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[2013] ZALCJHB 6
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COWUSA obo Individual Applicants v CCMA and Others (JR3124/12) [2013] ZALCJHB 6; (2013) 34 ILJ 1966 (LC) (23 January 2013)
Reportable
Of interest to other judges
REPUBLIC OF
SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA,
JOHANNESBURG
JUDGMENT
Case
no: JR 3124/12
In the matter between:
COWUSA obo individual applicants
Applicants
and
CCMA
First Respondent
COMMISSIONER JOSIAH MAAKE
Second Respondent
RUSTENBURG PLATINUM MINES
Third Respondent
BOWER & ASSOCIATES
Fourth Respondent
Heard
:
17 January 2013
Delivered
:
23 January 2013
Summary:
Urgent application for review of picketing rules made
by CCMA in terms of LRA s 69(5). Union members employed by labour
broker
on protected strike. Allowed to picket at premises of employer
(TES), more than 30 km away from workplace. No record of proceedings
or reasons by commissioner. Remitted to CCMA.
JUDGMENT
STEENKAMP J
Introduction
This case brings into sharp relief, yet again, the anomalies thrown
up by the practice of labour broking. It arises in the context
of an
urgent application for review in terms of s 158(1)(g) of the Labour
Relations Act
1
.
It is a legality review aimed at setting aside the picketing rules
established by the first respondent, the Commission for
Conciliation, Mediation and Arbitration (the CCMA) in terms of s
69(5) of the LRA.
Background facts
The members of the applicant union, COWUSA (the Consolidated
Workers’ Union of South Africa) are on a protected strike.
They all work at the Mogalakwena Mine of the third respondent,
Rustenburg Platinum Mines (“RPM”). However, they are
employed by the fourth respondent, Bower & Associates cc
(“Bower”). Bower is a labour broker or temporary
employment
service (“TES”) as defined in the LRA.
The union’s members started picketing at their workplace, i.e.
on the mine, in support of the protected strike. Violence
occurred
and RPM obtained an urgent interim interdict aimed at preventing
further violence. As part of the rule
nisi
granted by
Rabkin-Naicker J on 26 November 2013, the union, RPM and Bower had
to attend at the CCMA in Polokwane to determine
picketing rules. The
union’s members were interdicted from picketing at RPM’s
premises pending the determination
of picketing rules.
The parties met at the CCMA. They could not agree on picketing
rules. The second respondent (the commissioner) therefore
established
picketing rules in terms of s 69(5) of the LRA.
The commissioner imposed,
inter alia,
the following picketing
rules:
“
The
picketers shall have the right to sing, chant, sloganeer, and
toyi-toyi outside the Employer’s premises to wit, no 63
Sussex
Street, Mokopane.
The picketers are prohibited
from picketing on the Mogalakwena Platinum Mine’s premises.”
The “employer’s premises” referred to are those of
Bower’s head office in Mokopane, more than 30 km away
from the
mine where the union members work. The union wishes to have the
picketing rules reviewed and set aside on an urgent
basis. It asks
the court to substitute the picketing rules with rules that allow
its members to picket at or outside the premises
of the mine where
its members work. RPM opposes the application; Bower abides the
decision of the court.
Evaluation / Analysis
RPM raises a number of defences. Firstly, the issue of urgency needs
to be decided.
Urgency
The picketing rules were determined on 26 November 2012. This
application was heard on 17 January 2013. At first blush, it does
not appear to be urgent. However, the further litigation after the
rule
nisi
was granted by Rabkin-Naicker J on 26 November
2013
2
needs to be considered.
The union initially launched an urgent application to have the
picketing rules set aside on 30 November 2012. It was due to be
heard on 5 December 2012; however, it appears that the union failed
to enrol it. The parties nevertheless agreed, on that day,
on a
timeframe for the filing of further pleadings. The union delivered a
fresh application on 7 December 2012; answering and
replying
affidavits were delivered by 10 December; and the matter was set
down for hearing on 12 December 2012. Lagrange J dismissed
the
application because the union had not cited the commissioner and had
launched the application in terms of s 145 instead of
s 158(1)(g) of
the LRA. He ruled that the union could launch a fresh application to
cure these defects within two days. The union
did so on 14 December
2012. It was enrolled for hearing on 20 December 2012. On 21
December 2012, Lallie J struck the matter
off the roll because the
union had not filed the record of proceedings in terms of rule 7A.
The union requested the record from the CCMA in terms of rule 7A.
The CCMA filed the record – such as it was – on
10
January 2013 in terms of rule 7A(3). It comprised only the picketing
rules (already attached to the union’s earlier
application)
and the commissioner’s handwritten version of the same
picketing rules. It appeared that the proceedings had
not been
recorded, nor did the commissioner provide any other handwritten
note of the proceedings. The commissioner also declined
to provide
reasons for his determination. The CCMA delivered a notice under the
heading, “reasons”, stating:
“
We
have read the notice of motion and founding affidavit in the
abovementioned review application.
We have nothing further to add
to the picketing rules in terms of section 60 [
sic
] of the LRA
dated 26 November 2012.
We will abide by the decision of
the Honourable Court.”
The union delivered the record in terms of rule 7A(6) together with
a notice in terms of rule 7A(8)(b), stating that it stands
by its
notice of motion, on 11 January 2013. The matter was enrolled for
hearing on 17 January 2013.
Given the history of the matter, it appears that the union did
attempt to act urgently. It launched the first application
immediately
after the picketing rules had been issued. It was
misguided in doing so in terms of the wrong section of the LRA and
without
joining the commissioner; but having been alerted to these
defects by Lagrange J, it launched fresh proceedings within two
days,
as directed. It was, again, misguided in its attempts by
failing to file the record in terms of rule 7A; but, after the
matter
had been struck off the roll, the union and its attorneys did
once again act expeditiously to cure this remaining defect. As it
happens, no record exists; more of this aspect later. I accept,
though, that the applicants did attempt to launch these proceedings
expeditiously. The strike is ongoing. The matter is sufficiently
urgent to be heard on that basis.
Review in terms of s 158(1)(g)
The applicants seek to have the decision of the commissioner (and,
therefore, of the CCMA) reviewed and set aside in terms of
s
158(1)(g) of the LRA. It is, in other words, a legality review.
The principles pertaining to this type of review were set out in
POPCRU v Minister of Correctional Services.
3
Hoexter
4
explains that the fundamental idea underlying the principle of
legality is that the legislature and executive in every sphere
of
government are constrained by the principle that it may exercise no
power and perform a function beyond that conferred by
law. It may
only act within the powers lawfully conferred on it and the exercise
of public power is only legitimate when it is
lawful. It is the
obverse facet of the
ultra vires
doctrine and an aspect of
the rule of law.
The legality principle is exemplified in the post-constitutional
context in the
Pharmaceutical Manufacturers
5
judgment of the Constitutional Court. As Chaskalson P explained:
“
[50]
What would have been
ultra
vires
under
the common law by reason of a functionary exceeding a statutory power
is invalid under the Constitution, according to the
doctrine of
legality."
The court further pointed out that the exercise of public power must
be lawful; and it must not be arbitrary or irrational.
6
In this application, the union contends that the determination of
the commissioner was irrational and unreasonable.
In
Shoprite Checkers (Pty) Ltd v CCMA
7
this court accepted that the determination of picketing rules in
terms of s 69(5) was reviewable under section 158(1)(g).
Absence of record
The task of the court has been rendered even more difficult than it
normally is in urgent circumstances because of the absence
of a
record of proceedings. It is common cause that no such record
exists; the proceedings were not electronically recorded and
the
only handwritten notes provided by the CCMA are those comprising the
handwritten precursor to the typed up picketing rules.
In these circumstances, it is impossible for the court to consider
whether the commissioner complied with the provisions of section
69(2) by considering the proper place for picketing, i.e. a place
where the public has access; whether the union had asked for
permission to picket inside the employer’s premises; and
whether that permission had been withheld. It is also impossible
to
ascertain whether the commissioner considered the anomalous
situation where the employer (the TES) had a head office 30 km
away
and an office on the premises of the mine, where the striking
workers usually reported for work. The mine, in turn, leases
its
premises from the local municipality. The commissioner would have
had to consider all these factors in deciding where the
picket would
be most effective, giving expression to the constitutional rights to
strike
8
and to picket
9
.
It is also impossible to ascertain whether the commissioner
considered the peremptory provisions of section 69(5) of the LRA,
i.e. the particular circumstances of the workplace as alluded to
above; and the Code of Good Practice on Picketing
10
.
The fact that the “reasons” provided by the CCMA –
in which it declines to furnish reasons – wrongly
refers to
section 60
11
of the LRA does not inspire confidence.
What is the court to do in these circumstances? Mr
Malan
, who
appeared for RPM, submitted that this court is bound by the decision
in
JDG Trading (Pty) Ltd t/a Russells v Whitcher NO &
Others
12
.
In that case, the court
a quo
amended an arbitration
award without the benefit of the arbitration record. The Labour
Appeal Court expressed the following view
13
:
“
In
terms of Rule 7A(5), (6) and (7) the appellant was obliged to have
transcribed the hand-written record and also the contents
of the
cassette tapes. Arguably, if the latter proved to be complete, it may
have proved unnecessary to transcribe the hand-written
notes. The
appellant failed to have either the hand-written record or the tapes
transcribed.
In the absence of the
transcribed record of the proceedings before the first respondent,
the court a quo was in no position to adjudicate
properly on the
application before it and ought accordingly to have dismissed it.”
What is apparent from
JDG Trading
, though, is that in that
case, a record (in the form of an electronic recording and
handwritten notes) did exist. The applicant
failed to transcribe it
and thus did not comply with rule 7A(6). In the present case, there
was no record to transcribe. It would
also have been nigh impossible
for the parties to reconstruct the record on an urgent basis without
the benefit of handwritten
notes, as the LAC suggested in
Lifecare
Special Health Services (Pty) Ltd v Ekuhlengeni Care Centre v CCMA &
others
14
.
In
Lifecare
, the case was postponed
sine die
for an
investigation and a reconstruction of the record of the arbitration
procedure.
In this case, given the urgency of the matter in the context of an
ongoing strike and the complete absence of a record, such
a course
of action would not be feasible. Instead, this case is akin to that
of
Department of Justice v Hartzenberg
15
where most of the record of the evidence before the Industrial Court
was indisputably lost and where a reconstruction of the
record was
not considered to be feasible. In that case, the matter was remitted
to the CCMA for a re-hearing
de novo.
It seems to me that justice would be served if the court were to
follow a similar route in this instance. The matter should,
in my
view, be remitted to the CCMA for a re-hearing where the parties’
evidence and submissions should be properly recorded.
This is all
the more so where the commissioner has declined to provide reasons –
an aspect to which I now turn.
Absence of reasons
After having heard oral argument, and whilst considering the
application, the court was faced with a conundrum that it did not
debate with the parties in oral argument. That is that the
commissioner failed to give reasons for his determination, even when
called upon to do so in terms of rule 7A(2)(b). (Although the
initial notice of motion did call upon the CCMA and the commissioner
to provide the record and reasons, the union also asked the court to
dispense with the provisions of rule 7A(2)(b). It is only
after
Lallie J had struck the matter from the roll because the record had
not been filed, that the rule was complied with).
I therefore asked the parties to deliver further written submissions
on this question:
Should the determination of
picketing rules be remitted to the CCMA, given that:
the
determination of picketing rules by the first and second respondents
is an administrative act; and
the
second respondent (the commissioner) did not provide reasons for his
determination?
In
Shoprite Checkers
16
Pillay J stated that, as an adjudicative administrative act, a
commissioner should give reasons for the picketing rules. In the
case before me, he did not do so.
This in itself is a reviewable irregularity. The rules made by the
commissioner are far from self-explanatory – the one
exception
seemingly foreseen by Pillay J. I agree with her that this court has
the power to review picketing rules in terms of
s 158(1)(g). I also
agree that the commissioner should have provided reasons in
circumstances where it is not self-explanatory,
for example, why he
did not allow the striking workers to picket outside their
workplace.
Conclusion
For the reasons set out above, the picketing rules ought to be
reviewed and set aside.
The appropriate remedy: substitute or remit?
Given the absence of a record and reasons, though, the appropriate
remedy is to remit the matter to the CCMA in order for the
commissioner (or another commissioner appointed by the CCMA) to
consider the determination of picketing rules afresh. The court
will
not take up the applicants’ invitation to determine those
picketing rules. I cannot do so in the absence of a record.
It is
for the parties to place (properly recorded) evidence and argument
before the CCMA, and for the commissioner to determine
picketing
rules afresh, taking into account the provisions of section 69(5),
and especially the peculiar circumstances of the
striking workers’
workplace and the code of good practice.
When making a determination in terms of section 69(5), I agree with
Pillay J in
Shoprite Checkers
17
that the commissioner must provide brief reasons for the
determination, unless the reasons are self-explanatory from the
picketing
rules. Given the unique circumstances of this case, I
doubt that it would be self-explanatory. The commissioner should, as
suggested
by Pillay J, provide reasons for any new picketing rules
established in an accompanying memorandum.
The strike is still ongoing. The matter is urgent. I shall therefore
direct the parties to meet and the CCMA to determine new
picketing
rules by no later than Friday 25 January 2013. Until new picketing
rules are agreed to or determined by the CCMA, the
current picketing
rules will remain in force.
Costs
There is an ongoing dispute and an ongoing relationship between the
parties. Although they have been ultimately successful, the
applicants and their attorneys have caused delays in the hearing of
this application. In law and fairness, they are not entitled
to
their costs.
Order
For these reasons, I make the following order:
The picketing rules established by the first and second respondents
on 26 November 2012 are reviewed and set aside.
The effect of this order is suspended until new picketing rules are
either agreed to or established by the CCMA.
The applicant (COWUSA) and the third respondent (RPM) are ordered
to attend at the premises of the first respondent (the CCMA)
on or
before Friday 25 January 2013 in order to establish picketing
rules.
The CCMA (the first respondent) is ordered to convene a meeting
before the second respondent (commissioner Maake) or another
commissioner by no later than Friday 25 January 2013 in order to
establish picketing rules on terms of section 69(4) and, failing
that, in terms of section 69(5) of the Labour Relations Act.
There is no order as to costs.
_______________________
Anton Steenkamp
Judge of the Labour Court of South Africa
APPEARANCES
APPLICANTS:
Mpho Mamatela of
Mamatela & Majang, Johannesburg.
THIRD RESPONDENT:
Fritz Malan of
Edward Nathan Sonnenbergs, Johannesburg.
1
Act
66 of 1995 (“the LRA”).
2
Returnable
on 25 January 2013.
3
[2011]
10 BLLR 996
(LC); (2011) 32 ILJ 2541 (LC).
4
Cora
Hoexter,
Administrative Law in South Africa
(2007) at 116-7.
5
Pharmaceutical
Manufacturers Association of SA: In re Ex parte President of the
Republic of South Africa and others
[2000] ZACC 1
;
2000 (2) SA 674
(CC).
6
Paras
[51], [85] and [90]. See also
Minister of Correctional Services &
others v Kwakwa and another
2002 (4) SA 455
(SCA);
[2002] 3 All
SA 242
(A) paras [35] – [36].
7
[2007]
5 BLLR 473
(LC).
8
Constitution
of the Republic of South Africa s 23(2)(c).
9
Constitution
s 17.
10
GN
765 of 1998,
Government Gazette
18887 of 15 May 1998.
11
This
section deals with the winding-up of a bargaining council by reason
of insolvency.
12
[2005] ZALC 1
;
[2001]
3 BLLR 300
(LAC).
13
Paras
[12] – [13].
14
[2003]
5 BLLR 416
(LAC).
15
[2001]
9 BLLR 986
(LAC):
2002 (1) SA 103
(LAC), alluded to in
Lifecare
(supra)
para [15].
16
Supra
para [14].
17
Supra
para [14].