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[2013] ZALCJHB 51
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City of Johannesburg and Others v Independent Municipal and Allied Trade Union and Others (J 1232/06) [2013] ZALCJHB 51 (12 April 2013)
7
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not
reportable
CASE NO:
J
1232/06
In the matter between:
CITY
OF JOHANNESBURG
METROPOLITAN
MUNICIPALITY
.....................................................................
First
Applicant
EKURHULENI
METROPOLITAN
MUNICIPALITY
.............................................................................................
Second
Applicant
THE
SOUTH AFRICAN LOCAL GOVERNMENT
ASSOCIATION
..................................................................................................
Third
Applicant
BUFFALO
CITY MUNICIPALITY
....................................................................
Fourth
Applicant
CITY
OF CAPE TOWN
METROPOLITAN
MUICIPALITY
.......................................................................
Fifth
Applicant
and
INDEPENDENT
MUNICIPAL AND
ALLIED
TRADE UNION
.................................................................................
First
Respondent
THE
SOUTH AFRICAN MUNICIPAL
WORKERS
UNION
...................................................................................
Second
Respondent
THE
SOUTH AFRICAN LOCAL
GOVERNMENT
BARGAINING COUNCIL
...................................................
Third
Respondent
Heard: 5 February 2013
Judgment delivered: 12
April 2013
JUDGMENT
VAN NIEKERK J
Introduction
[1] This is an
application in which the applicants seek
inter alia
an order
declaring that an agreement entered into between the first respondent
(IMATU) and the fourth applicant (SALGA) is not
binding on any of the
applicants and that an arbitration award issued under the auspices of
the third respondent (the bargaining
council) on 22 February 2006 in
which the agreement was made an arbitration award, is similarly not
binding. SALGA is an employers’
organisation, representing some
284 municipalities, including the first to third applicants. IMATU is
a registered trade union
having members employed in the municipal
sector.
Material facts
[2] The material facts
are not in dispute, and are recorded in the papers filed in these
proceedings. For present purposes, it is
sufficient to note that in
July 2005, IMATU and the second respondent (SAMWU) referred a dispute
between them and SALGA to the
bargaining council for conciliation.
The dispute concerned the manner in which fixed term contracts were
regulated by SALGA’s
members. The conciliation failed and the
dispute was referred to arbitration. IMATU filed its statement of
case on 22 September
2005. The arbitration was initially scheduled
for 1 November 2005, but postponed at SALGA’s request to 25
November 2005.
On 16 November 2005, SALGA filed its statement of
defence. A pre-arbitration meeting was held in Pretoria on 18
November 2005.
On 21 November, SAMWU stated that it did not intend to
participate in the arbitration and would abide the outcome. A
pre-arbitration
minute was signed on 25 November 2005 and the
arbitration postponed to 8 December 2005. On 8 December 2005, various
in limine
issues were argued before the arbitrator. On 28
December, the arbitrator issued a ruling in respect of these issues,
and the arbitration
was rescheduled for 18 January 2006.
[3] On 11 January 2006,
SALGA officials Dlamini, Van Zyl and Mothuloe met with what are
described as SALGA’s ‘main members’.
The members
were informed of the arbitrator’s ruling, and a possible
settlement of the dispute was discussed. On 13 January
2006, a
further pre-arbitration conference was held at which SALGA indicated
its desire to settle the dispute. Correspondence passed
between the
parties on 16 and 17 January, but on 18 January, the arbitration
proceeded as scheduled in the absence of agreement
on two ‘practical
issues’ that separated the parties. Evidence was led at the
hearing, which was postponed to 8 February
2006 to enable SALGA to
obtain instructions and for the parties to further explore the
prospect of settlement. A meeting was held
on 26 January when the
prospect of settlement was discussed. This meeting culminated in a
draft agreement, circulated on 6 February.
After a further meeting on
8 February, the arbitration was reconvened on 10 February 2006. The
arbitrator was advised that the
parties were close to settlement, but
that SALGA required more time to finalise the settlement. On this
basis, the proceedings
were again postponed, to 22 February. Prior to
that date, settlement was discussed extensively between the parties.
[4] On 21 February 2006,
Dlamini and IMATU’s deputy general secretary Koen signed the
settlement agreement. It was a term
of the agreement that it would be
made an arbitration award. On 22 February 2006, on the resumption of
the arbitration hearing
and at the request of the parties, the
settlement agreement was made an arbitration award. On 6 March 2006,
IMATU applied to the
CCMA to certify the award. The award was
certified on 8 June 2006.
[5] On 6 July 2006, the
newly appointed executive director : human resources and labour
relations of SALGA, Adv. Yawa, addressed
a letter
inter alia
to the first to third applicants enquiring from them whether they
agreed with ‘an approach that seeks to nullify the settlement
agreement’. On 1 August 2006, the present application was
launched, which, as I have indicated, seeks to have the settlement
agreement and the arbitration award set aside.
The application
[6] The applicants
contend that SALGA had no authority to represent the first to third
applicants in the arbitration hearing and
in the conclusion of the
settlement agreement. Further, they contend that the settlement
agreement is
ultra vires
the powers of SALGA, and that Dlamini
(who at the time was the acting director: human resources and labour
relations) was not authorised
by SALGA to conclude the settlement
agreement. Finally, the applicants contend that the settlement
agreement contains inchoate
terms and that it was in any event
subject to an unfulfilled suspensive condition and that it should be
set aside on that basis.
[7] IMATU raised a number
of points
in limine
on the papers and at the hearing of the
application, persisted with two of them. The first is that the first
to third applicants
do not have
locus standi
to contest the
validity of the settlement agreement concluded by SALGA; the second
is that there was an unreasonable delay in the
launching of the
application.
[8] I deal first with the
question of delay. As I have noted, the settlement agreement was
concluded on 21 February 2006, and the
present application launched
on 1 August 2006, some 22 weeks later.
[9] It is
well-established that where no time limit is expressly stipulated, an
application (such as the present) must be brought
within a reasonable
time. Given the nature of the present application, the closest
analogous period in the LRA is the six-week
period within which an
application for the review of an arbitration award in terms of s 145
of the Act must be filed. (The present
application has the effect of
reviewing and setting aside a settlement agreement that was made an
arbitration award). The applicants
failed to file the application
within that period and in response to the challenge by IMATU in the
answering affidavit filed on
its behalf, sought to explain the
reasons for the delay.
[10] The explanation for
the delay in filing the application is proffered in the replying
affidavit, where the deponent (Lebelo,
on behalf on the first to
third applicants) states that he ‘cannot recall precisely’
when the arbitration award was
received, but that it was ‘certainly
before 23 March 2006” the date on which the first applicant’s
mayoral committee
was informed of the decision. Between then and 5
May 2006, the date on which the first applicant instructed its own
attorneys to
contest the validity of the settlement agreement,
meetings and discussion occurred between the first applicant and
SALGA. Counsel
was consulted on 15 May, and memoranda were produced
on 12 and 26 June 2006. A further delay was occasioned by the second
applicant’s
decision to join the proceedings, and by similar
decision taken by the third and fourth applicants.
[11] The test to be
applied is that established by the Labour Appeal Court in
Queenstown
Fuel Distributors CC v Labuschagne NO & others
[2000] 1 BLLR
45
(LAC) where Conradie JA held that in the case of the late filing
of a s 145 application, the “
excuse for non-compliance
would
have to be compelling
, the case for attacking a defect in
the proceedings would have to be cogent and the defect would have to
be of a kind which would
result in a miscarriage of justice if it
were allowed to stand’
(at paragraph [24], own emphasis).
[12] The explanation
tendered by the applicants amounts to this - it took more than a
month and half to instruct attorneys, and
then a further two and half
months to produce the application. The explanations tendered by
Spalding on behalf of the second applicant
and Van der Merwe on
behalf of the third applicant add nothing to what is a woefully
inadequate explanation for the delay in filing
the present
application. Dr Khoza, who filed an affidavit on behalf of SALGA,
does not even deal with the point.
[13] The delay in filing
the present application cannot be viewed in isolation – it must
necessarily be viewed in the context
of the applicants’ conduct
in relation to the prosecution of these proceedings as a whole. The
events that form the basis
of the application occurred more than
seven years ago. The settlement agreement and the award that are
specifically the subject
of the relief sought in these proceedings
similarly have their origin in events that occurred more than seven
years ago. The present
proceedings were filed more than six and a
half years ago, and the matter has been ripe for hearing at least
since the granting
of an application to join the fifth respondent in
May 2008. The application was set down on the opposed motion roll on
various
occasions between 2008 and 2010, but never proceeded with. At
some point thereafter the file was endorsed “No action - file
closed/archived”. The matter appears to have been resurrected
(for reasons that are not apparent) when it was set down on
the
opposed motion roll on 29 December 2012 when it was postponed to the
date of the hearing, 5 February 2013.
[14] The insufficient and
unacceptable (let alone compelling) reasons for the delay in filing
the application aside, the applicants
have been less than diligent in
pursuing these proceedings. As
dominus litis
, they primarily
bear the burden of ensuring that the statutory objective of
expeditious dispute resolution is met, and in particular,
that the
proceedings be conducted with due diligence. This court has more than
once been reproached by the Supreme Court of Appeal
and the
Constitutional Court for systemic delays in the adjudication of
labour disputes. While this court must accept the blame
and the
responsibility to effect improvements where required, it is incumbent
on parties who litigate in this court to ensure themselves
that
applications and actions are timeously filed, that proceedings are
conducted in accordance with the time limits established
by the Rules
and that they exercise due diligence in securing dates for the
hearing of their matters. It is not inappropriate to
suggest, as the
Judge President recently has, that matters in the nature of a review
by definition have attached to them a degree
of urgency, and that
they should be regarded as such by the parties.
[15] In the present
matter, the applicants in effect seek to have a settlement agreement
and arbitration award issued more than
seven years ago set aside in
circumstances where there is no satisfactory explanation for the
delay in filing the application,
and where they have since litigated
at their leisure. In my view, this is a matter where the court ought
to exercise its inherent
powers in relation to control of its
procedure and the conduct of matters before it and refuse to
entertain the application on
the basis of a failure to prosecute the
application with due diligence. In my view, it is not in the
interests of justice to at
this late stage to reopen for examination
either the settlement agreement that brought a dispute referred to
conciliation in July
2005 to an amicable conclusion, or the binding
and certified arbitration award that gave statutory recognition and
enforceability
to that agreement. For that reason, the application
stands to be dismissed.
[16] If I have been
unduly querulous in coming to this conclusion, in any event, the
application stands to be dismissed on what
has been termed the “SALGA
representation’ point. In essence, the applicants contend that
while members of SALGA have
conferred authority on SALGA to act as
their collective bargaining representative, they did not mandate
SALGA to act as a representative
in disputes of right in which its
members are involved and in particular, that SLAGA had no authority
to represent the municipalities
in the arbitration hearing or the
conclusion of the settlement agreement.
[17] It is
well-established that a trade union or employers’ organisation
is entitled to act of its own accord during the
course of litigation
and settlement and that it may take a decision without obtaining an
express and individual mandate form its
members (see
Amalgamated
Engineering union v Minister of Labour
1949 (4) SA 908
(A),
Blyvooruitzicht Gold Mining Co Ltd v Pretorius
[2000] 7 BLLR
751
(LAC)). In the latter case, it was firmly established that a
union (and it follows) and employers’ organisation does not
derive its authority as agent, its obligations (and authority) are
derived from principles of representative governance. This entitles
a
union and an employers’ organization to decide how best to act
in the interests of its members, without any mandate from
its
members, and to conclude agreements accordingly. In the present
instance, a rights dispute subject to arbitration was settled.
The
dispute had been declared against SALGA, the decision to settle was
taken by SALGA, and SALGA signed the settlement agreement.
While not
all of SALGA’s members were happy with the decision (as
evidenced by the present proceedings) their unhappiness
is not a
basis on which to set aside the agreement.
[18] In relation to
costs, s 162 of the Act confers a broad discretion on the court to
make orders for costs according to the requirements
of the law and
fairness. The court has generally been reluctant to make orders for
costs in circumstances where an on-going collective
bargaining
relationship exists. This is such a case, and I see no reason to
depart from the convention.
I make the following
order:
The application is
dismissed.
André van Niekerk
Judge of the Labour Court
Appearances
For
the Applicant:
Second
and Third Applicants: Adv. AIS Redding SC, with him Adv. MA Wesley,
instructed by Bowman Gilfillan.
Fifth
Applicant: Adv. AIS Redding SC, with him Adv. Fourie, instructed by
Wesley Pretorius and Associates
For
the Respondent: Adv. H van der Riet SC, instructed by Francois du
Plessis Attorneys