About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2014
>>
[2014] ZALCJHB 115
|
|
NUMSA obo Thilivali v Fry's Metals (A division of Zimco Group) and Others (JR2817/2009) [2014] ZALCJHB 115; (2015) 36 ILJ 232 (LC) (27 March 2014)
REPUBLIC
OF SOUTH AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable
Case no: JR 2817/2009
In the matter between:
NUMSA obo NEDZAMBA
THILIVALI Applicant
and
FRY’S METALS (A
DIVISION OF ZIMCO GROUP) First
Respondent
METAL AND ENGINEERING
INDUSTRIES
BARGAINING
COUNCIL Second
Respondent
THEMBEKILE NSIBANYONI
N.O. Third
Respondent
Heard:
15 January 2014
Delivered:
27 March 2014
Summary:
Condonation – late filing of review application –
principles stated – no proper
explanation for a material delay
– condonation refused
Determination
of back pay and retrospectivity in the case of reinstatement –
principles applicable – exercise of a discretion
by arbitrator
– no indication that discretion not properly exercised
Peremption
– acquiescence in the award followed by review application much
later – peremption applicable – applicant
prohibited from
challenging award
JUDGMENT
SNYMAN,
AJ
Introduction
[1]
The applicant has brought an application to partially review and set
aside an award of an arbitrator of the MEIBC (the second
respondent),
which application has been brought in terms of Section 145 of the
LRA,
[1]
as read with Section 158(1)(g). The review application only relates
to the issue of a challenge by the applicant of the relief
afforded
to the individual applicant by the third respondent as arbitrator. In
a nutshell, the applicant contends that the third
respondent
committed a reviewable irregularity by limiting the back pay due to
be paid to the individual applicant after having
found in favour of
the individual applicant and having awarded him reinstatement,
instead of making it retrospective to the date
of the dismissal of
the individual applicant. The review application was opposed by the
first respondent. In addition, and because
the applicant’s
review application was brought late, the applicant also applied for
condonation for such late filing.
[2]
The first respondent had dismissed the individual
applicant on 21 October 2008, and this dismissal was then challenged
as an unfair
dismissal dispute to the MEIBC. The matter came before
the third respondent for arbitration on 23 June 2009. Pursuant to
these
arbitration proceedings, the third respondent then indeed
determined that the dismissal of the individual applicant by the
first
respondent was substantively and procedurally unfair. The third
respondent then determined that the individual applicant be afforded
relief in the form of retrospective reinstatement without loss of
benefits. The third respondent further determined that the back
pay
payable to the individual applicant pursuant to his award of
reinstatement be limited to three months’ salary, in the
sum of
R51 663.23. The individual applicant was directed to report for
duty at the first respondent on 20 July 2009 in terms
of the
reinstatement award. As stated above, it is the back pay
determination that forms the subject matter of the applicant’s
review application, which review application was only filed on 26
October 2009.
[3]
As also touched on above, and because the review application was
brought out of time, the issue of condonation also needs to
be
determined. Before specifically determining the issue of
condonation, I will first set out the backgrounds facts as relevant
to this review application, as these background facts are also
important in considering the issue of condonation as well.
Background facts
[4]
Because of the specific and limited scope of the review application,
it is not necessary for me to set out in detail all the
circumstances
relating to the dismissal of the individual applicant and analyse the
findings of the third respondent in this regard.
There was no cross
review filed by the first respondent and the first respondent
actually contended that it acquiesced in the award.
[5]
The first respondent conducts business in a working environment
containing lead. Because of this, the first respondent entered
into a
collective agreement with the applicant union (NUMSA) in terms of
which employees were regularly subjected to blood tests
to ascertain
the blood lead levels of the employees. Employees who were found to
have blood lead levels of 45ug/100 ml and more,
had their employment
terminated by way of an agreed separation agreement and accompanying
package. As stated, this process was
actually contained in a
collective agreement.
[6]
What happened following the conclusion of this collective agreement
is that the first respondent wanted to reduce the blood
lead level of
employees to which the separation agreement and package would apply
even further, to 40ug/100 ml. The union, however,
did not agree to
this.
[7]
The individual applicant’s blood lead level was found to be too
high following testing. The final test prior to the termination
of
employment of the individual applicant showed a blood lead level of
44ug/100 ml. This was above the 40ug/100 ml the first respondent
considered acceptable. For this reason alone, the employment of the
individual applicant was then terminated by the first respondent
by
way of the implementation of the separation agreement and package in
terms of the collective agreement.
[8]
The issue before the third respondent was a simple one. The union
contended that the collective agreement between it and the
first
respondent prescribed a blood lead level of 45ug/100 ml for the
separation agreement to apply, and it had never agreed to
any other
blood lead level. The first respondent contended that it tried to
consult with the union about this and when it could
not achieve
agreement to lower this blood lead level, it unilaterally implemented
the lower blood lead level requirement to 40ug/100
ml. Therefore, and
simply, if the applicable blood lead level was 40ug/100 ml, the first
respondent would have to accept that the
termination of the
individual applicant would be justified, but if the applicable blood
lead level was 45ug / 100 ml and higher,
it would not be justified.
[9]
The third respondent found that the original collective agreement
prescribing a blood lead level of 45ug/100 ml and higher was
still
valid and binding, and had never been changed. The third respondent
found that the unilateral implementation of the reduced
40ug/100 ml
level by the first respondent was of no consequence. The third
respondent concluded that because the blood lead level
of the
individual applicant was 44ug/100 ml, this was below 45ug/100ml and
his dismissal was thus not justified, and as such, unfair.
[10]
The third respondent then reinstated the individual applicant with
three months’ back pay and directed that he report
to work by
20 July 2009. It was common cause that this award was received by
NUMSA (the applicant union) on 14 July 2009. Significantly,
that
which the third respondent found in his award and directed must
happen, then actually came to pass. The first respondent accepted
the
award and complied with the same. The individual applicant reported
for work on 20 July 2009 and was reinstated in terms of
the award.
The individual applicant was also paid the prescribed back pay in
terms of the award of R51663.23. There was never any
indication from
either NUMSA or in the individual applicant that they were
dissatisfied with the award in any way or that it would
be
challenged, upon these events taking place. The fact is that the
arbitration award was given effect to on an unconditional and
unchallenged basis.
[11]
Then, and on 26 October 2009, being more than three months later, the
applicant simply launched a review application, challenging
only the
three months’ back pay part of the award and applying that this
part of the award be reviewed and set aside and
be substituted with
an award that the individual applicant be paid back pay until the
date of his dismissal on 21 October 2008.
It is this review
application that is now before me.
The relevant test
for review
[12]
I intend to make a few short comments about the appropriate test for
review in the current matter. In
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others,
[2]
Navsa,
AJ held that in the light of the constitutional requirement (in s 33
(1) of the Constitution) that everyone has the right
to
administrative action that is lawful, reasonable and procedurally
fair, and that ‘the reasonableness standard should now
suffuse
s 145 of the LRA’. The majority of the Constitutional Court set
the threshold test for the reasonableness of an award
or ruling as
the following: ‘Is the decision reached by the commissioner one
that a reasonable decision-maker could not reach?’
[3]
Following on, and in
CUSA
v Tao Ying Metal Industries and Others,
[4]
O'Regan J held:
‘
It is clear...that
a commissioner is obliged to apply his or her mind to the issues in a
case. Commissioners who do not do so are
not acting lawfully and/or
reasonably and their decisions will constitute a breach of the right
to administrative justice
.’
[13]
The
Sidumo
review
test was applied in
Fidelity
Cash Management Service v Commission for Conciliation, Mediation and
Arbitration and Others,
[5]
and the Court, as to what would be considered to be unreasonable for
the purposes of this test, said:
[6]
‘…
It seems
to me that… there can be no doubt now under
Sidumo
that
the reasonableness or otherwise of a commissioner's decision does not
depend - at least not solely - upon the reasons that
the commissioner
gives for the decision. In many cases the reasons which the
commissioner gives for his decision, finding or award
will play a
role in the subsequent assessment of whether or not such decision or
finding is one that a reasonable decision maker
could or could not
reach. However, other reasons upon which the commissioner did not
rely to support his or her decision or finding
but which can render
the decision reasonable or unreasonable can be taken into account.
This would clearly be the case where the
commissioner gives reasons
A, B and C in his or her award but, when one looks at the evidence
and other material that was legitimately
before him or her, one finds
that there were reasons D, E and F upon which he did not rely but
could have relied which are enough
to sustain the decision.’
[14]
In applying this review test, the SCA in
Herholdt
v Nedbank Ltd and Another
[7]
concluded as follows:
[8]
‘
In summary, the
position regarding the review of CCMA award is this: A review of a
CCMA award is permissible if the defect in the
proceedings fall
within one of the grounds in s 145(2)(a) of the LRA. For a defect in
the conduct of the proceedings to amount
to a gross irregularity as
contemplated by s 145(2)(a)(ii), the arbitrator must have
misconceived the nature of the inquiry or
arrived at an unreasonable
result. A result will only be unreasonable if it is one that a
reasonable arbitrator could not reach
on all the material that was
before the arbitrator. Material errors of fact, as well as the weight
and relevance to be attached
to the particular facts, are not in and
of themselves sufficient for an award to be set aside, but are only
of consequence if their
effect is to render the outcome
unreasonable.’
What
the Court was saying, simply put, is that if the arbitrator ignored
material evidence, and in considering this material evidence
together
with the case as a whole, the review court believes that the
arbitration award outcome cannot now be reasonably sustained
on any
basis, then the award would be reviewable.
[15] Following the
judgment of the SCA in
Herholdt
,
the Labour Appeal Court has now in
Gold
Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission
for Conciliation, Mediation and Arbitration and Others
[9]
again interpreted and applied the
Sidumo
review
test and held as follows:
[10]
‘
Sidumo
does
not postulate a test that requires a simple evaluation of the
evidence presented to the arbitrator and based on that evaluation,
a
determination of the reasonableness of the decision arrived at by the
arbitrator.… In other words, in a case such as the
present,
where a gross irregularity in the proceedings is alleged, the enquiry
is not confined to whether the arbitrator misconceived
the nature of
the proceedings, but extends to whether the result was unreasonable,
or put another way, whether the decision that
the arbitrator arrived
at is one that falls in a band of decisions a reasonable decision
maker could come to on the available material.’
The Court concluded:
[11]
‘
In short: A review
court must ascertain whether the arbitrator considered the principal
issue before him/her, evaluated the facts
presented at the hearing
and came to a conclusion which was reasonable to justify the decision
he or she arrived at.’
[16]
Therefore, t
he first step in a review enquiry is
to consider and determine if a material irregularity indeed exists. A
review court determines
whether such an irregularity exists by
considering the evidence before the arbitrator as a whole, as
gathered from the review record
and comparing this to the content of
the award and reasoning of the arbitrator as reflected in such award.
The review court must
also at this stage apply all the relevant
principles of law in order to determine what indeed constituted the
proper evidence that
the arbitrator, as a whole, would have had to
consider. If the review court in conducting this first step enquiry
should find that
no irregularity exists in the first instance, the
matter is at an end, no further determinations need to be made, and
the review
must fail.
[17]
Should the review court, however, conclude that a material
irregularity indeed exists, then the second step in the review test
follows, which is a determination as to whether if this irregularity
did not exist, this could reasonably lead to a different outcome
in
the arbitration proceedings. Put differently, could another
reasonable decision-maker, in conducting the arbitration and arriving
at a determination, in the absence of the irregularity and
considering the evidence and issues as a whole, still reasonably
arrive
at the same outcome? The review court, in essence, at the
second stage of the review test, takes the proper evidence as a
whole,
as ascertained from the review record, considers the relevant
legal principles and decides whether the outcome that the arbitrator
arrived at could nonetheless reasonably be arrived at by another
reasonable decision-maker, even if it is for different reasons.
The
end result always has to be an unreasonable outcome flowing from an
irregularity, for a review to succeed.
The issue of
condonation
[18]
Dealing then with the substance of the applicant’s application,
the first issue to determine is condonation. The applicant’s
condonation application was very much opposed and, in my view,
justifiably so, for the reasons as will be set out hereunder. In
terms of the provisions of Section 145(1) of the LRA, an applicant
for review has six weeks from the date upon which such applicant
became aware of an arbitration award to serve and file a review
application.
[19]
The applicant received the arbitration award on 14 July 2009, on its
own version. That means that the applicant had to serve
and file its
review application on or before 26 August 2009. The review
application was, however, only served and filed on 26 October
2009.
The review application is thus some two months’ out of time. A
delay of two months, in the context of review applications,
is a
material delay, which in itself mitigates against the granting of
condonation.
[12]
In
fact and in
Academic
and Professional Staff Association v Pretorius No and Others,
[13]
even a three weeks’ delay was found to be excessive when it
comes to review applications. It is thus my view that a two month
delay in a review application is certainly material and requires, as
will be discussed hereunder, an excellent explanation for
the delay.
[20]
The general principles applicable to condonation applications were
set out in the case of
Melane
v Santam Insurance Co Ltd
[14]
where it was said
:
‘
In deciding
whether sufficient cause has been shown, the basic principle is that
the Court has a discretion, to be exercised judicially
upon a
consideration of all the facts, and in essence it is a matter of
fairness to both sides. Among the facts usually relevant
are the
degree of lateness, the explanation therefor, the prospects of
success and the importance of the case. Ordinarily these
facts are
interrelated, they are not individually decisive, save of course that
if there are no prospects of success there would
be no point in
granting condonation.’
[21]
In
specifically dealing with an application for condonation for the late
filing of a review application, the Labour Appeal Court
in
A
Hardrodt
(SA) (Pty) Ltd v Behardien and Others
[15]
referred
with approval to the judgment in
Queenstown
Fuel Distributors CC v Labuschagne NO and Others
[16]
and
said:
‘
The
principles laid down in that case included, firstly that there must
be good cause for condonation in the sense that the reasons
tendered
for the delay had to be convincing. In other words the excuse for
non-compliance with the six-week time period had to
be compelling.
Secondly, the court held that the prospects of success of the
appellant in the proceedings would need to be strong.
The court
qualified this by stipulating that the exclusion of the appellant's
case had to be very serious, ie of the kind that
resulted in a
miscarriage of justice.’
[22]
What is clear from the judgment in
Hardrodt
is that
general principles applicable to condonation applications are even
more stringently applied where it comes to a condonation
application
for the late filing of a review application. In review condonation
applications, the explanation that needs to be submitted
must be
compelling and the prospects of success need to be strong. Where it
comes to the issue of prejudice, the applicant in fact
has to show
that a miscarriage of justice will occur if the applicant’s
case is not heard. The reason for these more stringent
requirements
is that review applications occur after the parties have already been
heard, presented their respective cases and
a finding has been made.
Under such circumstances, considerations of justice, fairness and
expedition require that challenges of
such findings must not be
delayed and must be completed as soon as possible.
[23] The Court, in
Academic
and Professional Staff Association,
[17]
said the following, also in the context of a matter concerning a
condonation application for the late filing of a review application:
‘
The
factors which the court takes into consideration in assessing whether
or not to grant condonation are: (a) the degree of lateness
or
non-compliance with the prescribed time frame; (b) the explanation
for the lateness or the failure to comply with time frame;
(c)
prospects of success or bona fide defence in the main case; (d) the
importance of the case; (e) the respondent's interest in
the finality
of the judgment; (f) the convenience of the court; and (g) avoidance
of unnecessary delay in the administration of
justice. See
Foster
v Stewart Scott Inc
(1997)
18 ILJ 367 (LAC)
.
It
is trite law that these factors are not individually decisive but are
interrelated and must be weighed against each other. In
weighing
these factors for instance, a good explanation for the lateness may
assist the applicant in compensating for weak prospects
of success.
Similarly, strong prospects of success may compensate the inadequate
explanation and long delay.’
[24] As to how the
explanation must be presented by an applicant in an application for
condonation for the late filing of a review
application,
the
Court in
Independent
Municipal and Allied Trade Union on behalf of Zungu v SA Local
Government Bargaining Council and Others
[18]
said the following:
‘
In explaining the
reason for the delay it is necessary for the party seeking
condonation to fully explain the reason for the delay
in order for
the court to be in a proper position to assess whether or not the
explanation is a good one. This in my view requires
an explanation
which covers the full length of the delay. The mere listing of
significant events which took place during the period
in question
without an explanation for the time that lapsed between these events
does not place a court in a position properly
to assess the
explanation for the delay. This amounts to nothing more than a
recordal of the dates relevant to the processing of
a dispute or
application, as the case may be.’
[25] It must also always
be considered that the applicant for condonation actually bears the
onus to prove good cause for condonation
to be granted in terms of
the principles set out above.
[19]
There is, however, an additional consideration which applies in
employment disputes in determining whether an applicant for
condonation
has discharged this onus. This is the fundamental
requirement of expedition. The Constitutional Court has, as a matter
of fundamental
principle, confirmed that all employment law disputes
must be expeditiously dealt with
[20]
and any determination of the issue of good cause must always be
conducted against the back drop of this fundamental principle in
employment law.
[26] Now that I have set
out the applicable principles in deciding whether the applicant has
shown good cause for the granting of
condonation, I firstly deal with
the explanation provided by the applicant. On the face of it, the
explanation is precisely just
a list of events as criticised by the
Court in
Zungu
[21]
as an explanation, and as such is in itself deficient. However, and
even in considering this chronology, the following is apparent:
26.1
Despite having received the award on 14 July 2009, it was only sent
to NUMSA head office on 3 August 2009,
some three weeks later, and
after it had already been complied with and given effect to. This is
no explanation why this took so
long and why nothing had been done
earlier;
26.2
Virtually the entire months of August and September 2009 was
explained on the simple basis that the union
official attending to
the matter was too busy with other matters, including preparing for
other arbitrations and conferences and
Labour Court cases. For this
entire period, there is not one shred of any indication that the
matter in this instance was dealt
with or received any attention of
any kind whatsoever;
26.3
The same pattern of conduct then persisted in October 2009. The
review application in another matter (Crabtree)
was dealt with and
consultations were held with employees to oppose a review brought by
Rustenburg Platinum Mines. In fact, the
matter
in casu
was
first dealt with on 22 October 2009 and this was then this matter was
first considered on the applicant’s own version;
26.4
What is clear from the explanation actually provided (and to call it
an explanation is generous), is that
this matter was not dealt with
in any way whatsoever, from the time when the award was sent to NUMSA
at the beginning of August
2009, and until 22 October 2009 when it
received its very first attention.
[27] From the above
explanation or better described a complete lack of it, it is clear
that the applicant has provided no explanation
at all for the entire
delay in this matter. Added to this, there is not a shred of any
explanation as to what the individual applicant
himself did to follow
up on the matter after purportedly asking the union at the beginning
of August 2009 to review the award.
This kind of conduct in itself is
grossly remiss and negligent. In this regard, the following
dictum
from the often quoted judgment in
Saloojee
and Another NNO v Minister of Community Development
[22]
is
particularly apt where it was held as follows:
‘
If,
as here, the stage is reached where it must become obvious also to
layman that there is a protracted delay, he cannot sit passively
by,
without so much as directing any reminder or enquiry to his attorney
and expect to be exonerated of all blame; and if, as here,
the
explanation offered to this court is patently insufficient, he cannot
be heard to claim that insufficiency should be overlooked
merely
because he has left the matter entirely in the hands of his attorney.
If he realises upon the aptitude or remissness of
his own attorney,
he should at least explain that none of it is to be imputed to
himself. That has not been done in this case.’
[28] Considering the
explanation the applicant sought to offer, the insurmountable problem
the applicant has, in my view, is the
fact that the Court has on
numerous occasions made it clear that an individual applicant can
simply not sit by without regularly
following up on its litigation
and the progress therein, even after tasking a representative to deal
with the matter.
[23]
Specifically, the Court in
Superb
Meat Supplies CC v Maritz
[24]
held
as follows:
‘
The
case of appellant is firmly grounded in the delinquency of Majola and
that is manifest and self-evident... I also am of the
judgement that
the appellant through the agency of its member Schreiber was
negligent in not monitoring progress of its case from
the time of the
service of the claim in August 1999 to the set down for the trial on
12 March 2001, a period of nearly 18 months.
The appellant appointed
new attorneys and the file was available to them and would have
indicated what contact took place between
Majola and Schreiber during
that period. The court has not been informed of any communication and
it can be inferred that the appellant
took no active interest in its
own litigation, a further reason to conclude that it was negligent.
As I have indicated
Trengove AJA held in the
De Wet
case that disinterest and
failure to keep in touch with an attorney barred relief. Attorneys
cannot be blamed and the appellants
- as in this matter - were the
authors of their own problems….’
The
Court concluded:
‘
In
this court and the Supreme Court of Appeal there have been frequently
repeated judicial warnings that there is a limit beyond
which a
litigant cannot escape the results of his attorney's lack of
diligence or the insufficiency of the explanation tendered.
It has
never been the law that invariably a litigant will be excused if the
blame lies with the attorney. To hold otherwise might
have a
disastrous effect upon the observance of the rules of this court and
set a dangerous precedent. It would invite or encourage
laxity on the
part of practitioners. The courts have emphasized that the attorney,
after all, is the representative whom the litigant
has chosen for
himself, and there is little reason why, in regard to condonation of
a failure to comply with a rule of court, the
litigant should be
absolved from the normal consequences of such a relationship, no
matter what the circumstances of the failure
are.’
In my view, the above
dictum
would find direct application in the current matter and
the individual applicant must stand or fall by the conduct of NUMSA
as
his chosen representative.
[29]
In effect, the basis of the explanation is to place all blame on the
fact that the union official tasked with this matter was
too busy
with all kinds of other attendances to get to this matter and on this
basis the individual applicant should be exonerated.
The fact that
this kind of explanation is simply not acceptable
per
se
is already dealt with above but this matter has the added nuance that
there is a complete absence of any explanation or even affidavit
from
the individual applicant himself as to what he himself did to pursue
his own matter or follow up with his union. The judgment
in
Zungu
[25]
is, in my view, particularly apposite and also concerned a case
where
a
trade union failed to process a review on behalf of its member
timeously. The Court dealt specifically with the issue of there
being
no affidavit or explanation before the Court by the individual review
applicant (union member) himself and said:
[26]
‘
It
appears that Mr Zungu was content with the applicant processing this
matter. After his dismissal he returned to his homestead.
There was
an onus on him to enquire from his union what the review application
entailed and what was required of him. It does not
appear that he
kept in contact with the applicant about his case….
’
The
Court concluded:
[27]
‘
Trade
unions exist for the very reason of looking after the interests of
their members. When employees join a trade union they entrust
responsibility for issues relating to their employment and the
termination thereof to the trade union. In the circumstances of
this
relationship I believe that there is an even greater limit on the
extent to which trade union members can escape the results
of their
trade union's lack of diligence. Trade unions have a vested interest
in the processing and outcome of disputes referred
on behalf of their
members. Their very existence is about acting in the interests of
their members. Members for their part are
happy to entrust their
labour relations affairs to their union. This case is a good example
of where the trade union has been involved
with the dispute from the
inception. It represented Mr Zungu at the arbitration and as the
applicant in this matter has deposed
to the affidavits in support
thereof…. In these circumstances a member such as Mr Zungu
would have to put up good reasons
as to why he should be allowed to
escape the consequences of the union's lack of diligence in launching
the review application
timeously. In this case there is no
explanation at all before this court from Mr Zungu that would enable
it to come to his assistance.
The condonation application must
according fail.
’
I fully agree with the
above reasoning, which I find directly applicable
in casu
.
[30]
Something must be said about the substance of the applicant’s
explanation, even as it stands. As stated, what the applicant
has
done is to provide a blow by blow account of how busy the union
official to whom this matter was handed to deal with, was.
Details
are given of all the other matters he dealt with which seemed to be
more important than the current matter. In fact, and
at its core, the
explanation simply is that this matter was not as important as all
the other matters and it just had to wait until
the very busy union
official could get to it. To call this explanation unacceptable is an
understatement. It is in fact a kind
of explanation which is not
exonerating but is actually an indictment. There can be no
justification at all to submit such a kind
of explanation, especially
for a trade union of the stature, size and experience of NUMSA, who
in effect tells one member that
his matter is just not as important
as all the other matters it is attending to on behalf of all its
other members. Although dealing
with an attorney, a similar kind of
explanation came before the Court in
SA
Revenue Services v Ntshintshi and Others
[28]
and the Court said:
‘
Seymour's
actions — or rather his inaction — border on the
unethical. He failed to provide a service to his client,
instead
leaving it to a paralegal — who proved to be incompetent —
to draft and deliver affidavits on behalf of
his client. Instead
of attending to his client's needs — for which he was being
paid by her trade union — he attended
a soccer tournament. That
is simply inexcusable….
This
court has held on numerous occasions that there is a limit beyond
which a litigant cannot escape the dilatoriness of her
chosen representatives...
’
The above reasoning,
surely, can equally apply to the explanation submitted in this
matter.
[31] As far as it
concerns the issue of the situation of NUMSA as a long standing and
experienced union, I need only refer to the
following
dictum
from the judgment in
National
Education Health and Allied Workers Union and Others v Vanderbijlpark
Society for the Aged,
[29]
which I fully agree with:
‘
The
LRA has been in existence for more than 15 years, and the time-limits
governing referrals have not changed in that time. It
is reasonable
to expect that trade unions ought to be well aware of the need to act
timeously in the interests of their members
and to adapt their
internal procedures to accommodate those time-limits, not vice versa.
The scale of an organization cannot serve
as a justification for
delays. On the contrary, it is reasonable to expect that larger
organizations, be they trade unions or businesses,
ought to be able
to see to it that they are organized to deal with disputes of this
nature in a systematic manner to ensure that
they do not fall foul of
the time-limits in the LRA. Where handling such disputes is a core
function of the organization, this
should go without saying.
’
[32]
In the end, and considering that NUMSA, as stated, is a trade union,
the fact remains that what it does, its members do. In
effect, this
means that the individual applicant is even more bound, for the want
of a better description, to the conduct of NUMSA
as his chosen union.
In
Seatlolo
and Others v Entertainment Logistics Service (A Division of Gallo
Africa Ltd),
[30]
the Court said:
‘
Indeed a trade
union is not an independent legal representative acting as an agent
to the detriment of a client. It is a collective
embodiment of its
members and is akin to a curator at litem in civil proceedings - in
other words, it is 'the institutional embodiment
of the several
members involved in the dispute'…. The trade union is its
members and thus the applicants cannot escape the
consequences of
their decision to be members of SACCAWU….’
[33] Therefore, it is my
view that the explanation submitted is one that confirms that NUMSA
and with it the individual applicant
were grossly remiss and
negligent, and thus the consequence of this has to be that as set out
in
National
Union Of Metalworkers of SA on behalf of Nkuna and Others v Wilson
Drills-Bore (Pty) Ltd t/a A and G Electrical,
[31]
where
the Court said the following:
‘
In
Saraiva Construction (Pty) Ltd v
Zululand Electrical and Engineering Wholesalers (Pty) Ltd
1975 (1) SA 612
(D), the court held that good cause is shown by the
applicant giving an explanation that shows how and why the default
occurred.
It was further held in this case that the court could
decline the granting of condonation if it appears that the default
was wilful
or was due to gross negligence on the part of the
applicant. In fact, the court could on this ground alone decline to
grant an
indulgence to the applicant.’
[34] The manner in which
the applicant deals with the issue of prejudice also leaves much to
be desired. The applicant has to show
the potential of a miscarriage
of justice, where it comes to the issue of prejudice. Instead, all
the applicant says is that the
nine months unpaid period will lead to
the individual applicant “seriously suffering” and that
he has lost a “vast
amount” of household appliances and
is on the verge of losing his house. These statements are not
confirmed by any confirmatory
affidavit by the individual applicant
himself. The manner in which prejudice is dealt with is in my view
nothing more than emotive
and unsubstantiated contentions and what is
ignored is that the award has actually been complied with and the
individual applicant
was reinstated.
[35]
In the end, the applicant has thus provided no explanation at all for
what is a material delay. The applicant has not demonstrated
proper
prejudice in support of its application. This should be the end of
the matter for the applicant without even considering
the requirement
of prospects of success. It was said in
Mziya
v Putco Ltd
[32]
that ‘there is a further principle which is applied and that is
that without a reasonable and acceptable explanation for
the delay,
the prospects of success are immaterial’
.
Also in
NUM
v Council for Mineral Technology,
[33]
it was said that ‘there is a further principle which is applied
and that is that without a reasonable and acceptable explanation
for
the delay, the prospects of success are immaterial’
.
Finally and in
National
Education Health and Allied Workers Union on behalf of Mofokeng and
Others v Charlotte Theron Children's Home,
[34]
the Court held that ‘this court has previously confirmed the
principle that without a reasonable and acceptable explanation
for a
delay the prospects of success are immaterial’.
[36] In my view, the
approach of the applicant in the condonation application is
that
condonation was there for the asking. This is simply not so. In this
regard, I can do little better than to refer what was
said in
Seatlolo
[35]
where the Court held:
‘
It is trite law
that condonation should only be granted where the legal requirements
have been met and is not a default option.
It remains an indulgence
granted by a court exercising its discretion whilst being cognizant
of the criticism emanating from the
Constitutional Court and the SCA
and bearing in mind the primary objective of the expeditious
resolution of disputes articulated
in the Act.’
[37]
For the above reasons alone, it is my view that the applicant’s
condonation application must fail and, consequently,
its review
application as well, without even having to consider the prospects of
success in its review application. However, and
for the sake of
completeness, I will nonetheless shortly deal with the merits of the
applicant’s review application.
The
issue of peremption
[38]
Even if the merits of the applicant’s review application are
considered, I am of the view that the applicant’s
review
application must fail for the simple reason of the application of the
principle of peremption.
[39]
As regards the issue of peremption, the following facts are
pertinent: (1) The first respondent never challenged the arbitration
award; (2) the arbitration award stipulated a date for compliance,
being 20 July 2009, and this was adhered to; (3) the individual
applicant reported for work on 20 July 2009, and was reinstated and
the back pay awarded in the award paid to him, without reservation
or
challenge at the time; (4) it was never indicated prior to, at the
time or immediately after the individual applicant reporting
for work
and being paid his back pay that he was in any way dissatisfied with
the award; (5) the documentary evidence shows that
NUMSA expressed it
dissatisfaction with the award, internally, in August 2009, but never
sought to engage the first respondent
on this, or record any
reservation of rights relating to potential challenge of the award to
the first respondent; and (6) the
status quo, so to speak, with
regard to compliance with the award, endured for more than three
months without any contradiction
until the review application was
simply finally filed.
[40]
The principle relating to preemption was defined in
Dabner
v SA Railways and Harbours
[36]
as
thus:
‘
The
Rule with regard to peremption is well settled and has been
enunciated on several occasions by this Court. If the conduct of
an
unsuccessful litigant is such as to point indubitably and necessarily
to the conclusion that he does not intend to attack the
judgment,
then he is held to have acquiesced to it.
But the conduct
relied upon must be unequivocal and must be inconsistent with any
intention to appeal. And the onus of establishing
that position is
upon the party alleging it.
'
[41]
In the context of employment law, the former LAC also specifically
dealt with preemption in the judgment of
National
Union of Metalworkers of SA and Others v Fast Freeze
[37]
.
As to the concept of peremption, Mullins J said the following:
[38]
‘
If
a party to a judgment acquiesces therein, either expressly, or by
some unequivocal act wholly inconsistent with an intention
to contest
it, his right of appeal is said to be perempted, ie he cannot
thereafter change his mind and note an appeal. Peremption
is an
example of the well-known principle that one may not approbate and
reprobate, or, to use colloquial expressions, blow hot
or cold, or
have one's cake and eat it. Peremption also includes elements of the
principles of waiver and estoppel
.’
The
Court then analysed all the authorities relating to this issue and
held as follows as to the applicable principles that must
be
considered in order to determine if peremption exists:
[39]
‘
From
the above authorities it seems to me that the relevant principles can
be summarized as follows:
(a)
Where a right to appeal exists, the party
desiring to appeal loses the right to appeal where he has acquiesced
in the judgment.
(b)
Such acquiescence may be express, or
implied from the conduct of such party.
(c)
Acquiescence by conduct requires an overt
act by such party, ie conduct which conveys outwardly to the other
party his attitude
towards the judgment.
(d)
The overt act must be consistent with an
intention to abide by the judgment, and inconsistent with an
intention to appeal against
such judgment.
(e)
The test is objective. It is the outward
manifestation of such party's attitude in relation to the judgment
that must be looked
at, not his subjective state of mind or
intention.
(f)
Where there is such overt conduct, a mental
reservation or resolve not to acquiesce in the judgment will not
avail the party who
by his conduct evinces an intention to abide by
the judgment.
(g)
The state of mind of the party mentally
reserving his right to appeal must yield to his conduct which plainly
contradicts such an
intention.
(h)
The court must be satisfied that the
conduct in question, when fairly construed, necessarily leads to the
conclusion that the party
intends abiding by the judgment.
(i)
If more than one inference may fairly be
drawn from the conduct in question, this will not be sufficient to
prove renunciation.
The conduct must be unequivocal.
(j)
The onus of proving that a party has
renounced his right to appeal rests on the party alleging such
renunciation.
(k)
Voluntary payment, or acceptance of
payment, as the case may be, in terms of a judgment, will usually be
sufficient to satisfy a
court that the party has acquiesced in the
judgment
.’
Further
in
Fast
Freeze
,
the Court then applied these principles to the facts of that matter.
The Court concluded as follows, which I consider to have
several
material comparisons to the matter before me
in
casu
:
[40]
‘…
.
Appellants knew their rights. They knew they had the right to appeal.
This is common cause on the papers. They knew they had the
right to
receive payment in terms of the judgment, and they did so receive
payment. What they did not know, or may not have realized,
was the
legal effect of exercising one of these two options. But that is the
situation that arises in every case where it is alleged
that a right
of appeal has been renounced.
’
[42] There have since
been several instances of the application of the principles set out
in
Fast
Freeze
by the Labour Court. I intend to deal with those judgments that can
serve as an appropriate basis of comparison to the matter
in
casu
.
Firstly, and in
National
Education Health and Allied Workers Union on behalf of Tumana v
Commission for Conciliation, Mediation and Arbitration
and
Others,
[41]
the Court said:
‘
In this case the
applicant expressed its intention to challenge the arbitration award
by launching a review application. However,
three days after an order
dismissing the applicant's claim owing to the delay in its
prosecution was granted, Maseti addressed
a letter to Kirchmann
telling him to instruct his client to comply with the arbitration
award by paying the applicant the amount
of R95,401 that the third
respondent was ordered to pay by the second respondent. In the letter
it is unequivocally stated that
the matter was finalized by the
Labour Court on 3 March 2011. By accepting that the matter was
finalized on 3 March 2011 the applicant
expressly communicated an
intention not to contest the decision of 3 March 2011. Having
accepted that the matter was finalized
the applicant is precluded
from changing its mind and seeking to note an appeal. When a matter
is finalized it comes to an end
and may therefore not be pursued.’
[43] In dealing with an
application for a cross review, the Court in
Jusayo
v Mudau NO and Others
[42]
said the following in dismissing the cross review:
‘…
. Its
indicated and unreserved intention to comply with the order against
it to pay the calculated amount of compensation to the
applicant in
compliance with the first respondent's order, precluded absolutely
its right subsequently to contest the award in
terms of which that
order was made.’
[44] The Court in
Balasana
v Motor Bargaining Council and Others
[43]
specifically dealt with peremption in the case of a review
application. The Court accepted that the principle applied to review
applications and said:
[44]
‘
As a general rule
a party that perempts the arbitration award would not be entitled
subsequently to challenge that arbitration award.
The basic
requirement, however, to sustain a claim of peremption entails having
to show that the acceptance of the outcome of the
arbitration award
expressly or by conduct was unequivocal.’
The Court in
Balasana
concluded that peremption was not shown to exist in that matter. It
is, however, important to consider the factual considerations
in the
judgment of
Balasana
where the Court held as follows,
[45]
which I consider as an appropriate comparison to the contrary, so to
speak, in respect of the matter
in
casu
:
‘
As
indicated earlier in this judgment the arbitration award was issued
on 5 June 2009. The payment in compliance with the terms
of the
arbitration award seems to have been made on 10 June 2009. The review
application was filed on 13 July 2009, which was within
the time
frame prescribed in terms of s 145 of the LRA. There is no evidence
as to when after accepting the payment from the respondent
the
applicant approached Legal Aid SA for assistance to challenge the
arbitration award. However, what is clear is that it must
have been
some time before 13 July 2009. It has also to be noted that the
amount was not given to the applicant in hand but deposited
into his
bank account. There is also no evidence that he acknowledged to the
respondent receipt of the money. There is therefore
no evidence of
the subjective state of mind of the applicant at the time he decided
to accept the money which evidence could have
assisted me as to the
factors in determining whether it could be said that the applicant
had objectively elected to comply with
the arbitration award.
Thus,
regard being had to the time period within which the applicant filed
his review application and the earlier period of consultation
with
his attorney to have the award reviewed, it cannot be said that the
objective facts support the view that he accepted the
money
unconditionally and without reservation of his right to challenge the
arbitration award on review.
’
[45]
The judgment in
Venture
Otto SA (Pty) Ltd v Metal and Engineering Industries Bargaining
Council and Others
[46]
also dealt with peremption in the case of a review application and
said the following in finding that there was indeed peremption
established:
‘
In casu
,
and given the applicant's undertaking to comply with the second
respondent's award, the indulgence which it subsequently sought,
the
third respondent's positive response thereto and the coalescence of
it all by way of the conclusion of the written agreement,
proclaims
in my judgment that the threshold has been satisfied. The
circumstances which I have outlined point 'indubitably and
necessarily' to the conclusion that the applicant wholly accepted the
second respondent's award. In short, the facts unequivocally
proclaim
that the applicant had fully acquiesced in the award without the
slightest intention of impeaching it. What it thereafter
did was to
repudiate an agreement which was seriously and deliberately entered
into. And it only did so when the applicant's managing
director had
some misgivings and thereafter sought legal advice. By then, it was
all too late.’
[46]
Based on all of the above legal principles, and the pertinent factual
context referred to above, I have little hesitation in
concluding
that the required threshold in establishing the existence of
peremption has been satisfied
in casu
. The fact is that the
applicant party, which includes a well established and experienced
trade union, knew what its rights were.
Whatever its subjective
intentions may have been, this is simply irrelevant as these
intentions were never conveyed to the first
respondent until long
after the award had unconditionally been complied with. Without any
challenge or reservation of rights being
recorded beforehand, the
individual applicant accepted reinstatement and the compensation
payment in terms of the award. As stated,
the first respondent fully
complied with the award without condition. All of this is followed by
a review application that is not
even brought in time, but some two
months after being due. Accordingly, the challenge to the award by
the applicant came too late.
The award had been acquiesced in. The
benefits in terms of the award had been accepted without reservation.
There is simply nothing
in the conduct of the applicant union and the
individual applicant which could feasibly indicate any other
intention than acquiescing
in the award.
[47]
Accordingly, I conclude that on the basis of the application of the
principle of peremption, the applicant’s review application
must fail and stands to be dismissed.
The
merits of the review
[48]
Finally and for the same of completeness, I will make some short
comments about the merits of the applicant’s review
application, since it really concerns a crisp legal point. This point
is simply whether the determination by the third respondent
to limit
the back pay to three months was a reasonable outcome.
[49] Now it is trite that
since the judgment of the Constitutional Court in
Equity
Aviation Services (Pty) Ltd v Commission for Conciliation, Mediation
and Arbitration and Others,
[47]
and where it comes to the retrospectivity of any award of
reinstatement and/or any back relating to such an award of
reinstatement,
the arbitrator or the Judge hearing the matter
exercises a discretion in terms of Section 193(1). The Court in
Equity
Aviation
said:
[48]
‘
The ordinary
meaning of the word "reinstate" is to put the employee back
into the same job or position he or she occupied
before the
dismissal, on the same terms and conditions. Reinstatement is the
primary statutory remedy in unfair dismissal disputes.
It is aimed at
placing an employee in the position he or she would have been but for
the unfair dismissal. It safeguards workers'
employment by restoring
the employment contract. Differently put, if employees are reinstated
they resume employment on the same
terms and conditions that
prevailed at the time of their dismissal. As the language of s
193(1)
(a)
indicates,
the extent of retrospectivity is
dependent upon the exercise of a discretion by the court or
arbitrator
. The only limitation in this regard is that the
reinstatement cannot be fixed at a date earlier than the actual date
of the dismissal.’
(emphasis added)
As to the exercise of
this discretion, the Court said:
[49]
‘
It is trite law
that the power to grant a remedy in s 193 is by its nature
discretionary and that the discretion must be exercised
judicially by
a court that enjoys that unfettered discretion....’
[50] Following on and in
Billiton
Aluminium SA Ltd t/a Hillside Aluminium v Khanyile and Others,
[50]
the Constitutional Court dealt with the judgment in
Equity
Aviation
and held:
[51]
‘…
. In
discussing the discretion that a commissioner or court has to
exercise in terms of s 193, Nkabinde J stated that the period
between
the dismissal and the trial as well as the fact that the dismissed
employee was without an income during the period of
dismissal should
be taken into consideration in such a manner that 'an employer is not
unjustly burdened if retrospective reinstatement
is ordered or
awarded'.’
The Court concluded:
[52]
‘
The remedies
awarded in terms of the provisions of s 193 of the LRA must be made
in accordance with the approach set out in
Equity Aviation
.
That approach is based on underlying fairness to both employee and
employer. It would introduce unwanted and unnecessary rigidity
to
saddle an enquiry into fairness with notions of a legal onus.’
[52] The actual exercise
of such a discretion in limiting the retrospectivity of reinstatement
and the award of back pay does feature
in several judgments of the
Labour Appeal Court and the Labour Court. The LAC in
Mediterranean
Textile Mills (Pty) Ltd v SA Clothing and Textile Workers Union and
Others
[53]
dealt with the issue and said:
‘
However, the only
issue for critical consideration is the extent of retrospectivity of
the employees' reinstatement. This is a matter
in respect of which I
am not convinced that the Labour Court gave due and sufficient regard
to, particularly given, amongst others,
the above-quoted observation
made by the Labour Court itself on the obvious and objective dire
financial straits of the appellant
currently, as well as at the time
of the dismissals. On this basis, therefore, the pronouncement by the
Labour Court (at para 57)
that '[w]hatever challenges come the way of
the respondent, it should be able to comply with the order of
reinstatement which the
applicants have shown an entitlement to' is,
with respect, neither consistent with the court's own factual finding
aforesaid on
the appellant's financial capacity nor the principle
that 'fairness ought to be assessed objectively on the facts of each
case'.
In
National Union of Metalworkers of SA v Vetsak
Co-operative Ltd and Others
, the Appellate Division (as it was
then known) stated as follows:
“
Fairness
comprehends that regard must be had not only to the position and
interests of the worker, but also those of the employer,
in order to
make a balanced and equitable assessment. In judging fairness, a
court applies a moral or value judgment to established
facts and
circumstances
(NUM v Free
State Cons
at 446I). And in
doing so it must have due and proper regard to the objectives sought
to be achieved by the Act.”’
The Court in
Mediterranean
Textile Mills
in the end, and after considering the conduct of the employees as
well, concluded that the retrospective reinstatement order issued
by
the Labour Court entitling the employees to full backpay had the
effect of 'unjustly financially burdening' the employer party
in that
case, and was not objectively fair on the facts. The Court limited
the back pay to 12 months, which the Court considered
“just and
equitable in the circumstances.”
[54]
[53] I refer in closing
to the judgment in
National
Union of Mineworkers and Others v Black Mountain Mining (Pty) Ltd
[55]
where back pay was limited to 6 months, and
Lithotech
Manufacturing Cape - A Division of Bidpaper Plus (Pty) Ltd v
Statutory Council, Printing, Newspaper and Packaging Industries
and
Others
[56]
where back pay was limited to 1 month, as illustration how the
relevant discretion was exercised.
[54] Therefore, and as
the determination of retrospectivity and back pay in respect of any
award of reinstatement made in terms
of section 193(1) entails the
exercise of a discretion by the arbitrator, it had to be accepted
that a review Court should not
too readily interfere with such
determinations made by arbitrators, pursuant to exercising such a
discretion. In
Kemp
t/a Centralmed v Rawlins,
[57]
the Court dealt with the exercise of a discretion in deciding the
issue of the quantum of compensation awarded, which in my view
would
equally apply to the issue of deciding the extent of restrospectivity
and back pay. The Court in
Kemp
held that in principle, the issue of compensation can be decided by
the Court in its own judgment, which principle would also clearly
apply to an arbitrator deciding on compensation. The Court in
Kemp
further said, which, as I have said, would equally apply to the issue
of the exercise of the discretion relating to the retrospectivity
of
reinstatement and back pay:
[58]
‘
From
the above it is clear that… its decision can only be
interfered with by a court of appeal on very limited grounds such
as
where the tribunal or court-
(a)
did not exercise a judicial discretion; or
(b)
exercised its discretion capriciously; or
(c)
exercised its discretion upon a wrong
principle; or
(d)
has not brought its unbiased judgment to
bear on the question; or
(e)
has not acted for substantial reason (see
Ex parte Neethling and others
1951 (4) SA 331
(A) at 335); or
(f)
has misconducted itself on the facts
(Constitutional Court judgment in the
National
Coalition for Gay and Lesbian Equality
case at para 11); or
(g)
reached a decision in which the result
could not reasonably have been made by a court properly directing
itself to all the relevant
facts and principles (Constitutional Court
judgment in
National Coalition for Gay
and Lesbian Equality
at para 11).’
I
do not consider the third respondent’s determination of the
restrospectivity of reinstatement and back pay to fall foul
of any of
the above considerations so as to justify the interference with the
exercise of such discretion.
[55]
Accordingly, the applicant has not satisfied any of the requirements
in order to justify this Court’s interference with
the
discretion exercised by the third respondent
in casu
, insofar
as it concerns the issue of relief. In fact, the approach of the
applicant seems to be that the arbitrator had no alternative
other
than to make the reinstatement and back pay retrospective to date of
dismissal of the individual applicant. As is clearly
set out above,
this is simply not the case, and the third respondent always had a
discretion. The third respondent was clearly
alive to the fact that
he had such a discretion and in exercising this discretion considered
the fact that there was no
mala fides
or reprehensible conduct
on the part of the first respondent, even when the dismissal was
found to be unfair. The third respondent
understood and accepted that
in truth the matter only concerned the issue of the application of a
collective agreement, and the
parties’ interpretation as to its
application and the dismissal of the individual applicant was unfair
for this reason alone.
It would in fact be appropriate to describe
the first respondent’s conduct as
bona fide
but
unfortunately wrong. It would be an entirely reasonable outcome for
the third respondent to have limited the back pay in such
a case, on
the basis of what is just and equitable to both parties, which is
exactly what the third respondent did. Therefore,
and in my view, the
applicant’s review application has no prospects of success on
the merits thereof, even should this be
considered. For this reason
as well, the condonation application must fail and with it, the
review application.
Conclusion
[56] Based on what has
been set out above, I conclude that the applicant’s condonation
application cannot succeed. The applicant
has failed to demonstrate
good cause as required by law. Added to this, the award had actually
been acquiesced in and the principle
of peremption prevents it now
being challenged. On the merits or the review, the applicant’s
case has no merit as well. The
review application must be dismissed.
[57]
In terms of the provisions of section 162(1) and (2) of the LRA, I
have a wide discretion where it comes to the issue of costs.
I
exercise this discretion in favour of the first respondent, as the
applicant has, in essence, failed to provide any explanation
why it
did not bring its review application timeously and simply did not
take the Court into its confidence. Considering the individual
applicant has since become deceased, I however do not believe it
appropriate or fair to burden his estate with the costs of this
matter and considering that NUMSA is an actual party to the
proceedings, I would only make the costs order applicable against it.
This matter should never have come to Court and NUMSA ought to have
known this. It would, therefore, be appropriate in this instance
that
NUMSA as an applicant party pay the costs of the failed review
application.
Order
[58]
I, accordingly, make the following order:
58.1
The applicant’s condonation application is dismissed;
58.2
The applicant’s review application is dismissed;
58.3
The applicant union, National Union of Metalworkers of SA (NUMSA), is
ordered to pay the costs of the application.
___________________
Snyman AJ
Acting
Judge of the Labour Court
APPEARANCE
S:
For the
Applicant:
Mr Cartwright of David
Cartwright Attorneys
For the First
Respondent: Advocate E Tolmay
Instructed
by:
Webber Wentzel Attorneys
[1]
Act
66 of 1995.
[2]
(2007)
28 ILJ 2405 (CC).
[3]
Id
at para 110.
[4]
(2008)
29
ILJ
2461
(CC)
at para 134.
[5]
(2008)
29 ILJ 964 (LAC).
[6]
Id
at para 102.
[7]
2013 (6) SA 224
(SCA)
per
Cachalia and Wallis JJA.
[8]
Id
at para 25.
[9]
[2007] ZALC 66
;
[2014]
1
BLLR 20
(LAC)
,
per Wag
lay
JP.
[10]
Id
at para 14.
[11]
Id
at para 16.
[12]
See
Jayes
v Radebe and Others
(2003) 24 ILJ 399 (LC);
National
Education Health and Allied Workers Union on Behalf of Mofekeng and
Others v Charlotte Theron Children's Home
(2003) 24 ILJ 1572 (LC);
Moolman
Brothers v Gaylard NO and Others
(1998) 19 ILJ 150 (LC).
[13]
(2008) 29 ILJ 318 (LC).
[14]
1962 (4) SA 531
(A) at 532C-E.
[15]
(2002) 23 ILJ 1229 (LAC).
[16]
(2000)
21 ILJ 166 (LAC)
.
[17]
Academic
and Professional Staff Association
(
supra
)
at paras 17–18.
[18]
(2010) 31 ILJ 1413 (LC) at para 13.
[19]
See
SA
Commercial Catering and Allied Workers Union v Speciality Stores Ltd
(1998)
19 ILJ 557 (LAC);
Flexware
(Pty) Ltd v Commission for Conciliation, Mediation and Arbitration
and Others
(1998) 19 ILJ 1149 (LC);
Zeuna-Starker
Bop (Pty) Ltd v NUMSA
(1999) 20 ILJ 108 (LAC) at 108 - 109;
A
Hardrodt (SA) (Pty) Ltd v Behardien and Others
(
supra
).
[20]
See
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
(
supra
);
Billiton
Aluminium SA Ltd t/a Hillside Aluminium v Khanyile and Others
(2010) 31 ILJ 273 (CC) at para 46;
Strategic
Liquor Services v Mvumbi NO and Others
(2009)
30 ILJ 1526 (CC)
at paras 12–13.
[21]
Above
n
18.
[22]
1965
(2) SA 135 (A).
[23]
See
Arnott
v Kunene Solutions and Services (Pty) Ltd
(2002) 23 ILJ 1367 (LC);
Parker
v V3 Consulting Engineers (Pty) Ltd
(2000) 21 ILJ 1192 (LC);
Independent
Municipal and Allied Trade Union on behalf of Zungu v SA Local
Government Bargaining Council and Others
(2010) 31 ILJ 1413 (LC);
GIWUSA
obo Heynecke v Klein Karoo Kooperasie
BPK
(2005)
26 ILJ 1083 (LC);
Theron
v AA Life Assurance Association Ltd
[1995] ZASCA 61
;
1995 (4) SA 361
(A) at 365;
Swanepoel
v Albertyn
(2000) 21 ILJ 2701 (LC).
[24]
(2004)
25 ILJ 96 (LAC).
[25]
Above n 18
[26]
Id
at para 24
[27]
Id
at para 25
[28]
(2014) 35 ILJ 255 (LC) at paras 18 – 19.
[29]
(2011) 32 ILJ 1959 (LC) at para 9.
[30]
(2011) 32 ILJ 2206 (LC) at para 27.
[31]
(2007)
28 ILJ 2030 (LC).
[32]
(1999) 3 BLLR 103 (LAC).
[33]
(1999) 3 BLLR 209
(LAC) at 211G-H.
[34]
(2004) 25 ILJ 2195 (LAC).
[35]
Id at para 27.
[36]
1920
AD 583
per Innes CJ.
[37]
(1992) 13 ILJ 963 (LAC).
[38]
Id
at 969I – 970A.
[39]
Id
at 973F – 974C.
[40]
Id
at 974J – 975B.
[41]
(2012) 33 ILJ 666 (LC) at para 10.
[42]
(2008) 29 ILJ 2953 (LC) at para 17.
[43]
(2011) 32 ILJ 297 (LC).
[44]
Id
at para 11.
[45]
Id
at paras 17 – 18.
[46]
(2005) 26 ILJ 349 (LC) at 352.
[47]
(2008) 29 ILJ 2507 (CC).
[48]
Id
at para 36.
[49]
Id
at para 48.
[50]
(2010) 31 ILJ 273 (CC).
[51]
Id
at para 39.
[52]
Id
at para 42.
[53]
(2012) 33 ILJ 160 (LAC) at para 43
[54]
See
para 45 of the judgment.
[55]
(2010) 31 ILJ 387 (LC).
[56]
(2010) 31 ILJ 1425 (LC).
[57]
(2009) 30 ILJ 2677 (LAC) at para 3; see also
Media
Workers Association of SA and Others v Press Corporation of SA Ltd
(1992)
13 ILJ 1391 (A) at 1397I-1398B.
[58]
Id
at para 21.