Department of the Premier, Western Cape v Plaatjies NO and Others (C 515/2011) [2013] ZALCCT 8; [2013] 7 BLLR 668 (LC); (2013) 34 ILJ 2876 (LC) (11 April 2013)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Cape Town Labour Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Cape Town Labour Court, Cape Town
>>
2013
>>
[2013] ZALCCT 8
|

|

Department of the Premier, Western Cape v Plaatjies NO and Others (C 515/2011) [2013] ZALCCT 8; [2013] 7 BLLR 668 (LC); (2013) 34 ILJ 2876 (LC) (11 April 2013)

Reportable
Of interest to other judges
REPUBLIC OF
SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA,
CAPE TOWN
JUDGMENT
Case
no: C 515/2011
In the matter between:
THE DEPARTMENT OF THE PREMIER, WESTERN CAPE
Applicant
and
SAM PLAATJIES N.O.
First Respondent
THE GENERAL PUBLIC SERVICE SECTORAL BARGAINING COUNCIL
Second Respondent
COLIN DICKINSON
Third Respondent
JULIAN THOPS
Fourth Respondent
MICHAEL PRINCE
KYLE REINECKE
J P ZIMEMA
ILZE MATHESE
VUYO TUTSHANA
ALAN SMALL
MONGAWELI KWETA
SISA MAKABENI
MALUSI NCOLO
NOMVU NGCENGE
PHUMELA NGEMA
MONWABISI NGUQU
NTOMBEBANDLA MNYIKISO
DESIREE SWART
THE DEPARTMENT OF PUBLIC SERVICE and administration of batu
pele house
the department of justice and constitutional
development
Fifth Respondent
Sixth Respondent
Seventh Respondent
Eighth Respondent
Ninth Respondent
Tenth Respondent
Eleventh Respondent
Twelfth Respondent
Thirteenth Respondent
Fourteenth Respondent
Fifteenth Respondent
Sixteenth Respondent
Seventeenth Respondent
Eighteenth Respondent
Nineteenth Respondent
Twentieth Respondent
Heard
:
8 March 2013
Delivered
:
11 April 2013
Summary:
Review – jurisdiction of bargaining council.
Implementation of collective agreement and unfair labour practice.
JUDGMENT
STEENKAMP J:
Introduction
Can compliance with the terms of a collective agreement be attacked
under the provisions of the unfair labour practice jurisdiction
of
the Labour Relations Act
1
?
This review application concerns the jurisdiction of the second
respondent, the General Public Service Sectoral Bargaining Council

(GPSSBC or “the Bargaining Council”) over a dispute
arising from a collective agreement in the form of an Occupational

Specific Dispensation (“OSD”) for legally qualified
employees in the Department of the Premier of the Western Cape
and
the Department of Justice and Constitutional Development,
respectively.
The parties
The applicant is the Department of the Premier of the Western Cape.
It asks the Court to review, set aside and correct an award
by the
first respondent (“the arbitrator”), a panellist of the
second respondent (the GPSSBC). The third to ninth
respondents are
employed by the Department of the Premier. They were applicants in
the proceedings under review. I shall refer
to them as “the
Dickinson respondents”. The tenth to eighteenth respondents
are employed by the Department of Justice
and Constitutional
Development. They were also applicants in the proceedings under
review. I shall refer to them as “the
Small respondents”.
The Small respondents do not oppose the relief sought in this
application. The Dickinson respondents
do not oppose the relief
sought with regard to two of the points raised in the review
application, but they do oppose the argument
on the remaining
jurisdictional point. They agree, though, that this Court should
decide on the jurisdictional point instead
of remitting any
jurisdictional disputes to the Bargaining Council.
The dispute
The applicant initially raised three grounds of review. It only
pursued the third point in oral argument, namely that compliance

with the terms of a collective agreement by an employer cannot be
attacked under the provisions of the unfair labour practice

jurisdiction of the LRA.
Background facts
The OSD embodied in Resolution 1 of 2008 deals with the
“translation” of legal professionals from one
dispensation
to another.
The Dickinson respondents complain that they were incorrectly
“translated”. On 30 April 2009 they lodged a grievance

with the following complaints:
Complaint 1
The employer has failed to implement the OSD collective agreement.
Complaint 2
In respect of senior state legal advisors:
“
The
employer committed an unfair labour practice ... in that it decided
to translate senior state legal advisors on level 12 (MMS)
2
to LP8 on the new OSD for legally qualified employees, which is an
entry level for state legal advisors. The translation amounts
to a
demotion in rank and status since senior legal advisors are
translated from a middle management level to an entry level for

legally qualified employees.”
In respect of state legal advisors (i.e. below the level of senior
state legal advisors):
“
The
employer further committed an unfair labour practice in that it
decided not to promote state legal advisors on level 10 to the
new
post levels of at least LP7 on the OSD. The OSD introduces a new
uniform salary dispensation for all legally qualified employees
and
repeals the old salary and post dispensation. In terms of the new
salary dispensation (OSD) the entry levels for state legal
advisor
are LP7 or LP8, which is the appropriate scale to translate level 10
state legal advisors.”
Complaint 3
“
The
OSD agreement is being interpreted and applied incorrectly in that
the employer fails to:
recognise
that employees should be translated to a level similar in rank and
status as the ones that they currently have;
recognise
that the first translation leg for level 12 senior state legal
advisors to LP9 can be done under the OSD scales; and
adhere
to the spirit of the OSD agreement which aims to introduce new work
streams for state legal advisors, irrespective of their
current post
level, by excluding level 10 state legal advisors.”
On 29 July 2009 the Dickinson respondents referred a dispute to the
bargaining council over the interpretation and application
of the
collective agreement. In the alternative, they pleaded that they
were victims of an unfair labour practice.
Proceedings before the bargaining council
The parties agreed to file pleadings. The Dickinson respondents did
so, and so did the Department of the Premier, but the Department
of
Justice did not.
The Department of the Premier raised three points
in limine
at the Bargaining Council:
There was no valid referral of the case by the individual
applicants, other than Dickinson, as the other eight applicants had

failed validly to refer a dispute.
Trade union members not represented by the union did not have
locus
standi
to litigate an alleged breach of a collective agreement
concluded on their behalf by the union without the assistance of
the
union in the proceedings.
If the employer had not breached the collective agreement, it could
not be contended that, even though it had complied with
the terms
of the collective agreement, its conduct could still be found to be
an unfair labour practice.
The Department abandoned the first point – relating to a valid
referral – in the course of the proceedings before
the
Bargaining Council. At the commencement of oral argument in these
review proceedings Mr
Kahanovitz
, for the Department, also
informed the court that it would only pursue the third point, namely
that compliance with the terms
of a collective agreement by an
employer cannot be attacked under the provisions of the unfair
labour practice jurisdiction.
The Dickinson respondents submitted to the Bargaining Council that
they had been “incorrectly translated” in terms
of the
OSD. Under the heading of “legal issues to be determined”,
they did not specifically style that as a dispute
about the
interpretation or application of a collective agreement in terms of
section 24(2) of the LRA. However, they ticked
the box relating to
“interpretation and/or application of a collective agreement”
in the referral form. They pleaded
in the alternative:
“
Alternatively,
and in the event that it is found that the [Department’s]
interpretation and application of the aforesaid resolutions
do not
amount to a breach, then the applicants contend that the respondents’
conduct of translating them to legal advisers
LP8 amounts to a
demotion, which constitutes an unfair labour practice in terms of the
Labour Relations Act 66 of 1995
.”
The relief sought by the Dickinson respondents was that they be
translated from senior legal adviser level 12 to OSD LP 9.
The Department adopted the view that most of the evidence that the
employees intended leading related to the argument that their

placements under the collective agreement had been unfair, instead
of basing their cases on the limited issue of whether or not
the
outcome of the placement process constituted a breach of the
collective agreement.
The award
The arbitrator stated that the dispute was one about the
interpretation or application of a collective agreement. He also
noted
that the applicants had referred an unfair labour dispute and
he recorded the points
in limine
that I outlined above.
However, he made no rulings on the second and third points
in
limine.
He simply ruled:
“
After
considering argument of the parties to this dispute, the relevant
case law and legislation referred to, I hereby rule that
the point in
limine of the first and second respondents be dismissed and that they
are not entitled to the relief they sought in
the application.”
The parties in the review application agree that the arbitration
ruling should be reviewed and set aside on the basis that the

arbitrator failed to decide the two issues before him that he was
required to decide and only decided an issue that he was not

required to decide, as the Department had abandoned it.
The parties also agree that the Bargaining Council has jurisdiction
to decide a dispute about the interpretation and application
of a
collective agreement. The only remaining question is whether the
Bargaining Council has jurisdiction to hear an unfair labour

practice claim as pleaded by the Dickinson respondents in the
alternative.
In these review proceedings, the parties have requested the court to
decide the remaining jurisdictional point.
In limine
: condonation
The applicant did not file the record within the time periods
contemplated in
rule 7A(8).
It only delivered the record and
supplementary affidavit a year after it had launched the review
application.
The applicant launched the review application on 21 July 2011. On 4
September 2012 the Dickinson respondents brought an application
to
compel the Department file the record and its supplementary
affidavit. Only thereafter – a day after the application
to
compel had been delivered – did the Department deliver the
record and supplementary affidavit contemplated by
rule 7A(8).
The Department blames the delay largely on the Bargaining Council.
However, a large part of the delay – at least three
months –
is attributable to the negligence of the state attorney’s Mr
Leon Manuel.
On 21 July 2011, the state attorney delivered the notice of motion
calling on the Bargaining Council to dispatch the record to
the
registrar within 10 days, as contemplated by
rule 7A(2)(b).
On 18
August 2011, the registrar of this Court notified the state attorney
that the Bargaining Council had filed the record,
comprising a
compact disc and the contents of its file. On 22 August 2011 Mr
Manuel sent a letter to the Bargaining Council in
the following
terms:
3
“
Kindly
indicate what is contained on the CD filed, more specifically which
of the proceedings are contained since there had been
a number of
hearing, does the CD filed contain the recording of the proceedings
of 10 May 2011?”
Why Mr Manuel could not have listened to the CD to ascertain what
was on it, he does not explain. Nevertheless, on 26 August
2011 –
a week after he had received the record – Mr Manuel instructed
a legal transcription service to transcribe
the recording. Those
transcribers informed him -- he does not say when – that the
recording related to proceedings of 26
November 2010, and not to the
relevant hearing on 6 May 2011. On 1 September 2011 Manuel wrote to
the Bargaining Council again,
and asked it for the correct CD
containing the recording of the proceedings of 6 May 2011. He also
pointed out that some of the
pleadings, and the Dickinson
respondents’ bundle of documents comprising 339 pages, had not
been delivered. On 18 October
2011 the Bargaining Council’s
Lulu Malatji sent Manuel an email saying:
“
Kindly
note that the Commissioner Sam Plaatjies is struggling to copy
recordings on to a CD, therefore he suggests we conduct
reconstruction
of incomplete record, can I schedule the matter for
reconstruction?”
Manuel offers no explanation for his failure to conduct such a
reconstruction exercise over the course of the next two months.

Instead, he says:
“
In due
course and on 14 December 2011, the registrar informed our offices
that a further CD had been filed with the registrar. However,
the
remaining documents listed at paragraph 4 of [Manuel’s letter
of 1 September 2011] were still not filed by the [Bargaining

Council].”
Manuel then suggests that “given the time of the year”
he could only instruct transcribers to transcribe the recording
of
the proceedings on 5 January 2012. He does not explain why this
should be so, for example, whether the transcribers’
offices
were closed. Thereafter, he says, “counsel was briefed to
prepare the supplementary affidavit without the ‘documents

portion’ of the record.” He does not say who that
counsel was, nor why it should have taken more than two months
to
draft a supplementary affidavit comprising six pages. He claims that
the supplementary affidavit was finalised by 13 March
2012; however,
he “did not immediately file it as the record was still
deficient” since the Bargaining Council had
not filed the
documents he had asked for previously. Not only did Mr Manuel not
file the record “immediately”, though,
he did nothing
more to reconstruct it. He says somewhat coyly in his affidavit:
“
It
however seems that I neglected to do this for some months until the
Dickinson applicants’ newly appointed attorneys Webber
Wentzel
contacted me after 25 July 2012, when they came on record, calling
upon the applicant to file the record. It would seem
that
unfortunately due to the work pressure emanating from my litigation
practice in which I am the attorney of record in several
hundred
matters proceeding with this task had somehow slipped through the
cracks.”
Astonishingly, even after Webber Wentzel had alerted him to his
inaction, Mr Manuel remained in automatic mode. By the time the

Dickinson respondents filed the application to compel on 4 September
2012, he had still done nothing further, other than having
obtained
the Dickinson respondents’ documents from their attorney, Mr
Deon Visagie, “during August 2012” –
but still he
did not file the record. He only did so after the application to
compel had been delivered.
In the circumstances of this case, the lengthy delay will not lead
to any particular prejudice to the respondents. The parties
are
ad
idem
that the arbitration ruling should be reviewed and set
aside and that this Court should substitute its own ruling for that
of
the arbitrator. To the extent that the negligence of the
applicant’s attorney has prevented the matter from proceeding

expeditiously, this can be addressed by an appropriate costs order.
Condonation is granted for the late filing of the record and
supplementary affidavit.
Evaluation of the merits
The respondents do not take issue with the contents and terms of the
relevant collective agreement. Their complaint is that the
applicant
had incorrectly interpreted or applied the agreement in relation to
their translation.
The applicant argues that the Bargaining Council did not have
jurisdiction to consider this question. Its argument is that the

question before the arbitrator was an unfair labour practice claim
and that the jurisdictional facts which must be present before
the
arbitrator can hear such a claim relating to a promotion or demotion
were absent.
The question of jurisdiction must be determined on the pleadings, as
recently discussed by this Court in
PSA obo Liebenberg v
Department of Defence & Others.
4
As Van der Westhuizen J stated in
Gcaba:
5
“
Jurisdiction
is determined on the pleadings, as Langa CJ held in
Chirwa
,
and not the substantive merits of the case.”
6
A similar point was made by Nugent JA in
Makhanya v University of
Zululand:
7
“
[T]he
claim that is before a court is a matter of fact. When the claimant
says that the claim arises from the infringement of the
common law
right to enforce a contract, then that is the claim, as a fact, and
the court must deal with it accordingly. When the
claimant says that
the claim is to enforce a right that is created by the LRA, then that
is the claim that the court has before
it, as a fact. When he or she
says that the claim is to enforce a right derived from the
Constitution, then, as a fact, that is
the claim. That the claim
might be a bad claim is beside the point.
...
We know this [ie, what the claim
is] because that is what it says in the particulars of claim. Whether
the claim is a good one or
a bad one is immaterial. Nor may a court
thwart the pursuit of the claim by denying access to a forum that has
been provided by
law.”
And, as the Supreme Court of Appeal noted in
South African
Maritime Safety Authority v McKenzie
:
8
“
Once
more, as in other cases that have become before this court, the plea,
so far as it purports to raise a jurisdictional challenge,
is
misdirected. As the Constitutional Court has reiterated in
Gcaba
v Minister of Safety & Security and Others
,
the question in such cases is whether the court has jurisdiction over
the pleaded claim, and not whether it has jurisdiction over
some
other claim that has not been pleaded, but could possibly arise from
the same facts.”
Could the Bargaining Council deny the PSA access to that forum,
based on the referral to it? It has jurisdiction to decide a
claim
based on the application of the collective agreement. Whether it is
a good or a bad claim, is a different question.
9
But was this referral framed as an application dispute?
In the present case, the Dickinson respondents formulated the main
claim before the Bargaining Council as one concerning the

application of Resolution 1 of 2008, although it was somewhat
imprecisely formulated in their statement of claim. If that was
the
true nature of the dispute, the Bargaining Council had jurisdiction
to consider it in terms of section 24 of the LRA.
The alternative claim of an unfair labour practice is the more
contentious one. If the OSD has been correctly applied,
caedit
questio.
If the effect is unfair – and even if it leads to
the unintended consequence of a
de facto
demotion for the
PSA’s members – that is the consequence of a bad bargain
that the trade union had struck with the
employer. Its members must
live with the consequences, good or bad.
As this Court recently found in an analogous case
10
,
the arbitrator had no jurisdiction to deal with any unintended
consequences of the agreement. In
Strauss
, I referred to this
dictum
in
IMATU v SALGBC & others
11
:
“
An
elementary tenet of collective bargaining is that the constituency is
bound by the bargain, good or bad, that its representatives
make on
its behalf. ... The bargain, however, stands, unless it is manifestly
unconstitutional, a submission not made in these
proceedings.”
In
Mzeku & ors v Volkswagen South Africa & ors
12
this court confirmed that a collective agreement is binding on all
union members, even those who are in dispute with their own
union
about its terms. The only limitation on the primacy of collective
agreements is where a term is unlawful or unconstitutional.
Thus, in
SACCAWU v Shakaone & others
13
the Labour Appeal Court held that a collective agreement may not
override statutory provisions; and in
Larbi-Odam v MEC for
Education
14
the Constitutional Court held that, where the effect of an agreed
provision was to unfairly discriminate, its origin in a collective

agreement would not constitute a justification.
Even where a party had referred an interpretation and application
dispute to a bargaining council, it was incumbent on the arbitrator

to decide what the real dispute was. In
Minister of Safety &
Security v SSSBC and Others
15
the employee applied for a transfer within the South African Police
Services (SAPS). It was refused. He referred a dispute about
the
interpretation and application of a collective agreement
16
dealing with SAPS’s transfer policy and procedures to the
Safety and Security Sectoral Bargaining Council
(SSSBC). He challenged the decision of SAPS to refuse his
application for transfer.
The issue before the LAC was whether the
SSSBC had jurisdiction to deal with the dispute. And that issue had
to be determined
by how the court answered the further question,
whether or not the arbitrator correctly classified the dispute
before him as
one concerning the interpretation and application of a
collective agreement. It was accepted by both parties that, if the
dispute
was a dispute about the interpretation or application of a
collective agreement, the SSSBC had jurisdiction in respect of the
dispute; but that, if the dispute was about the fairness of the
transfer, the SSSBC did not have jurisdiction.
On the same day as it handed down judgment in
SSSBC,
the
LAC handed down judgment in
Johannesburg
City Parks v Mpahlani NO & others
17
(“City Parks”).
In
City Parks
18
the court offered the following explanation
between “a dispute” and “an issue in a dispute”:
“
[14]
There are a number of areas in the LRA with references to disputes or
proceedings that are about the interpretation or application
of
collective agreements, particularly in provisions that deal with
dispute resolution. Some of the sections of the LRA which contain

such references are ss 22 and 24. In all of those sections the
references to disputes about the interpretation or application of
a
collective agreement are references to the main disputes sought to be
resolved and not to issues that need to or may need to
be answered in
order to resolve the main dispute. Let me make an example to
illustrate the distinction that I seek to draw between
a
dispute
and
an
issue in a dispute
.
One may have a situation where an employee is dismissed for
operational requirements and that dismissal is challenged as unfair

because it is said that in terms of a certain collective agreement
the employer was supposed to follow a certain
procedure
before dismissing the employee but did not follow such procedure. In
such a case, in determining whether the dismissal was fair
or unfair,
the Labour Court would have to determine whether the relevant
provisions of the collective agreement were applicable
to that
particular dismissal. The employer may argue that, although the
collective agreement is binding on the parties, the particular
clause
did not apply to a particular dismissal. This means that the Labour
Court has to interpret and apply the collective agreement
in order to
resolve the dispute concerning the fairness or otherwise of the
dismissal for operational requirements. So, the real
dispute is about
the fairness or otherwise of the dismissal and the issue of whether
certain clauses of the collective agreement
are applicable and/or
compiled with before the employer was dismissed is an issue necessary
to be decided in order to resolve the
real dispute.
[15] In the above example it
cannot be said, for example, that the Labour Court has no
jurisdiction to adjudicate the dispute concerning
the dismissal for
operational requirements and it must be referred to arbitration just
because, prior to or in the course of, resolving
the dismissal
dispute, the issue concerning the interpretation or application of
certain clauses of the collective agreement must
be decided. It would
be different, however, where the main dispute, as opposed to an issue
in a dispute, is the interpretation
or application of a collective
agreement. In the latter case the Labour Court would ordinarily not
have jurisdiction in respect
of the dispute and the dispute is
required to be resolved through arbitration in terms of the LRA.
[16] The proposition advanced by
counsel for the appellant made no distinction between a dispute, on
the one hand, and an issue
in a dispute, on the other. That is why
the appellant's counsel was driven to submit that all disputes which
are dealt with by
a bargaining council are disputes about the
application of a collective agreement because the procedures for
dealing with such
disputes are provided for in a collective
agreement. Obviously, this proposition can simply not be correct. In
bargaining councils,
proceedings are held that are about all kinds of
disputes such as proceedings about dismissal disputes, proceedings
about disputes
concerning the interpretation or application of
collective agreements, proceedings concerning disputes about
organizational rights,
proceedings about wage disputes and
proceedings concerning other disputes.”
In
SSSBC
, the court applied the same reasoning. It found that
the dispute that was before the arbitrator in that case was a
dispute concerning
the fairness or otherwise of SAPS’s refusal
to approve the employee’s application or request for a
transfer and the
application of the provisions of the collective
agreement was an issue in dispute. It was an issue which had or may
have had
to be dealt with in order to resolve the real dispute. That
is the main dispute. The dispute itself did not relate to an
application
of the collective agreement. The court concluded that
the Bargaining Council did not have jurisdiction to arbitrate the
dispute
because that was a dispute concerning the fairness or
otherwise of the decision not to approve the employees application
for
a transfer.
This Court applied similar reasoning in
SA Onderwysersunie v Head
of Department, Gauteng Department of Education & others (1)
19
,
having referred to
City Parks
and
SSSBC
, when it held:
“
It
appears to me that the main dispute in this urgent application is not
the interpretation and application of a collective agreement.
The
relief sought is for the head of department to refund the money
deducted from the applicants' members pending the compilation
of a
factually correct database. In the course of deciding whether the
applicants are entitled to the relief sought, I have to
consider
various undertakings by the GDE, some of which are contained in
collective agreements of the PSCBC. Those agreements form
part of the
issues in dispute; but the main dispute is not the interpretation or
application of a collective agreement.”
In the case before me, the main dispute is the application of
Resolution 1 of 2008. The Bargaining Council had jurisdiction to

deal with that dispute. It did not have jurisdiction to deal with
the alternative claim of an unfair labour practice involving
a
demotion. If the OSD was applied correctly, the Bargaining Council
cannot determine whether it was unfair. It is a collective
agreement
and the parties are bound by its terms.
Conclusion
In my view, the Bargaining Council would not have jurisdiction to
consider whether the OSD – a collective agreement and
the
product of collective bargaining – was implemented fairly;
however, it would have jurisdiction to consider whether
it was
applied correctly. That is a dispute about the interpretation or
application of collective agreement envisaged by section
24 of the
LRA.
In general, of course, the Bargaining Council does have jurisdiction
over unfair labour practice disputes in terms of section
186(2)(a).
If a party refers an unfair labour practice dispute to the
Bargaining Council, that party will have to establish whether
the
employer did commit an unfair act relating, for example, to the
promotion or demotion of the employee. In this case, that
is what
the Dickenson respondents alleged in the alternative. But that
alleged unfairness arose from the implementation of the
collective
agreement itself. If the OSD was correctly applied, the arbitrator
did not have jurisdiction to decide whether it
amounted to an unfair
labour practice.
Costs
Although some of the delay in delivering the record and
supplementary affidavit in terms of rule 7A can be ascribed to the

Bargaining Council, much of it is due, as I have set out under the
heading of “condonation”, to the state attorney,
and
specifically Mr Leon Manuel. It led to the Dickenson respondents
having had to bring an application to compel the applicant
to comply
with the rules. In those circumstances, the applicant should, at the
very least, be ordered to pay the costs of the
application to
compel. I shall leave it to the applicant and the state attorney to
decide whether those costs should be paid
by the Department or by
the state attorney; in either event, unfortunately, it is the
taxpayer that will bear the brunt.
There is a further aspect relating to costs, and that is the prolix
documentation filed by the applicant. The record comprises
more than
500 pages. Very little of that was relevant to the review
application, given that this application was mainly argued
on a
crisp legal point. Having trawled through more than 500 pages of
record and 200 pages of pleadings, the Court was referred
to no more
than about five pages in the record that were relevant to this
application.
Rule 7A(5) specifically addresses the question of the portion of the
record to be filed
20
:
“
The
applicant must make copies
of
such portions of the record as may be necessary for the purposes of
the review
and certify each copy as true and correct.”
And rule 7A(6) reiterates that:
“
The
applicant must furnish the registrar and each of the other parties
with a copy of the record
or
a portion of the record
,
as the case may be, and a copy of the reasons filed by the person or
body.”
Rule 7A(7) contemplates that the costs of transcription of the
record, copying and delivery of the record and reasons, if any,
must
be paid by the applicant and then become costs in the cause. Given
the failure of the applicant and its attorneys to apply
their minds
to which portions of the record were necessary, and then blaming
their delay in filing the record on waiting to obtain
documents that
were largely irrelevant, the applicant must pay the costs
contemplated by rule 7A(7), regardless of the overall
cost order I
intend to make.
With regard to the costs of this application for review, no costs
order would be appropriate as the parties agreed that the
arbitration award should be reviewed and set aside and that this
Court should replace its own ruling for that of the arbitrator.
Order
I therefore make the following order:
The arbitration ruling of the first respondent dated 10 May 2011 is
reviewed and set aside.
The ruling is replaced with a ruling that the Bargaining Council
does not have jurisdiction to arbitrate an unfair labour practice

dispute arising from the application of Resolution 1 of 2008. The
Bargaining Council does have jurisdiction to arbitrate a
dispute
over the interpretation and application of that Resolution in terms
of
section 24
of the
Labour Relations Act.
The
applicant is ordered to pay the costs occasioned by the third
to ninth respondents in their application to compel of 4 September

2011, as well as the costs contemplated by
rule 7A(7).
_______________________
AJ Steenkamp
Judge of the Labour Court of South Africa
APPEARANCES
APPLICANT:
CS Kahanovitz SC
Instructed by the State
Attorney.
THIRD TO NINTH
RESPONDENTS:
TJ Golden
Instructed
by Webber Wentzel.
TENTH TO
EIGHTEENTH
RESPONDENTS:
Adams & May
attorneys.
1
Act
66 of 1995 (the LRA).
2
Middle
Management Service.
3
Grammar
as in original.
4
Case
No C 938/11, 30 November 2012.
5
Gcaba
v Minister of Safety & Security and Others
2010 (1) SA 238
(CC);
[2009] 12 BLLR 1145
(CC) para [75].
6
See
Chirwa v Transnet Ltd
[2007] ZACC 23
;
2008 (4) SA 367
(CC); (2008) 29
ILJ
73 (CC);
[2008] 2 BLLR 97
(CC).
7
2010
(1) SA 62
(SCA) paras [71] and [95].
8
2010
(3) SA 601
(SCA) para [7].
9
For
a full discussion of the jurisdictional question, see Steenkamp and
Bosch, “Labour Dispute Resolution under the 1995
LRA” in
Le Roux & Rycroft (eds),
Reinventing Labour Law: Reflecting
on the first 15 years of the
Labour Relations Act and
future
challenges
(Juta 2012).
10
PSA
obo Strauss & others v Minister of Public Works & others
(Case No C 381/12, 20 March 2013).
11
(2010)
31
ILJ
1407 (LC) para [13].
12
[2001]
8 BLLR 857
(LC).
13
[2000]
10 BLLR 1123
(LAC).
14
1998
(1) SA 745 (CC).
15
(2010)
31
ILJ
1813 (LAC).
16
Safety
& Security Sectoral Bargaining Council Agreement 5 of 1999.
17
(2010)
31
ILJ
1804 (LAC).
18
Supra
paras [14] – [16].
19
(2011)
32
ILJ
1413 (LC) para [38].
20
My
underlining.