle that the suspension of a decision
ordinarily applies to appeals against administrative decisions
relying on the authority in
South
Cape Corporation (Pty) Ltd v Engineering Management Services (Pty)
Ltd
1977 (3) SA 534
(A)
at 544H - 545A.
[13]
Unica
judgment
at para [17] and
CCMA
judgment
at para [32]
[14]
At 545B-G of the judgment
[15]
In terms of Rule 25(1) of the CCMA rules and section 161(c) of the
LRA respectively.
[16]
In terms of section 30(1)(o) of the LRA.