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[2013] ZALCPE 6
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Arends and Others v South African Local Government Bargaining Council and Others (P107/12) [2013] ZALCPE 6; [2013] 5 BLLR 465 (LC); (2013) 34 ILJ 2560 (LC) (1 March 2013)
REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, PORT ELIZABETH
JUDGMENT
Reportable
Of interest to other
judges
case no: P107/12
In the matter between:
C
ARENDS AND OTHERS
Applicants
and
SALGBC
First
Respondent
MARTIN
LE ROUX KOORTS N.O
Second
Respondent
NELSON
MANDELA BAY MUNICIPALITY
Third
Respondent
Heard
:
19
February 2013
Delivered
:
1
March 2013
Summary:
Review
of a jurisdictional ruling in terms of which the second respondent
found that the individual employees have not made out
a case for the
relief sought. The second respondent concluded that the true nature
of the dispute is not capable of being arbitrated.
judgment
MOSHOANA, AJ
Introduction
This is an application
to review and set aside an award issued by the second respondent
under the auspices of the first respondent.
It was common cause
between the parties that effectiveley the award is a jurisdictional
ruling.
Background facts
Following the
disestablishment of Port Elizabeth Municipality, the Uitenhage
Municipality and the Despatch Municipality, the third
respondent was
established. Owing to the obvious salary disparities, it seems that
a team was commissioned to look into the disparities.
In April 2005,
the council of the third respondent considered a report tabled
before it dealing with the differing levels of
remuneration.
In May 2005, the council
of the third respondent adopted a resolution that the transitional
allowances would be paid with retrospective
effect. During October
2006, a similar resolution was adopted extending the ambit thereof
to level one Managers and Assistant
Managers and Grades1-14
employees. The transitional allowance scheme was intended to be for
a short duration in anticipation
of a long term resolution to be put
in place by a Task team, which was to produce new uniform post
evaluation and grading scheme
for the local government. During
transition what obtained was the old salary rate from the previous
municipalities and a transitional
allowance.
Due to the delay in
implementing a uniform scheme a collective agreement was entered
into known as the Pay Parity Collective Agreement.
The parties to
the agreement are the third respondent and two unions, SAMWU and
IMATU. The agreement was signed on 11 December
2009. In terms of
clause 3.2 thereof receiving of transitional allowance introduced
was to cease with the implementation of the
collective agreement.
The implementation date of the collective agreement was set as 1
July 2009. On 18 February 2010 letters
were directed to the
applicants advising as follows ‘I have pleasure in advising
that on 11 December 2009, a parity agreement
for Nelson Mandela Bay
Municipality was signed by the Employer and both Labour Unions. In
terms of this agreement, you have been
designated as Assistant
Director on Grade 0016 (R329 124-R371 940) at a salary of R371 940
per annum, effective from 1 July 2009.
Service conditions that
currently apply to your position will remain effective until
amendments, effected through the appropriate
Bargaining Forum, are
introduced. Should you not concur with the parity offer, you are
entitled to lodge an objection, in writing
within fourteen (14) days
of date of this letter, which must be addressed to the Pay Parity
Task Team, 16th floor, Lilian Diedericks
Building (formerly Brister
House) and contain full details of the legitimate ground on which
your objection is based. However,
I trust that you will be satisfied
with the above offer of parity and continue to serve the Council in
an exemplary manner.’
The letter was signed by
the Executive Director Corporate Services. In making the offer, the
Executive Director was implementing
as it were clause 4.5 of the
Parity Agreement, which reads- ‘Existing employees, who as of
the date of the signing of the
agreement are currently earning a
salary that falls below the salary for the benchmark grade for their
counterparts performing
the same work, will be migrated to the notch
where the highest earner is situated within that position on the
structure. It seem
common cause that none of the applicants rejected
the offer and accordingly, their individual contracts of employment
were amended
as collectively agreed.’
It is apparent that on
17 and 18 June 2010, at the breakaway of the LLF, a forum
constituted by labour and management, a resolution
was adopted
highlighting that there was incorrect implementation of the parity
agreement and employees will have to pay back.
A task team was put
in place to deal with the validation of the employees who benefited
improperly. The task team met on 22 July
2010. On 23 August 2010 the
Acting Municipal Manager was given a report from the task team
effectively directing recovery of
monies following a validation
schedule.
On 29 September 2010, a
further correspondence was addressed to the applicants seeking to
correct an error that led to an over-payment.
The contention of the
third respondent was that the grading was supposed to have been 14
as opposed to 16. The effect of this
being that the individual
contract was amended erroneously as it were if the contention of the
third respondent was anything
to go by or that they were now seeking
to resile from the agreed amendment. Nonetheless, the applicants
were given an opportunity
to give reasons why they are not in
agreement and a representation on means and how the over-payment
could be repaid to the third
respondent. On 1 September 2011, a
letter was dispatched by the applicants’ attorney Francois Le
Roux enclosing a referral
to the CCMA.
In short, the letter was
registering an objection to the proposed change and deduction. The
referral to the CCMA was about alleged
unilateral change to terms
and conditions of employment and interpretation and application of
collective agreement. The summary
of facts therein records thus;
‘NMBM is threatening the unilateral implementation of changes
to conditions of employment,
purportedly in terms of a collective
agreement’. The desired results were: ‘non-implementation
of the change’.
On 3 October 2011, the CCMA conciliated the
dispute and issued a certificate directing the dispute to
arbitration.
For some reason a
further referral was made on 3 October 2011 to the first respondent.
The dispute was catergorised by the referring
parties as one of
interpretation and application of collective agreement. In summary
of the facts the referring parties recorded
that ‘the parties
are in dispute regarding the Pay Parity Agreement’. The
desired outcome was couched in the following
terms: ‘NMBM to
desist from unilaterally reducing remuneration benefits.’
It seems apparent that
on 25 October 2011, the first respondent certified the dispute to be
unresolved. On the same day, the applicants
requested resolution of
the dispute through arbitration. The dispute referred to arbitration
was catergorised as interpretation
and application of collective
agreement. The decision required was couched as: ‘employer not
allowed to implement reduction
of remuneration.’
On 19 January 2012, the
arbitration hearing sat. At the commencement, the applicants’
attorney advised the second respondent
that a single primary issue
raised was whether the Pay Parity Agreement permits the employer to
reduce employees’ earnings
below a given employee's total
level of earnings as at the date of signature. From the record
produced it is apparent that the
applicants through their attorney
identified the issue in dispute as whether the Parity Agreement
allowed a drop in earnings.
After making some opening remarks, the
second respondent and the parties agreed on time frames within which
to make written submissions
on the issue. Parties agreed to submit
bundles they had prepared in anticipation of a full arbitration
hearing. The applicants’
bundles was labelled A and the third
respondent's bundle was labelled B. Thereafter, written submissions
were delivered as agreed.
On 15 February 2012, the second respondent
published his award.
The applicants were
aggrieved by the award and launched this application. It appears
that another application was launched to
stay the award pending the
outcome of this application. This court issued an order staying the
enforcement of the award. This
application is being opposed by the
third respondent.
Evaluation
The determination of
this matter lies squarely on the true nature of the dispute between
the parties. The matter requires a careful
consideration of the
content and meaning of section 24 of the LRA. As a point of
departure, it is important to note under which
part of the LRA is
the section located. It is located in Part B-Collective agreements.
In my view, the fact that section 24 is
located there implies that
only collective agreement issues are dealt with there. Firstly,
section 23 deals with the legal effect
of collective agreements.
Secondly, section 24, which is the section I intend considering
carefully deals with disputes about
collective agreements. I find it
behoveful for me to quote in full the relevant text of the section.
The
section reads: - 24 Disputes about collective agreements-(1) Every
collective agreement excluding an agency shop agreement
concluded in
terms of section 25 or a closed shop agreement concluded in terms of
section 26 or a settlement agreement contemplated
in either section
142A or 158(1)(c) must provide for a procedure to resolve
any
dispute about interpretation or application of the collective
agreement.
The
procedure must first require the parties to attempt to resolve the
dispute through conciliation and, if the dispute remains
unresolved,
to resolve it through arbitration. (2) If there is a dispute about
the interpretation or application of a collective
agreement,
any
party to the dispute may refer the dispute in writing to the
Commission if-.
(my
own underlining)
What is immediately
discernible is that the section spells out the nature of the dispute
contemplated. The dispute ought to be
about interpretation or
application of a collective agreement. If a dispute is not about
interpretation or application of a collective
agreement, then that
dispute does not resort under section 24. Further, the section
limits the dispute to be between the parties.
The section affords
parties a discretion to refer a dispute to the Commission. In my
mind, a party is a person who would have
entered into a collective
agreement. This thinking is fortified by the definition afforded to
the term collective agreement in
section 213 of the LRA. It refers
to one concluded by one or more registered unions, on the one hand
and, on the other hand-one
or more employers; one or more registered
employers’ organisations; or one or more employers and one or
more registered
employers’ organisations.
It
must follow axiomatically that an individual employee cannot be a
party to a collective agreement. A party can either be a
registered
trade union or an employer or employer's organisation. If the
legislature contemplated employees, it could have used
the phrase
one employee or more employees as it did with employers. The issue
of who a party is is distinct from the binding
nature of the
agreement. Alive to the concept of
stipuatio
alteri
,
the legislature introduced section 23 (c)-(d). Employees can derive
benefits from a collective agreement even if not parties.
To my mind
employees only derive benefits from a collective agreement and are
not parties to the agreement. In
Thal
v Baltic Timber Co
,
1
Sutton J said- ‘the
Baltic Timber Co to show before it can recover under the contract,
that it was either a party to the
contract or that as
a
third party
for
whose
benefit
the
stipulation had been made it had accepted it.’ (my
underlining)
According to Christie's,
The Law of Contract in South Africa 6th Edition 2010, the identity
of the parties is as essential a term
of the contract as is the
subject matter. I conclude by saying that a non party cannot refer a
dispute in terms of section 24
of the Act. Since employees are
generally non parties but beneficiaries, they cannot in my view
refer a dispute in terms of section
24.
After
identification of a party follows the nature of the dispute. The
legislature employed the word “about”. The
dictionary
meaning of the word is in connection with; appertaining to; dealing
or occupied with; concerning; on the subject of
or in relation to.
2
The first step towards
interpretation is to give words employed their ordinary dictionary
meaning. Therefore, a dispute firstly
must be concerning a
collective agreement and secondly and most importantly it must be
concerning the interpretation or application
of the collective
agreement. The dictionary meaning of interpretation is the action of
explaining the meaning of something, the
proper explanation or
signification of something. Therefore, the parties must be concerned
with an explanation of the meaning
of something. Ordinarily, an
interpretation dispute involves one party explaining the meaning of
the entire agreement or a specific
clause different from the other.
Then the parties are in dispute.
I
have said the following in
United
Transport and Allied Trade Union v Jammy N.O
:
3
‘
In
my view, a true dispute contemplated in section 24, is one that seeks
either an application or an interpretation of a collective
agreement.
Such would be, for instance in an application claim, a party may
approach the CCMA to say in terms of clause 4, it is
entitled to 3
hours lunch and is not been afforded it. On the interpretation issue,
a party may approach the CCMA. For instance,
if according to party A,
the term lunch, as employed in the agreement means a period of one
hour as opposed to three hours.’
Application is defined
as the action of bringing something into material. Ordinarily an
application issue arises where something
contemplated in the
agreement does or does not happen or happens deficiently. Having
said all that I turn to the very difficult
question. How does the
Council or the CCMA attract jurisdiction? I do so now.
Jurisdiction
obtains in two forms. Firstly, certain facts must exist before a
power to decide arises. That part is known as objective
jurisdictional facts. Secondly, an instrument must give that
authority. That is the power itself. Often times, it is located
in a
statute or regulation. In relation to this particular matter, the
section allows conciliation and arbitration. However,
if the
objective jurisdictional facts are absent, there is no power
irrespective of the exercising of the power in terms of the
empowering legislation.
4
The
jurisdictional facts appertaining to this matter are what the nature
of the dispute is and the contesting persons. An appointed
functionary must satisfy himself or herself that the dispute brought
under section 24 concerns a collective agreement and its
application
or interpretation. If the dispute concerns something else, then it
is not justiciable under section 24 and the repository
of power is
handicapped. Often times, the difficulty arises on an apparent
technical divide between concerning and mentioning.
By that I mean,
a dispute may concern a particular issue but in the course something
else is mentioned. In
Junid
Manufacturing CC v NBCCMI and Others
,
5
I had an occasion to say
that a simple labeling of a dispute as one within the contemplation
of the section does not make the
dispute one justiciable under the
section. The true dispute gives rise to the application of the
section.
The
LAC in
Johannesburg
City Parks v Mphahlani NO and Others
6
drew a distinction
between a dispute and an issue in a dispute. There are situations
where the decider of facts may be called
upon to interpret a
collective agreement in order to arrive at a resolution of the main
dispute. What finds jurisdiction is not
an issue in a dispute but a
real dispute. This decision was confirmed by the LAC in the matter
of
Minister
of Safety and Security v SSBC and Others
[2010]
6 BLLR 594
(LAC) at paragraphs 7-11 of the judgment. Not only am I
bound by those two instructive judgments I also agree fully with
them.
I
am acutely aware that the Mphahlani judgment was overturn on appeal.
I however believe that the judgment was overturned on a
different
basis. What the LAC sought to say with regard to the distinction in
my view remains undisturbed. I am unable to agree
with Grogan A in
the matter of
Imatu
obo D'Oliviera v Buffalo City Municipality
,
7
when he said that since
a referring party is a
dominus
litis
he
may choose how to frame the cause of action and depending on how he
or she framed an action jurisdiction follows. This statement
ignores
the very rubric and fundamental question that if the jurisdictional
facts are absent, there is no jurisdiction. It also
ignores the long
line of authorities that before jurisdiction is exercised the true
dispute must be identified. As correctly
held in
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
8
arbitrators perform
administrative functions and make administrative decisions. Before
such decisions can be made there must be
power to do so.
A
court of law does not perform administrative functions. It will
therefore be correct to accept that the jurisdiction of the
courts
arises from how a party pleads. Pleading is quite different from
existence of jurisdictional facts to clothe an administrator
with
powers. What the statement suggests is that if a party in his or her
referral deals with an administration of estates issue,
the
administrator must rule on that matter simply because he or she has
pleaded the issue. Niehaus for the applicants also brought
to my
attention an award by Marion Fouche in a matter of
Imatu
obo Bubb and Others v SALGA and Others
case
number HQ 051003. Fouche also seem to echo the same sentiments that
pleadings guides jurisdiction. For the same reasons set
out above, I
do not agree. Recently the LAC in the matter of
Shell
Energy (Pty) Ltd v NBCCI and Others
9
endorsed the approach of
determining jurisdictional facts before exercising power. It did so
by citing with approval the case
of
Pinetown
Town Council v President of the Industrial Court and Others
10
(N) where the court
said: ‘[w]here the jurisdiction of a tribunal is dependent on
the existence of a particular state of
affairs, it cannot give
itself jurisdiction by incorrectly finding that the conditions
precedent to jurisdiction known as
jurisdictional
facts which must objectively exist before the tribunal has power to
act
.’
(my underlining)
In
fact as the LAC held in
SARPA
matter rulings such as
one for Fouche are made for convenience. What determines
jurisdiction is the objective facts and not how
a party pleads as it
were. In any event, in arbitration proceedings there are no
pleadings, there is a referral. The duty to
determine the true
dispute still remains.
On
review of a ruling that jurisdiction does not obtain, the test is
one of objective facts to obtain jurisdiction. In other words,
do
the jurisdictional facts obtain in order to exercise the power? If
they did, this court should find that jurisdiction obtained
irrespective of what the arbitrator has said. However, if I find
that the arbitrator performed his task being interpretation
or
application of the collective agreement, I will be unable to
interfere with such an application or interpretation even if
I do
not agree with it.
11
However, in this matter,
Niehaus for the applicants contended that the arbitrator performed
his task in a deficient manner in
that he did not deal fully with
the dispute. Further, he contended that by taking into account
material not agreed to, he subjected
the applicant to a procedural
irregularity. I shall consider these contentions separately later in
this judgment if necessary.
I accept that when it
comes to application non-compliance with a particular clause of the
collective agreement may fall within
the concept application of the
collective agreement even if it also strictly speaking mean a breach
of an agreement in a common
law sense. Section 138 (9) amongst
others gives a commissioner the power to make an award that gives
effect to any collective
agreement. I must point out that this
section on its own does not confer jurisdiction on the CCMA without
more. This section
must be read with section 24. All it does, it
gives the commissioner powers to issue an award when having the
necessary jurisdiction
that will give effect to any collective
agreement a commissioner sought to interpret or apply in terms of
section 24. It seeks
to widen the relief as it were in disputes
about interpretation and application of a collective agreement. The
first hurdle to
cross is to place the dispute squarely within the
letter and spirit of section 24. Having done that, resort to section
138(9)
on the issue of the relief.
The arbitration award
In his award, the second
made the following pertinent findings:
‘
I
have carefully considered the arguments before me and it is my view
that the respondent is correct in their assertion that the
SALGBC do
not have the required jurisdiction to determine the enforceability or
implementation of a collective agreement. It is
evident to me that
the SALGBC do not have the powers to interpret the Pay Parity
Collective Agreement and then award the relief
sought by the
Applicants, namely that the Employer not be allowed to implement
reduction of remuneration as recorded in the referral
form of the
Applicants.’
He went further to find
that: ‘It is clear that nowhere in the Pay Parity Collective
Agreement a right exists for a salary
not to go down or to remain at
the pegged constant as stated by the Respondent. It is my view that
after inter alia an assessment
on the facts of this matter, the true
nature of the dispute, relevant case law presented that the dispute
is not a dispute that
can be arbitrated.’ He concluded by
saying:
‘
In
the premises I must concluded (sic) with the Respondent that the Pay
parity Agreement was not implemented and neither is it capable
of
argument, that employees' salary structures or overall remuneration
was to be downgraded or lowered. Payments were effected
contra the
Pay Parity Agreement and the Respondent now lawfully seeks to rectify
its error.’
The review
It is contended by the
applicants that in failing to realise that he could entertain the
dispute, the second respondent failed
to discharge his function as
arbitrator and committed a fundamental error of law. He failed to
appreciate that the dispute is
one of right as contained in the Pay
Parity Agreement. He exceeded his powers by considering an issue not
properly before him.
He adjudicated with reference to evidentiary
material not properly before him, thereby exceeding his powers. He
failed to apply
mind and reached a decision a reasonable
commissioner could not reach.
Application of the law
to the facts of this case
Before I do so, I deem
it appropriate to consider the grounds of review raised. With regard
to lack of jurisdiction I simply state
that as it will become
apparent when I apply the law to the facts, I have no reason to find
that the second respond was wrong
when he found that he lacked
jurisdiction. He committed no fundamental error in law. Regarding
the right in the Pay Parity Agreement,
the second respondent is spot
on when he found that the Pay Parity Agreement does not give right
to no lowering of salary. In
argument, I asked Mr Niehaus to direct
my attention to a clause protecting the right in question. He could
not. He, however,
retorted that the entire agreement did not
envisage a worse off situation. This does not help the applicants.
As alluded to earlier
in this judgment, I am not averse to an
argument that non compliance with a collective agreement gives rise
to a dispute about
application. Since the applicants cannot point a
clause not complied with in the collective agreement, it must follow
that their
claim is not germane from the agreement. I agree that the
award is not the best model of clarity. But proper reading reflects
a proper reasoning.
Regarding
excess of power, the argument by Niehaus is that consideration of
the merits without proper powers suggests excess of
power. As a
general statement of law a person exercising a power he or she does
not have is considered to be acting
ultra
vires
and
his or her decision is unlawful. However, with regard to this matter
I fail to comprehend the assertion in the light of what
the parties
recorded as an issue to be considered. In the applicants’
attorney’s mouth, there was a single primary
issue. The second
respondent answered it by saying there is nothing in the collective
agreement that gags the third respondent
to reduce the salary. He
was asked to do that, he does that he is accused of excess of power.
This does not make sense.
The
other argument of excess of power is premised on an alleged
agreement that in considering the matter, the second respondent
was
confined to the two bundles and nothing more. To the extent that he
considered further documents he acted
ultra
vires
so
went the argument. A finding that the second respondent was correct
that he had no jurisdiction on the objective facts defeats
this
ground. However, on careful perusal of the record, I was unable to
identify the alleged agreement. All I observed is a question
from
the second respondent whether the documents were the only documents.
The applicants’ attorney simply mentioned the
overlap without
expressly confirming that those were the only documents.
On
failure to apply mind and the reasonableness test, the answer lies
on the test for jurisdictional reviews. The test to be applied
is
whether on the facts objectively viewed there was jurisdiction.
12
Accordingly, in my view
all the grounds are without merits and are bound to be dismissed.
Turning
to application of the law to the facts, I am of a firm view that the
true dispute between the applicants and the third
respondent is one
of reduction of salary contrived as Grogan for the third respondent
correctly argued as one residing in section
24. The exercise of
determining the true dispute satisfies the requirement of
jurisdictional facts. Same exercise was endorsed
by the LAC albeit
in a strike context in the matter of
Ceramic
Industries Ltd v Betta Sanitaryware v NCBAWU
(2).
13
Traces
of the true nature of this dispute are evident from the referral
documents and the reliefs sought. In any event in my view
the
applicants’ claim is located in their individual contracts as
novated by the collective agreement. In the context of
stipulatio
alteri,
the
applicants acquired a benefit from the collective agreement by
having their individual contracts amended. An offer was made
and
accepted by them. In law, an agreement comes into existence thereby.
It is that agreement that is allegedly breached.
A further difficulty
with the applicants claim lies in the fact that they are not parties
to the collective agreement. Although
the second respondent did not
refuse jurisdiction on this basis, this court is perfectly entitled
to raise it in considering
the objective facts. More appropriately
because the point was raised and argued. Grogan argued that the two
unions who are parties
to the collective agreement did not raise any
dispute. This lends credence to the very point that there was no
breach of the
collective agreement. The two unions were part of the
LLF that resolved to validate and recover monies paid improperly. To
my
mind disputes in terms of section 24 can only be referred by
parties to the collective agreement in question.
For non parties, a
collective agreement may serve as evidence of a particular contended
right. In such instance, if interpretation
arises, it becomes an
issue in a dispute and not the dispute. On the whole, the facts of
this case simply demonstrate a dispute
of breach of individual
contracts. Such disputes are justiciable in this court and the civil
courts in terms of section 77 (3)
of the BCEA.
Even
if I am wrong, that the second respondent did not have jurisdiction
and the dispute is truly about the application of the
collective
agreement, the fact that the second respondent found that the
collective agreement does not give the right contended
for, he
performed his task. I cannot agree with Niehaus that he performed it
deficiently and the dispute ought to be remitted.
The applicants
were represented by a seasoned labour lawyer. He identified the
issue as simply one of whether the agreement permits
the employer to
reduce the earnings. A pertinent answer was couched in the following
terms fully quoted earlier: ‘It is
clear that nowhere in the
Pay Parity...’ Having done that, he determined the application
of the Pay Parity Agreement. I
have no basis to fault this
conclusion. In coming to this conclusion which is closely linked to
the jurisdiction aspect in terms
of power, I must accept that the
second respondent acted
ex
abudandi cautela.
That
being in the event I am wrong that I do not have jurisdiction, I
however do what the parties asked me to do. Regarding the
contention
of failure to apply mind, it ought to be repeated that failure to
apply mind entails taking into account irrelevant
considerations and
ignoring the relevant ones. I do not think that the second
respondent did that. The relevant considerations
appertaining to the
issue laid at the door of the second respondent is simply whether
the Pay Parity Agreement prevented the
third respondent from
lowering the earnings as it proposed to do. Application of mind is
evident from this passage in the award:
‘
The
evidence shows that the implementation of the Pay Parity Agreement,
an unlawful instruction was issued by the Acting Municipal
Manager to
functionaries in the respondent's corporate department. The unlawful
instruction was to the effect that the pay parity
agreement was
disregarded by the respondent, and that the method which was used to
calculate salaries due to the applicants was
the method previously
used in calculating transitional allowances which was clearly a
decision which was ultra vires to the pay
parity agreement... The
applicants was(sic) aware that the decision was incorrectly taken and
cannot now hold that the respondent
must be held to its decision
which was incorrectly taken...’
I
am aware that the applicants argue that the issue of unlawfulness
was not pertinently raised and documents appertaining thereto
were
sneaked in as it were contrary to the agreement between the parties.
I have already found that such an agreement is not
apparent. In our
law, a party may not be estopped from raising
ultra
vires
.
14
Therefore, even if I
were to accept that the issue was to be pertinently agreed upon to
be part of the case as it were, the material
placed before the
second respondent demonstrate that the Municipal Manager acted
ultra
vires
and
as a critical factor for the determination of the dispute, the
second respondent was obliged to have regard to it even if
not
raised pertinently as it were by any of the parties.
In summary, it is my
view that on the facts objectively viewed the second respondent was
correct in concluding that the first
respondent has no jurisdiction.
If I am wrong, I come to the conclusion that the second respondent
performed his task within
the contemplation of the section and his
award is reasonable and unassailable. I rejected all the grounds
persisted with to suggest
that the award is reviewable in law.
Order
In the results, I make
the following order:
The application for
review is dismissed with costs.
_______________________
Moshoana, AJ
Acting Judge of the
Labour Court of South Africa
APPEARANCES
APPLICANT:
Attorney
Minaar Niehaus
Of
Minaar Niehaus Attorneys, Port Elizabeth.
THIRD
RESPONDENT:
ADV
J G Grogan SC
Instructed
by Gray Moodliar Attorneys, Port Elizabeth.
1
1935
CPD 110.
2
See
The New Shorter Oxford English Dictionary.
3
[2010]
7 BLLR 774
(LC) at para 23.
4
See
in this regard
SA Defence Aid Fund v Minister of Justice
1967
(3) SA 31
(C),
Kimberly Junior School and Another v Head,
Northern Cape Education Department and Others
2010
(1) SA 217
(SCA)
and
SAPS v Salukazana
[2010] 7 BLLR
764
(LC).
5
[2009]
5 BLLR 463
(LC).
6
[2010]
6 BLLR 585
(LAC) at para 14.
7
[2012]
33 ILJ 3019 (BCA).
8
(2007)
28 ILJ 2405 (CC) at para 230.
9
Case
number JA 42/10,
[2012] ZALAC 39
(12 December 2012) yet unreported.
10
1984
(3) SA 173
(N).
11
See
SAMWU v SALGA and Others
[2012] 4 BLLR
334
(LAC); (2012) 33 ILJ 353 (LAC)
.
12
See
in this regard
SAPS v SSBC and Others
[2012] 33 ILJ 453 (LC)
and the authorities cited therein.
13
(1997)
18 ILJ 671 (LAC).
14
See
Strydom v Die Land- en Landboubank van SA
1971 2 SA 449
(NC)
at 815G-816B
.