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[2011] ZALCJHB 60
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Chemical Energy Papers Printing Wood and Allied Workers Union and Others v Express Payroll CC (JS 113/2010) [2011] ZALCJHB 60; [2011] 11 BLLR 1061 (LC); (2011) 32 ILJ 2959 (LC) (20 July 2011)
CHEMICAL, ENERGY, PAPER,
PRINTING, WOOD AND ALLIED WORKERS UNION & BADYE, ISAAC & 293
OTHERS VS EXPRESS PAYROLL CC CASE
NO.: JS 113/2010 - Interlocutory
Application – Seeking order to prevent Cheadle Thompson Hayson
to act on behalf of Applicants
until proof of authority has been
furnished
_______________________________________________________________________________________________________
1
IN THE LABOUR COURT OF SOUTH AFRICA
(HELD AT JOHANNESBURG)
CASE NO: JS 113/2010
Reportable
In the matter between;
CHEMICAL, ENERGY, PAPER, PRINTING,
WOOD AND ALLIED WORKERS UNION
….......................
First
Applicant
BADYE, ISAAC & 293 OTHERS
….....................
2
ND
and Further Applicants
and
EXPRESS PAYROLL CC
…..........................................................
Respondent
JUDGMENT
CAWE AJ:
Introduction
[1] This is an interlocutory by the Respondent, a labour
broker, seeking an order preventing Cheadle Thompson of Hayson Inc, a
firm
of attorneys, from acting on behalf of the second and further
Applicants until they have furnished proof of their own, or First
Applicant’s authority to act on behalf of second and further
Applicants in the main matter, i.e. the alleged automatically
unfair
dismissal of the second and further Applicants.
Factual Background
[2] The Respondent is a labour broker providing the
services of workers to Glass Decorations CC, the client.
[3]` The main dispute between the parties and which gave
rise, subsequently, to the instant application before the Court, is
the
dismissal of the second and further Applicants by the Respondent
on allegations that they committed acts of misconduct during what
Respondent termed “an unprotected strike.
[4] There is no formal recognition agreement between the
union and the company but the company has granted some organisational
rights
to the union, including the recognition of its shop stewards.
[5] The parties were engaged in negotiations regarding
wages and conditions of service. The last meeting that the parties
held was
on the 22 June 2009. The said negotiations deadlocked. The
Applicant Union then referred a wage dispute to the CCMA for
conciliation.
[6] The CCMA set the wage dispute down for conciliation
on 14 August. Both parties attended the conciliation meeting. The
company
was represented by Mr Van Rooyen, Mr Van Graan and its legal
representative, Mr Gary Ryan Rose. The union and its members were
represented by Makhaza and the union’s shop stewards.
[7] The dispute was not resolved. The Commissioner
issued a certificate of non resolution authorizing the second and
further Applicants
to strike.
[8] In its statement of claim the Union states that on
the 15 August 2009 it addressed a letter to the company that its
members
would embark on a protected strike with effect from 6 am on
18 August. The Respondent sent the Union picketing rules. According
to the Union, these were drafted by the Company without consultation
with the Union
[9] It is the Applicant’s version that on 20
August, and when the workers were on strike, the company addressed a
“notice
to all members to attend disciplinary enquiry” on
25 August.
[10] It is the Applicant’s further version that
the disciplinary hearing on 25 August proceeded in the absence of the
affected
workers, or CEPPWAWU, which had requested a postponement of
the hearing. One of the union’s shop stewards attended the
hearing
to ensure that it was postponed. The company gave him a
bundle of documents and successfully attempted to persuade him to
represent
the affected workers. The hearing was conducted for 205
workers who had been charged with various acts of misconduct
(including
participation in unprotected strike action). All of those
workers were found guilty of participating in an unprotected strike
by
the external chairperson. Many of them were dismissed for alleged
misconduct.
[11] The Applicant Union then referred an automatically
unfair dismissal dispute, on behalf of the dismissed workers, to the
Labour
Court. The reasons for contending that the dismissal was
automatically unfair have been set out in detail in the Applicant’s
statement of claim. As I do not have to decide on that issue I will
not deal with them in the present judgment.
[12] When the first Applicant gave notice of the
application to the Respondent, Respondent demanded proof that the
second and further
Applicants were indeed members of the union and /
or that its attorney, Cheadle, Thompson and Hayson Inc had authority
to act on
behalf of the Applicants.
[13] Respondent’s attorneys, Erasmus- Scheepers
Attorneys, invited the Union’s attorneys to furnish proof that
they
were acting on behalf of the second and further Applicants, the
Applicant’s attorneys addressed a letter to stating amongst
others;
“
We deny that, at this time,
we must furnish your client with proof of our authority or powers of
attorney from each applicant. The
Rules do not permit you to
challenge our authority in this manner or at this time. Nevertheless,
we will furnish you with proof
of our authority before the dispute is
enrolled for trial. If you intend challenging the union membership of
the individual applicants
in your client’s statement of
response, we will lead evidence concerning the issue at trial. (or we
will file powers of attorney
from each applicant beforehand). It is
clear that in our client’s
statement of claim it is alleged that the individual
applicants are members of the first applicant, a registered trade
union. Section
200(1)(b) of the Labour Relations Act 66 of 1965
permits a registered trade union to represent its members in
proceedings of this
nature.
We therefore do not intend to deliver powers of
attorney or proof of union membership (from each of the individual
applicants) at
this point. There is no basis for your client to take
an exception on this basis. This would clearly stratagem to delay the
proceedings.
We will oppose such step and seek costs on a punitive
scale, possibly against you directly.”
[14] The Respondent’s attorneys instituted a
notice to remove cause of complaint in the Court. It duly informed
the Union’s
attorneys of same in a letter dated 22 February
2010. The relevant paragraphs of the letter are 2.2, 2.3 and 3 which
read:
Our notice, in regards to your and the union’s authority, was
informed by Rule 17 of the Uniform Rules of the High Court.
Whilst
you are quite correct in asserting that the Rules of the Labour
Court have no express provision for this procedure,
the “catch
all” provision in Rule 11(3) of the Rules of the Labour Court
enables it to adopt the Rules of
the High Court, in cases such as this. The purpose of adopting this
procedure, at this stage, is to preclude unnecessary costs
should
there indeed be no mandate to your firm or the union.
We might add that your allegation, that this is a strategy to delay
the proceedings, is rejected. None of the individuals identified
as
Applicants were members of the First Applicant when they went on
strike and none of them had stop-orders in favour of such union with
our client. Our notice is thus not a delaying tactic but a
genuine
attempt to address the probability that none of the individual
Applicants are members of the First Applicant.
3. We accordingly suggest that you supply us with a power of
attorney, from First Applicant in favour of your firm, and also
copies
of stop-orders or other proof of membership of First Applicant
in respect of the individual Applicants. Should you fail to do so
we
shall apply for an order, to prevent you from taking any further
steps in this litigation.
[15] The Applicants attorneys remained adamant that they
were under no obligation to furnish the proof required by the
Respondent.
The Respondent then moved the instant interlocutory
application.
[16] The Respondent’s founding affidavit, deposed
to by Lilo Chantal Van Rooyen, insists the Court to utilise Rule 7 of
the
High Court.
[17] In its answering affidavit, deposed to by one
Melatelo Makhura, the Applicant’s attorneys submit that Rule 7
of the High
Court being “imported” to the Labour Court is
not part of practice and has no application in the present matter.
Paragraphs
4 and 5 of Mr Makhura’s affidavit read,
“
I submit that there is no
merit to this application whatsoever. Rule 7 of the Uniform Rules
applicable to the High Court is of no
application in the present
matter. Rather, the point raised by the respondent is regulated by
section 200 of the Labour Relations
Act 66 of 1965 (the LRA). This
section has been authoritatively interpreted by the Labour Appeal
Court in the case of
National
Union of Mineworkers v Hernic Exploration (Pty)
Ltd (2003) 24 ILJ 787 (LAC) at 8020 – 801,
paras [39
and 41].
The practice in this Court regarding a registered
trade union proving its authority to litigate and seek relief on
behalf of its
members is clear, established and well known. There is
thus no reason to import Rule 7 of the Uniform Rules into this or any
other
matter. The respondent’s alleged point makes even less
sense in the context of the present case, as the union’s
dismissed
members are, cited as individual applicants in their own
right.”
[18] Of the 205 Applicants only 83 have signed powers of
attorney to be represented by the first Applicant’s attorneys.
The
bulk of Applicants have not signed any powers of attorney nor was
there
proof that they were in fact members of CEPPWAWU, the
Applicant Union.
[19] It was argued by the Respondent’s Counsel
that at the time the Applicants were employees of the Respondent they
were
not members of the Applicant Union. This was not disproved by
Applicant’s attorneys or their counsel. There was not even an
affidavit by the union secretary, to prove such membership that was
tabled before the Court.
[20] In reply, it was argued on behalf of the Applicants
that the interlocutory application is a ploy by the Respondent, to
delay
the matter. For over a year the Respondent had not filed a
statement of case.
[21] The Applicant’s counsel argued, further that
Rule 11(3) of the Labour Court does not enjoin the Court to adapt
Rule 7
where there is no need to do so. The need to prove that all
the Applicants are members of the Union would arise only at the
discovery
stage of the main application. Rule 7 should only be
adopted where it would lead to expeditious resolution of the matter.
Counsel
submitted that
in casu
it had merely slowed the matter
down.
Analysis
[22] The matter has been dragging on for close to a year
without resolution. From the outset the Respondent requested proof
that
the first Applicant’s attorneys had a mandate to act on
behalf of all the
dismissed Applicants. The Applicant’s attorneys
attitude was that there was no need to prove that they had authority
to act
on behalf
of all the Applicants and that the issue should be
raised only at the discovery stage of the main application.
[23] If the Applicant is interested in the expeditious
resolution of the dispute, as argued by Counsel, the question to ask
is why
did they not merely produce the power of attorney that proves
their mandate to act on behalf of the Applicants, other than the 83
that have been verified as having given Applicant’s attorneys
the mandate to act on their behalf.
[24] I agree with Applicant’s submission that Rule
11(3) has to be used where it will lead to the expeditious resolution
of
a matter. I,
however, differ from Counsel in that I believe that it
has now slowed down the process.
[25] The question to be asked is whether Rule 11(3)
which reads:
(3).If a situation for which there rules do not provide arises in
proceedings or contemplated proceedings, the court may adopt
any
procedure that deems appropriate in the circumstance.
[26] Can Rule 11(3) be used to adopt the procedure for
Rule 7(1) of the High Court Rules in the instant application? The
answer
has to be in the positive. Rule 11 was meant for exactly the
situation that the present parties find themselves in. There is a
demand for proof of
Applicant’s and its attorneys authority to act on
behalf of all the Applicants. It is common cause that the Labour
Court Rules
do not make provision for such proof. To cure such a
“
lacuna
” in the Labour Court Rules, nothing
precludes the adoption of the Rules of the High Court.
[27]
It
was argued by the Counsel for the Applicants that Rule 7(1) does not
apply between litigants but applies to a litigant and his
attorney.
For this counsel relied on the comment by the authors on page 268 of
Herbstein and Van
Winsen
1
.
I do not read the commentary to mean that the Rule applies to an
attorney and his client. If the client did not have an attorney
why
would the attorney issue formal court process on behalf of a party
unknown to him.
The Counsel for Applicant has clearly misinterpreted
Herbstein and Van Winsens
commentary
in this regard.
[28]
On the same page (268) of the
learned author’s commentary, the issue is dealt with further.
The relevant paragraph reads:
It is submitted that the effect of Rule 7(1) as substituted is to
dispense with powers of attorney in all cases (subject to the
provisions of rule 7(2) and 7(3)) until the authority of anyone
acting of behalf of a party disputed. In that event the court has
to
be satisfied that the person concerned “is authorised so to
act”.This can be effected either by the production of
a power
of attorney or by some other mode of proof.
[29] In view of the aforementioned commentary and the
cases cited, it does allow Respondent to demand proof of authority to
act
on
behalf of the members that are not part of the 83 who
have signed the power of attorney. The Respondent, in his papers, has
no quarrel
with the Applicant’s attorneys acting on behalf
of the members that have been identified as having given such
authority
to the attorneys. The demand for proof pertains to the
remainder of the Applicants cited in the main application.
[30] The Resolution and power of attorney referred to in
paragraph 8 of the answering affidavit of Mr Makhura, pertains to the
Union
members that have been identified.
[31] If there was no need for the remainder of the
Applicants to produce individual powers of attorney then, I believe,
paragraph
9 would not have been incorporated into the affidavit.
Clearly when the Applicants acknowledge that there is a need to
furnish
the powers of attorney by the outstanding litigants.
[32] The paragraph reads:
In addition, on 30 March 2010, CTH forwarded 83 powers of attorney
from the union’s members who are also the individual applicants
cited in this matter to the respondent’s attorneys. In our
covering letter of this date, we advised the Respondent’s
attorneys that further powers of attorney covering the remainder of
the individual applicants will be forwarded to them in due
course, as
and when they were to hand.
[33] There is no explanation as to why these powers of
attorney have not been forwarded one year after the affidavit was
deposed
to. The only reasonable conclusion to drama is that it did
not exist.
[34] The Applicant’s counsel submitted that
section 200(1) of the Labour Relations Act 66 of 1965 would have
adequately dealt
with the issue without Rule 7(1) of the High Court
being “imported” as it were. In the
National Union of
Mine Workers v Hernic Exploration (Pty) Ltd
(
supra
) the
Labour Appeal Court (at paragraphs 39 – 41) dealt with the
instances where section 200(1) of the LRA would be relevant.
[35] Zondo JP (as he was then) in paragraph 40 page 801
states that:
“
I conclude in the end that
on the basis of section 200(1) of the Act a trade union has a right
to refer a dismissal dispute relating
to its members to the CCMA for
conciliation and to the Labour Court for adjudication as the
referring party or as applicant without
citing its dismissed members
as co-applicants.”
[36] This shows that the Union or its attorneys cannot
be denied the opportunity to represent the Union’s members.
This is
what distinguishes the
Hernic
case from the instant
one. The Respondent “
in casu
” wants proof of
membership. As has been stated earlier in this judgement, the
Applicants’ attorneys may represent the
members who have signed
the powers of attorney but should not extend its mandate to the
dismissed employees who have not given
such mandate. In the
Hernic
case (
supra
) the objection was that the appellant had no
right refer the dispute to the CCMA but in the present application,
the Applicant
is asked to prove that all the employees are its
members and is has a right to represent them.
[37] The instant matter has dragged on purely because
the first Applicant and its attorneys did not want to prove that it
had a
mandate to act on behalf of all the cited Applicants. There is
no justification for the parties to wait until the “discovery
stage” to raise the issue of authority to act.
[38] The only solution to expedite proceedings in the
main dispute is to import Rule 7 of the High Court Rules, in
accordance with
Rule 11 of the Labour Court Rules, and demand that
the first Applicant and its attorneys provide proof of authority to
act on behalf
of the Applicants that have not signed any powers of
attorney.
[39] With regards to costs I have reason to believe that
the Applicants delayed the prosecution of the dispute by not
providing
the
mandate to act on behalf of all the Applicants. This
means, therefore that costs should follow the suit.
[40] In the result I make the following order:
The Interlocutory application succeeds
The First Applicant is to pay Respondent’s costs
______________________
CAWE AJ
Acting Judge of the Labour Court of South Africa
Appearances:
For the Applicant: Enijen M
Instructed by: R.D. Daniels CT & H
For the Respondent: Beaton R.G SC
Instructed by: Erasmus Scheepers Attorneys
Date of hearing: 05 May 2011
Date of Judgment: 20 July 2011
1
The
Civil Practice of the High Court of South Africa, 5
th
Edition. Juta