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[2011] ZALCJHB 51
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Services Sector Education and Training Authority and Others v Minister of Higher Education and Training and Others (J604/11) [2011] ZALCJHB 51 (8 June 2011)
AC BASSON J
IN THE LABOUR COURT OF SOUTH
AFRICA
HELD AT BRAAMFONTEIN
CASE NO: J604/11
In the matter between:
SERVICES SECTOR EDUATION
AND TRAINING AUTHORITY
….......................................................
First
Applicant
IVOR BLUMENTHAL
….................................................................
Second
Applicant
UASA THE UNION
…........................................................................
Third
Applicant
FEDERATION OF UNIONS OF
SOUTH AFRICA
…..........................................................................
Fourth
Applicant
CONFEDERATION ASSOCIATIONS
IN THE PRIVATE EMPLOYMENT
SECTOR (“FEDUSA”)
…..................................................................
Fifth
Applicant
ASSOCIATION OF PERSONNEL
SERVICE ORGANISATIONS OF SOUTH
AFRICA (“APSO”)
…..........................................................................
Sixth
Applicant
BEVERLY ANN JACK
…..............................................................
Seventh
Applicant
LEON
GROBLER
…........................................................................
Eighth
Applicant
CLIVE
EDWARD WICKS
…..............................................................
Ninth
Applicant
SHADRACK
MOTLOUNG
…............................................................
Tenth
Applicant
FEROZA
FAKIR
….......................................................................
Eleventh
Applicant
and
MINISTER OF HIGHER EDUCATION
AND TRAINING
….........................................................................
First
Respondent
SIHLE MOON
….......................................................................
Second
Respondent
SHAKEEL ORI
…..........................................................................
Third
Respondent
NOLWANDLE MANTASHE
…....................................................
Fourth
Respondent
MZWAMADODA WISEMAN DINWA
….........................................
Fifth
Respondent
ASHLEIGH CLAIRE VAN GREUNEN
….......................................
Sixth
Respondent
KIM VELTMAN
….....................................................................
Seventh
Respondent
PATRICK MAKHUBELA
….........................................................
Eighth
Respondent
PAM SNYMAN
…..........................................................................
Ninth
Respondent
ADENE PRINGLE
…....................................................................
Tenth
Respondent
JOYCE MHLONGO
….............................................................
Eleventh
Respondent
JOYCE DIMAKATSO SEEMA
…...............................................
Twelfth
Respondent
Date of judgment : 8 June 2011
Date of hearing : 27 May 2011
________________________________________________________
JUDGMENT
APPLICATION FOR LEAVE TO
EXECUTE
________________________________________________________
A.C BASSON J:
In terms of
the Notice of Motion, the applicants pray that the judgment handed
down on 3 May 2011 be executed in the following
terms:
1
“
1.
Allowing
this matter to be dealt with as a matter of urgency, and to be heard
and decided together with the pending application
for leave to
appeal.
2.
Until the outcome of any
application for leave to appeal that may be lodged and pursued by any
of the respondents, and until the
final outcome of any appeal or
appeals that may be pursued by the respondents if they succeed in
obtaining leave to appeal, the
following shall apply as interim
orders:
2.1 The powers, functions and
duties conferred upon the Accounting Authority of the first
applicant, the Services Sector Education
and Training Authority
(“Services SETA”), shall be exercised and performed by
the members of the Services SETA’s
Council as listed in the
schedule appearing as Annexure “Y” to the founding
affidavit in this matter at page 243 of
the paginated record.
2.2 The second respondent, Dr
Sihle Moon, shall not perform or exercise any functions, powers,
duties or responsibilities, or take
any action in relation to the
affairs or staff of the Services SETA as chairperson purportedly
appointed by the Minister of Higher
Education and Training, or as a
member of the Council purportedly appointed by the Minister.
2.3 The third to twelfth
respondents shall not perform any powers, functions, duties or
responsibilities, or take any actions in
relation to the affairs of
the Services SETA, or in any manner interfere with the activities of
the staff of the Services SETA,
arising from the purported
appointment of those respondents by the Minister of Higher Education
and Training as members of the
Council or in any other capacity, save
in their capacity as a member of the Services SETA’s Council as
listed in the schedule
appearing as Annexure “Y” to the
founding affidavit in this matter at page 243 of the paginated
record.
Gazette Notice No. 316, in the
Gazette No. 34202 of 8 April 2011, shall not be implemented and
shall have no force or effect.
2.5 The affairs and operations
of the Services SETA shall be administered and governed in accordance
with the provisions of the
Constitution of the Services SETA as
adopted in 2000 and as published by the Minister of Labour in
Government Gazette No. 24036
of 22 November 2002.
2.6 The Constitution approved
and purportedly implemented by the Minister of Higher Education and
Training on or about 8 April 2011
shall have no force or effect and
shall not be implemented in relation to the governance and
administration of the Services SETA.
2.7 The second applicant, Dr.
Ivor Blumenthal, shall be reinstated in his position as Chief
Executive Officer of the Services SETA,
and the respondents are
interdicted from interfering with the resumption of office by the
second applicant as Chief Executive Officer,
and his fulfilment and
discharge of his functions, powers and duties, and those of all other
employees of the Services SETA.
3 The first respondent and, to
the extent that any of them may oppose this application, the second
and further respondents, shall
pay the costs of this application,
jointly and severally, the one paying the other to be absolved.
4. Granting further or
alternative relief
.”
[2] The deponent to this
application – Mr. Shadrack Motloung – is the tenth
applicant in this application. He was originally
cited as the twelfth
respondent in the main application. He has now however made common
cause with the other parties cited originally
as the applicants (in
the main application). Motloung is the Divisional Manager: General
Sectors in UASA (the Union and the third
applicant in this
application). Mr. Clive Edward Wicks - originally cited as the sixth
respondent in the main application - also
now makes common cause with
this application and so also Ms. Ferosa Facky - the thirteenth
respondent in the main application who
is now cited as the 11
th
applicant in this application.
The purpose of this
application
[3] The purpose of this
interlocutory application is to seek leave for the orders granted in
the main application to operate on
an
interim
basis, pending
the outcome of this application for leave to appeal, any further
applications for leave to appeal that may be lodged
by the
respondents, and (if leave to appeal is to be granted by this Court
or any other higher Court) pending the outcome of any
appeal that
might in due course be heard. At the outset, I must point out that
should this Court be inclined to grant this application,
it is only
inclined to do so pending the outcome of any proceedings before the
Labour Appeal Court
assuming that the respondents successfully
petition the Labour Appeal Court to grant leave to appeal should the
application for
leave to appeal be dismissed.
[4] This application is not
opposed despite the fact that the respondents had ample opportunity
to do so. The respondents were,
however, granted leave to oppose the
application for leave to execute in respect of the orders granted in
prayers 9 and 10 of the
Notice of Motion in the main application.
Those two prayers concern the position of the second applicant –
Dr. Ivor Blumenthal
(“Blumenthal”). The respondents have
since filed an answering affidavit in respect of the prayers that
affect Blumenthal.
As will be pointed out hereinbelow, it was
originally anticipated that the application in respect of Blumenthal
would be argued
on 4 June 2011. The matter was not argued as the
Court was informed that the attorneys on behalf of Blumenthal have
withdrawn as
attorneys of record in light of the fact that Blumenthal
has resigned with effect 31 May 2011. The applicants therefore did
not
persist with seeking the execution of prayers [9] and [10] of the
judgment.
Submissions on behalf of the
applicant
[5] The
applicants submitted that it is necessary to seek leave for the
required relief in order to avoid uncertainty, prejudice
and
inconvenience which would otherwise arise if no interim order was to
be granted pending the outcome of the process of applications
for
leave to appeal and any (further) appeals that might be pursued by
the respondents.
2
[6] It was further submitted
that, in light of the fact that there are no reasonable prospects of
success for the appeal for which
leave is sought by the respondents
(which was at the time of this application also argued) as well as
the potential irreparable
harm or prejudice which may be sustained by
either applicants or respondents if leave to execute is granted or
refused, and the
balance of hardship or convenience, that this
application should be granted.
The application for leave to
appeal
[7] In respect of the
application for leave to appeal it was submitted that there are no
reasonable prospects of success should
the application for leave to
appeal be granted or, in the alternative it was submitted that those
prospects are at best for the
respondents extremely slim. I will not
specifically deal with the merits of the application for leave to
appeal in this judgment.
For purposes of deciding this application I,
however, incorporate my findings in respect of the application for
leave to appeal
herein.
Submissions
[8] It was submitted on behalf
of the applicants that there is a practical need for the orders as
prayed for in the Notice of Motion.
More in particular, it was
submitted that the considerations of potential prejudice or hardship
and the balance of convenience
strongly favour granting the relief
sought. More in particular the applicants advanced the following
submissions in support of
granting of the relief:
The affairs of the Services
SETA have for many years been governed by the Constitution duly
adopted in 2002 and published in
the Government Gazette in 2002 by
the Minister of Labour (referred to in the judgment in the main
application as the “2002
Constitution”).
The affairs of the Services
SETA are governed in terms of the 2002 Constitution by the members
of the (Services SETA) Council
who were elected by the members of
the Services SETA itself and in accordance with what is required by
the relevant provisions
of the Skills Development Act.
The members of the Accounting
Authority (the SETA Council) have been appointed by the Services
SETA as required by the enabling
legislation and not by the
Minister. More in particular, the relevant employees including the
CEO Dr. Ivor Blumenthal (the
second applicant) were duly appointed
in terms of the provisions of the enabling statute and in
accordance with the 2002 Constitution.
(See, however, paragraph
[16] hereunder where I deal with the position of Blumenthal.)
The Services SETA has been
severely disrupted by the actions taken by the respondents and in
particular by the actions of Dr.
Moon and other members of the new
Council (referred to as the “Minister’s Council”
in the main application)
who were purportedly appointed by the
Minister of Higher Education and Training (the first respondent).
Further disruptions and
confusions have risen from the purported imposition of the new
Constitution by the Minister.
Dr. Moon has taken various
actions against Dr. Blumenthal most notably his suspension as CEO.
(See, however, paragraph [16]
hereinbelow in respect of
Blumenthal.)
Various other actions have
been taken by Dr. Moon and other members of the Minister’s
Council which have caused and continued
to cause major disruptions
in the affairs of the (Services) SETA.
The appointments of the
Minister’s Council and the appointment of Dr Moon are invalid
as was found by this Court in the
main application.
It would be inappropriate and
unjustified to allow Dr. Moon and the other members of the
Minister’s Council (whose appointments
have already been
found to be invalid by this Court) to continue to occupy the
offices of the Services SETA and impose instructions
and continue
to take actions which interfere with the proper and smooth
functions of the Services SETA.
There exist considerable
uncertainty, confusion, and panic amongst the members of the staff
of the Services SETA as a result
of the confusion in respect of
which is the validly appointed Council and who is the validly
appointed chairperson of the Council.
As a result of the aforegoing
the proper functioning of the Services SETA, which is to provide an
important service which is
to train unskilled workers to acquire
skills and ultimately to obtain employment are severely affected by
this confusion.
The appointment of Dr. Moon
and that of the other persons appointed by the Minister (whose
appointments have been held to be
invalid by this Court) is neither
constructive nor conducive to the smooth running of the Services
SETA.
The affairs of the Services
SETA were appropriately and effectively administered before the
unlawful actions taken by the Minister
and Dr Moon.
Should the appointment of Dr
Moon and the Minister’s Council be allowed to stand
especially in light of the fact that
the appointment of Dr Moon and
the Minister’s Council have been found to be invalid, it
would have a seriously disruptive
effect on the smooth functioning
of the Services SETA, its operations and the morale of the staff.
[9] In summary it was therefore
submitted that serious and irreparable prejudice would result not
only to the applicants (who are
major stakeholders and interested
parties in the SETA and recognised as such by the SDA) but also to
the staff of the Services
SETA should the order as prayed for in the
Notice of Motion not be granted. Should the order not be granted, the
smooth running
of the Services SETA and its beneficiaries would also
be compromised and hampered. It was therefore submitted that the
affairs
of the Services SETA would be better served in the interim by
allowing the
status quo ante
to be restored, especially in the
face of the finding that Dr. Moon and the Minister’s Council
were invalidly appointed and
especially in light of the fact that the
Services SETA previously, for many years, was properly functioning
under the leadership
of the Council established by the members and in
terms of the 2002 Constitution. If no interim relief is granted in
the form of
leave to execute the said orders, serious prejudice,
inconvenience and hardship would result to the operations of the
Services
SETA, its personnel and the beneficiaries of the services it
provides.
Legal position
[10] Rule 49 (11) of the Uniform
Rules of the High Court provides that “
where an appeal has
been noted or an application for leave to appeal against or to
rescind, correct, review or vary an order of
a court has been made,
the operation and execution of the order in question shall be
suspended, pending the decision of such appeal
or application, unless
the court which gave such order, on application of a party otherwise
directs
.”
[11] Although
the noting of an appeal normally suspends an order pending the
outcome of an appeal, section 166 of the Labour Relations
Act 66 of
1995 (“the LRA”) is silent on the effect of the noting of
an appeal to the Labour Appeal Court. Rule 30 of
the rules of the
Labour Court, which provides for applications for leave to appeal,
likewise make no reference to the effect of
a noting of an appeal.
Section 166(3) of the LRA, however, provides that “
leave
to appeal may be granted subject to any conditions that the court may
determine
”
.
The Labour Court in
NAPOSU
v National Commissioner of the National Police Services and Others,
3
accepted
that, although a similar provision as the one referred to
supra
is not
contained in the Rules of the Labour Court, that does not necessarily
preclude the Labour Court from achieving the same result
as that
contemplated in Rule 49(11) and (12) of the Uniform Rules of the High
Court. The Court also held that the (Labour) Court
may grant leave to
appeal subject to certain conditions in terms of the Labour Court’s
inherent powers conferred to the Court
by section 151 of the LRA.
[12] In light
of the aforegoing, I will now briefly set out the principles to be
taken into account in deciding whether or not to
grant the
application for leave to execute pending an appeal. In this regard
the Court was referred to the decision in
South
Cape Corporation (Pty) Ltd
v
Engineering Management Services (Pty) Ltd.
4
In that case
the Court confirmed that it is accepted at common law that, generally
speaking, the execution of a judgment is automatically
suspended upon
the noting of an appeal with the result that, pending the appeal, the
judgment cannot be carried out and no effect
can be given thereto
except with the leave of the Court which granted the judgment. In
order to obtain such leave the party in
whose favour the judgment was
given must bring a special application to this Court
“
Whatever
the true position may have been in the Dutch Courts, and more
particularly the Court of Holland (as to which see Ruby's
Cash Store
(Pty) Ltd v Estate Marks and Another,
1961
(2) SA 118 (T)
at pp. 120 - 3), it is today the accepted common
law rule of practice in our Courts that generally the execution of a
judgment is
automatically suspended upon the noting of an appeal,
with the result that, pending the appeal, the judgment cannot be
carried
out and no effect can be given thereto, except with the leave
of the Court which granted the judgment. To obtain such leave the
party in whose favour the judgment was given must make special
application. (See generally Olifants Tin "B" Syndicate
v De
Jager,
1912 AD 377
at p. 481; Reid and Another v Godart and Another,
1938 AD 511
at p. 513; Gentiruco A.G v Firestone SA (Pty.) Ltd,
1972
(1) SA 589
(AD)
at p. 667;
Standard
Bank of SA Ltd . v Stama (Pty.) Ltd,
1975
(1) SA 730 (AD)
at
p. 746.). The purpose of this rule as to the suspension of a judgment
on the noting of an appeal is to prevent irreparable damage
from
being done to the intending appellant, either by levy under a writ of
execution or by execution of the judgment in any other
manner
appropriate to the nature of the judgment appealed from ( Reid's
case, supra at p. 513). 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……
…
.
Although most of the cases
just cited dealt with the exercise of the Court's discretion under a
statutory provision or Rule of Court,
the statute or Rule concerned
did not prescribe the nature of the discretion except in broad
general terms (e.g. secs. 36 and 39
of Proc. 14 of 1902 (T) empower
the Court to give directions as
and the
same general approach would be appropriate to the exercise of a
discretion under the aforementioned rule of practice”.
The Labour
Court has adopted a similar approach in labour litigation.
5
[13] In deciding the present
interlocutory application, the papers filed in the main application
were also taken into account. From
those papers it is apparent that
not only will the interested parties (as identified in the judgment
but also in the enabling legislation)
suffer prejudice but also the
staff and the beneficiaries of the SETA as a result of the actions of
the Minister by imposing a
Constitution (the Minister’s
Constitution) which does not comply with the relevant provisions of
the SDA but also by the
appointment of the Minister’s Council
and the appointment of Dr. Moon as the chairperson of the said
Council. In the judgment
in the main application (ad paragraph [34])
the Court pointed out and accepted that confusion and uncertainty are
created by the
fact that there are two competing constitutions, two
competing Councils and by the fact that there are two chairpersons -
one for
each council: One appointed by the members to the Council and
one by the Minister. I am, particularly on this point, persuaded that
the balance of convenience and the need to avoid irreparable harm
militate in favour of granting leave to enforce the judgment.
I am
furthermore persuaded that if such relief is not granted the
untenable position of uncertainty created by the competing councils,
constitutions and chairpersons will continue to apply. It is
certainly not conducive to the proper functioning of the SETA to
allow it to operate in limbo especially if regard is had to the
important function that it performs. The Court also cannot ignore
the
fact that the (Services) SETA has been operating and has been
functioning well over many years under the 2002 Constitution
and
under the auspices of a Council elected from time to time by the
members of the Services SETA comprising of equal representatives
from
organised labour and organised business. I am further persuaded by
the argument that the stakeholders (the applicants in the
main and in
the present application) and the constituencies which they represent
are entitled in terms of the SDA to take an active
and controlling
part in the governance of the (Services) SETA. From the papers in the
main application and from the fact that all
the stakeholders are
applicants in both the main application and this application, it is
clear that Dr. Moon (the second respondent)
does not represent any of
the stakeholders nor does he enjoy the support of the stakeholders
who have come to the Labour Court
to have his appointment be declared
invalid. Lastly, I have dealt with the prospects of success in the
application for leave to
appeal. As already pointed out, I
incorporate the judgment in respect of the prospects of success as
part of this judgment. In
light of the conclusions reached in that
application, especially in respect of the validity of the Minister’s
Council and
the validity of the appointment of Dr. Moon which were
not seriously attacked, I am of the view that it would give rise to
an untenable
situation if the Minister’s Council and Dr. Moon
be allowed to continue to operate in circumstances where the
appointment
of the aforesaid were made invalidly and/or in
contravention with the relevant provisions of the enabling statute.
In this regard
I reiterate and incorporate herein what has already
been held by this Court in the main application.
[14] One last point, it was
submitted that the orders now being sought to execute is
substantially different from the orders the
applicants sought (and
that was granted) in the main application. Mr. Kennedy has persuaded
me that they are not and that they
are in substance the same as those
granted in the main application.
Application for leave to
execute in respect of Dr Ivor Blumenthal (orders [9] and [10])
[15] The application to execute
the relief sought in relation to prayers [9] and [10] of the order
has been withdrawn in light of
the resignation of Blumenthal with
effect from 31 May 2011.
Costs
[16] In light of the fact that
this application is unopposed (except for the orders sought in
respect of Blumenthal which was subsequently
withdrawn), I am of the
view that there should be no order as to costs.
Order
[17] In the event the following
order is made:
(i) The application is granted
in terms of prayer 2 of the Notice of Motion excluding the order
sought in terms of prayer 2.7 of
the Notice of Motion.
(ii) The order granted in terms
of prayer (i) of this order is granted on an interim basis only
pending the outcome of any proceedings
before the Labour Appeal Court
in the event that the respondents successfully petition the Labour
Appeal Court for leave to appeal.
(iii) No order as to costs.
____________________
AC BASSON, J
For the applicant : WR Mokhari
SC
P Malindi SC
Adv Zulu
Instructed by: the State
Attorney
For the respondent: Paul Kenndy
SC
Instructed by: Edward Nathan
Sonnenbergs Attorneys
1
I
will refer to this application as the “main application”
to distinguish it from the present application.
2
See
paragraph [3]
supra
.
3
[1999]
10 BLLR 1068
(LC) at para 14.
4
1977
(3) SA 534
(A) at 545A to 546A.
5
See
in this regard
Julies
v County Fairfoods (Pty) Ltd
[1998]
12 BLLR 1301
(LC) at para 6
and
NAPOSU v National Commissioner of the National Police Services and
Others
[1999]
10 BLLR 1068
(LC) at para 19.
17