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[2014] ZALCJHB 4
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Industrial And Commercial Workers Union of South Africa v Registrar: Labour Relations Department of Labour (J 802/09) [2014] ZALCJHB 4 (14 January 2014)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case
No.: J 802/09
Not
Reportable
DATE:
14 JANUARY 2014
In
the matter between:
INDUSTRIAL
AND COMMERCIAL WORKERS
UNION
OF SOUTH
AFRICA
........................................................................................
Applicant
And
REGISTRAR:
LABOUR RELATIONS
DEPARTMENT
OF
LABOUR
..............................................................................
Respondent
Date
of hearing: 14 December 2011
Date
of Judgment: 14 January 2014
JUDGMENT
MOTHIBI
AJ
1
A brief history of this matter is as follows:
1.1
In 2007 the Applicant applied for registration in terms of the LRA as
a trade union. The Respondent refused the application
in January
2008 and provided the Applicant with reasons for the refusal in March
2008 (the first application).
1.2
On 4 August 2008 a further application (the second application) was
submitted by the Applicant. Registration was again refused
and the
refusal was communicated to the Applicant on or about 9 January 2009.
1.3
On 3 February 2011 by order of my brother Justice Lagrange a ruling
was made referring the Applicant’s application for
registration
back to the Respondent in order to allow the Respondent to comply
with the provisions of sections 96(3), 96(4) and
96(5) of the LRA
(the court order).
1.4
The aforementioned court order was granted by this court as a result
of a settlement reached between the parties.
1.5
The essence of the order was that the Respondent was to give the
Applicant notice in terms of sections 96(4) and 96(5) of the
LRA.
2
This application is brought pursuant to the court order
3
Pursuant to that order, and on or about 28 October 2011, the
Respondent in complying with the court order and having regard to
the
provisions of sections 96(3), 96(4) and 96(5) of the LRA advised the
Applicant that it did not meet the requirements to be
registered as a
union and accordingly declined to register the Applicant as a trade
union.
4
The Applicant has not sought to exercise its rights in terms of the
LRA to appeal against the Respondent’s latter refusal
to
register it as a trade union but has rather sought to bring this
application to compel the Respondent to comply with the court
order.
5
The application is not competent because the Respondent, as is
apparent from its letter of 28 October 2011 has exercised its
discretion as required in terms of section 96 of the LRA and complied
with the court order of 3 February 2011. Of course, if the
Respondent had not complied with the court order it would have been
open for the Applicant to approach this court seeking a contempt
order against the Respondent. No such application has been brought.
6
There is accordingly no merit whatsoever in this application seeking
to compel the Respondent to comply with sections 96(3), 96(4)
and
96(5) of the LRA in circumstances where it has, on the facts, done
so. The Respondent has exercised its discretion not to
register the
Applicant as a trade union. What the Applicant is unhappy with is
the fact that it has again been refused registration
in terms of the
LRA.
7
The route chosen by the Applicant to challenge this latter refusal in
the form of this application is not competent in law nor
fact.
8
In the circumstances the Applicant’s application for an order
as sought in its notice of motion dated 5 September 2011 is
dismissed
with costs.
MOTHIBI
AJ
Acting
Judge of the Labour Court of South Africa
APPEARANCES
Applicant:
Adv. Molobedi instructed by Ntimane Attorneys
Respondent:
Adv. M.S. Baloyi instructed by Maponya Attorneys