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[2015] ZALCJHB 374
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SBV Services (Pty) Ltd v NBCRFLI and Others (JR3103/12) [2015] ZALCJHB 374; (2016) 37 ILJ 708 (LC) (27 October 2015)
REPUBLIC
OF SOUTH AFRICA
Reportable
Of
interest to other judges\
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
C
ase
no: jR 3103/12
In
the matter between:
SBV SERVICES (PTY)
LTD
Applicant
And
NBCRFLI
First Respondent
CCMA
Second Respondent
FLOORS BRAND N.O.
Third Respondent
SASBO – THE
FINANCE UNION
Fourth Respondent
PROTEA COIN GROUP
(ASSETS IN TRANSIT AND ARMED REACTION) (PTY) LTD
Fifth Respondent
Heard
:
7 October 2015
Delivered
:
27 October 2015
Summary:
Review – demarcation -- LRA s 62.
Interpretation of “goods” to include “money”
in context of cash
in transit. Whether s 145 or s 158(1)(g) applies
in review of demarcation.
JUDGMENT
STEENKAMP
J
Introduction
[1]
Does the word “goods” include
“money” in the context of cash in transit? That is the
question that arose
in a demarcation dispute before the CCMA. The
commissioner found that it did. The applicant seeks to have that
conclusion reviewed
and set aside.
[2]
This
case addresses the question of demarcation of the relevant bargaining
council; the reasoning and conclusion of the commissioner;
and the
question whether s 145 or s 158(1)(g) of the Labour Relations Act
[1]
applies to reviews of demarcation disputes.
Background
facts
[3]
The applicant, SBV Services (Pty) Ltd, is
engaged in the cash in transit business. It transports large amounts
of money (banknotes
and coins) in armoured vehicles. The question
that served in a demarcation dispute in terms of s 62 of the LRA
before the CCMA
(the second respondent) is whether that activity
falls within the registered scope of the National Bargaining Council
for the Road
Freight and Logistics Industry. SBV says it does not;
the Council says it does. The Commissioner, Mr Floors Brand (the
third respondent)
agreed with the Council.
[4]
More than eight years ago an employer
engaged in the “assets in transit” (AIT) or “cash
in transit” (CIT)
business raised the argument that the items
that it carried (cash and negotiable instruments) were not “goods”
and
that its activities fell outside the certificate of registration
of the Council. The Council’s scope of registration is set
out
in the certificate of registration as the “road freight and
logistics industry”, which is defined in part as:
“…
the
industry in which employers and employees are associated for carrying
on one or more of the following activities for hire or
reward:
(i)
the transportation of goods by means of
motor transport;
(ii)
the storage of goods including the
receiving, opening, unpacking, packing, despatching and clearing of,
or accounting for of goods
where these activities are ancillary or
incidental to paragraph (i) above.”
[5]
The
employer in that case, as does the applicant in this one, contended
that “money” does not constitute “goods”
in
the context of the Council’s certificate. But it did not raise
the point before the commissioner in the demarcation proceedings,
nor
in its founding papers on review, and the Court considered it
impermissible for the employer in that case to raise it in argument
and for the Court to deal with it.
[2]
The applicant in this case, SBV, does so now. It raised it squarely
in the demarcation proceedings. The Commissioner ruled that
the word
“goods” in the certificate of registration includes money
or cash transported by SBV. It seeks to have that
in
limine
ruling
reviewed and set aside.
[6]
SBV is split into two divisions –
cash in transit (CIT) and cash management (which is performed in the
warehouses to which
the cash is delivered). The CIT division employs
more than 2000 employees. In 2010 it operated a fleet of 711 CIT
armoured vehicles,
travelling more than 32 million km per year. All
cash, cheques and deposit slips are transported in bags; and at least
in relation
to ATM services, SBV’s rates are calculated with
reference to a cost per kilometre travelled.
[7]
Since
1971 (43 years ago), CIT operations have been demarcated as falling
within the registered scope of the Council or its predecessors.
Under
the LRA, two demarcation awards have been issued by the CCMA
[3]
confirming it, both supported by NEDLAC. It is the Savage award that
was dismissed by the Labour Court in
Coin
Security
[4]
,
albeit without dealing with the interpretation raised in these
proceedings head-on.
[8]
At present CIT is a recognised and distinct
sub-sector within the Council. There are 73 CIT operators registered
with the Council,
employing some 4000 people. The Council’s
constitution and collective agreements recognise that CIT falls
within its registered
scope; and the Minister has extended the
Council’s main collective agreement to non-parties in terms of
s 32 of the LRA.
Those agreements expressly regulate terms and
conditions of employment in the CIT subsector.
[9]
Historically,
SBV accepted that its CIT division fell within the scope of
registration of the Council, but it applied for and was
granted an
exemption from the provisions of its collective agreements. More
recently, in the face of opposition to its renewed
application for
exemption, it launched an application in terms of s 62 of the LRA to
be demarcated outside the scope of registration
of the Council.
[5]
There is no competing bargaining council dealing with the
transportation of money in its registered scope. The Commissioner
presided
over the demarcation dispute that SBV had referred to the
CCMA. In those proceedings, SBV raised the point
in
limine
that money does not comprise “goods” under the Council’s
scope of registration. It is that ruling that SBV seeks
to review.
The
commissioner’s ruling
[10]
The commissioner (correctly) framed the
question before him:
“
[T]he
question therefore is whether the word ‘goods’ in the
certificate of registration of the [Council] includes money
or cash.”
[11]
He referred to the mostly trite principles
of interpretation. These included that a word must be interpreted in
context and, if
it has more than one meaning, the interpreter should
decide which meaning is to be attributed to it with reference to the
context
of the document being interpreted.
[12]
With reference to dictionary definitions
relied upon by SBV, the commissioner accepted that ‘money’
is not usually understood
as constituting merchandise, wares or a
commodity, and that generally ‘money’ is a means of
exchange. He also accepted
that, in more than one judgment, the
courts have found that ‘goods’ does not include ‘money’.
However,
he went on to find:
“
But
that is of course one side of the proverbial coin – there are
several authorities which suggest that ‘goods’
can
include ‘money’. Having read the authorities it seems to
me the determinative question is whether the word ‘goods’
in the certificate of registration of the [Council] should be given a
narrow or an extended meaning?”
[13]
The
commissioner plumped for the extended meaning in the context of the
Council’s registered scope. He relied on
The
Noordam
[6]
,
in which the Privy Council found that “goods” is a very
general word of indefinite import; that it primarily derives
its
meaning from its context; and that it may sometimes be of the widest
and sometimes of the narrowest import. He also relied
on
Commander
[7]
,
in which it was held that
prima
facie
general words should be taken in their larger sense, unless one finds
something in the context which shows that they are intended
to be
read in a more restrictive way.
[14]
The
commissioner also referred to three judgments in which “an
extended meaning was attributed to the word ‘goods’
so as
to include ‘money’” –
Padyachi
[8]
,
Ganyu
[9]
,
and
Behm
[10]
.
He
also referred to
Stroud’s
Legal Dictionary
where it is stated that “ ‘coins’ can be ‘goods’
… when it is not used as a means of exchange
or in its normal
function as money…”.
[15]
The
full quotation from
Padyachi
relied
upon by the Council and by the commissioner reads:
[11]
“
I
think it may be conceded that in many cases, perhaps in the ordinary
case, the word ‘goods’ is not to be taken to
comprehend
current coin of the realm, although in the general sense it is wide
enough to do so. But, as has been pointed out by
Maxwell
(Fourth Ed, 101): ‘even where the usual meaning of the language
falls short of the whole object of the legislator, a more
extended
meaning may be attributed to it, if fairly susceptible of it. If
there are circumstances in the Act showing that words
are used in the
larger sense than their ordinary meaning, that sense must be given to
them.’ That ‘goods’ is
fairly susceptible of the
wider meaning which will include money I think is clear, and if
authorities necessary for the proposition
I may cite the passage from
Foster’s Crown Law
which
is set out in
Rex v John Radley
(Cox’s Criminal Law Cases, 460 (Note A, p 461): ‘But it
hath been rightly holden that money is not with in the Act
(10 and
11, Will, 3c, 23 etc) the words being ‘goods, wares and
merchandises’; for although the word goods may in a
large sense
take in money, and often doth, yet being connected with wares and
merchandises, the safer construction of so penal
a statute will be to
confine it to goods
ejusdem generis
,
goods exposed to sale.’
Now
here no question of the application of the rule of
ejusdem generis
arises… Even therefore if it be conceded that in its ordinary
meaning the word ‘goods’ will not include money
I see no
reason why the more extended meaning of which it is susceptible
should not be attributed to adhere because I think that
the
circumstances of the Act show that the word is used in that sense.”
And
further:
[12]
“
There
are few nouns in the English language which are not capable of both a
restricted and an extended meaning. In construing a
statute it is the
duty of the court so to construe it as to suppress the mischief and
advance the remedy. The word ‘goods’,
like many other
words, is capable of either a restricted or an extended meaning. If
it is given its extended meaning, it is capable
of including gold in
coins. When we look at the purpose of this particular legislation,
examine the mischief struck at, and consider
the remedy which the
legislature desire to apply; and, when we do that, it becomes clear
that the legislator had in view the prohibition
of all goods which
might reduce the capacity of the country to continue the war, while
increasing that of the enemy if it found
its way there. Taking that
view we must hold that in the use of the word ‘goods’ the
legislature intended the extended
meaning…”.
[16]
The
full quotation from
Ganyu
[13]
relied upon by the Council and cited by the commissioner reads:
“
Bearing
in mind the purpose of the legislation, there is no possible reason
why section 14 should be construed to relate to some
goods only and
not to all goods, to some money but not all money. To the extent to
which the section is held not to apply to certain
goods, the
legislation becomes
pro tanto
ineffective. Since the section is clearly intended to deal with theft
generally, in my view the word ‘goods’ must of
necessity
be given a wide and unrestricted meaning sized embrace goods
generally and not only some goods. Once it is decided that
so
construed the word includes money, there is no justifiable reason for
including some types of money and excluding others. To
do so would
not only partially defeat the purpose of the legislation, but would
also involve reading into the section words which
are not there and
cannot properly be implied.”
[17]
And
the full quotation from
Behm
[14]
relied on by the Council reads:
“
There
are two aspects under which we can consider money: the instrument of
exchange and the matter of which the instrument is constituted.
As an
instrument of exchange there is a great difference between a $1 bill
and a $1000 bill. But as between the paper of these
two bills, there
is no difference in value, or at least no significant difference in
value. Similarly, the instrument of exchange
constituted by this $1
bill is worth four times the instrument of exchange which is
constituted by a 25c piece. But as between
the substances which
constitute these instruments of exchange, the value of the metal in
the 25c piece is greater by far than that
of the paper in the $1
bill.
I
am led to think that if we are concerned with them as instruments of
exchange, Behm is right in his submission that coins are
not goods.
Money is what we give a surprise for goods which we obtain. But if we
are concerned with the substance of which money
is constituted, it
seems clear to me that this substance is a ‘good’. The
Nouveau Larousse dictionary… defines
‘merchandises’
(goods) as… (all that can be bought and sold). Metal and paper
are objects which can be bought
and sold.
We
must therefore seek to find under which aspect the Governor in
Council considers coins in the present order.… I conclude
that
[he] has regulated the export of silver as a metal and that this
metal is a ‘good’ and an article within the meaning
of
the… Act.”
[18]
The Commissioner considered that “[t]he
question of whether the word ‘goods’ should be given a
wide meaning depends
on the character, circumstances and purpose of
the Council’s registration”.
[19]
In this regard, the Commissioner made three
findings.:
“
Firstly
it has to be noted that the word ‘goods’ stands alone in
this case and there is no indication in the certificate
that ‘goods’
should be construed to relate to some goods and not to all goods or
for that matter that it should be
given a restricted meaning. Clearly
the word ‘goods’ in the Council’s certificate is
concerned with the substance
of what is transported and should be
given its ordinary meaning, which, in my view, includes all tangible
and movable property”.
Secondly:
“
Furthermore,
it must be accepted that the intention behind the registration of the
Council is to afford the Council jurisdiction
over employers and
employees who associate for the purpose of carrying on the business
of road transport generally. It would therefore
be wrong to restrict
the generality of the transportation business without any clear
indication, which there is not in the certificate.”
And
thirdly:
“
In
the process of interpreting the certificate I have also had regard to
the objectives of the LRA and to interpret it in a way
that gives
effect to such objectives. One of the objectives is of course
collective bargaining (section 1 of the LRA) and the LRA
achieves
this purpose through the establishment and registration of bargaining
councils in respect of sectors and areas. A narrow
interpretation of
the scope envisages [
sic
]
by the certificate will defeat this purpose, particularly where there
is no competing council… But, the fact of the matter
is that
if I find that ‘goods’ do not include money there will be
no basis to argue that the [council] has jurisdiction
over the CIT
operations and thereby bring an end to collective bargaining in that
sector, which will be at odds with one of the
main purposes of the
LRA. Therefore, if it is susceptible that an extended meaning can be
attributed to [the] word ‘goods’
in the registration
certificate…, which will achieve the object of the LRA, that
meaning should be given to it.”
[20]
The Commissioner concluded that the word
“goods” in the Council’s certificate of
registration should be given
“a wide or extended meaning, which
includes money”. As Mr
Myburgh
pointed out, this was the first basis for the dismissal of SBV’s
point
in limine
.
[21]
The second basis for the Commissioner
rejecting SBV’s point
in limine
was this:
“
Looking
at the question from another angle, the question can be asked whether
money, in the context that it is dealt with in the
CIT division of
SPV, constitutes ‘goods’.
The
reason for the presence of money in the CIT division of is BV is
clearly not to be used as a means of exchange or in its normal
function as money. At the end of the day it is metal and paper which
are placed in containers and bags for transportation from
point A to
point B as any other commodity. The mere fact that it is money does
not change the reason for the presence of the money
in the CIT
division. Hence, I am of the view that from this point of view there
is also every reason to say that money in the CIT
operations context
constitutes ‘goods’.”
[22]
The Commissioner concluded: “The word
‘goods’ in the certificate of registration of the NBCRFLI
includes money
or cash”.
The
appropriate test on review: s 145 or s 158(1)(g)?
[23]
Our
courts have not been consistent in the way in which reviews of
demarcation awards are to be considered. In
Coin
Security
[15]
and in
Golden
Arrow Bus Services (Pty) Ltd v CCMA
[16]
the
Labour Court assumed that it was regulated by s 158(1)(g) of the LRA
and the review grounds found in the common law. On the
other hand,
the review grounds set out in s 145 were applied in
SAMWU
v Syntell (Pty) Ltd
[17]
;
NBCRFI v Marcus N.O.
[18]
;
National Textile Bargaining Council v De Kock
[19]
;
Dewdev (Pty) Ltd t/a Bulkbag Manufacturers v Bargaining Council for
the Canvas Goods Industry, Witwatersrand & Pretoria
[20]
and
Henred
Freuehauf.
[21]
[24]
Mr
Redding
argued that a demarcation is not an arbitration. It is a
determination of whether particular activities fall within a
particular
industry. The question is decided by a CCMA commissioner
after consulting with NEDLAC and considering written representations,
not only by the parties to the original dispute, but also others who
may have some interest in the issue. On the other hand, arbitration
is an adjudicative process between contesting parties in which a
dispute is defined and one or other of the parties will have the
onus
of establishing its case.
[22]
He submitted that the demarcation process is not an arbitration and
the demarcation award is not an arbitration award. Therefore,
he
argued, demarcation proceedings are to be reviewed under s 158(1)(g)
and not s 145; alternatively, it constitutes administrative
action
reviewable under PAJA.
[23]
[25]
I
find myself unable to agree with this submission. As the learned
authors in
Labour
Relations Law: A Comprehensive Guide
[24]
point out, demarcation disputes may be arbitrated either on
application to the CCMA
[25]
or, if ancillary to some other dispute, by the Labour Court or in the
context of those other proceedings.
[26]
The LRA itself refers to “arbitration” and “award”
in in the following subsections of s 62: (3)(a)(i);
(3A)(a)(i);
(5)(a)(i); (8); (9); (10) and (11). And in terms of s 62(4), when the
CCMA receives an application in terms of s 62(1),
it must appoint a
Commissioner to hear the application or determine the question, and
the provisions of section 138 apply, read
with the changes required
by the context. Section 138 contains “general provisions for
arbitration proceedings”.
[26]
I am persuaded that demarcation proceedings
in terms of s 62 are akin to arbitration; that the general provisions
for arbitration
proceedings apply to those proceedings; and that a
commissioner’s award in a demarcation dispute is, in effect, an
arbitration
award finally disposing of the case; or, in the case of
the commissioner’s ruling on SBV’s point
in
limine
, finally disposing of a
substantial and discrete part of its case. Therefore, the limited
grounds of review set out in s 145 apply.
Grounds
of review
[27]
The applicant argued that the commissioner
committed an error of law by erroneously interpreting the term
“goods” to
include “money”. Mr
Redding
argued that the erroneous interpretation was material; that it
constitutes a gross irregularity; or that it is an unlawful exercise
of administrative power. Alternatively, he argued that the result was
unreasonable.
Evaluation
/ Analysis
[28]
Given
my view that the review test in s 145 applies to a review of
demarcation proceedings under s 62, I am in respectful disagreement
with Mr
Redding
that
an error of law in itself would be reviewable, as he argued it would
be in terms of s 158(1)(g) or PAJA. In my view, the review
test in
accordance with s 145 applies, suffused in the reasonableness test
set out in
Sidumo
[27]
and
Herholdt.
[28]
I shall nevertheless consider each of the three review grounds
advanced.
Unreasonabless
[29]
In
NBCRFI
v Marcus NO
[29]
it was held that due deference ought to be paid to a commissioner
making a demarcation award. In demarcation disputes there will
be,
more often than not, no single correct judgment and a wide range of
approaches and outcomes is inevitable. A reviewing court
should
therefore interfere only in cases where the boundary of
reasonableness is crossed. This approach was followed in
Dewdev,
National Textile Bargaining Council v De Kock
and
Henred
Freuehauf.
[30]
That approach was confirmed by the LAC in
NBCRFI
v Marcus NO.
[31]
[30]
The LAC in that case also noted that, under
the LRA, demarcations need to be seen in the context of the system of
bargaining councils
aimed at achieving the primary objects of the
Act, including the promotion of orderly collective bargaining and
collective bargaining
at a sectoral level. “These statutory
imperatives require the demarcating tribunal to enquire, beyond
mechanistic comparison
of jobs, into the relevant collective
bargaining practices and structures.”
[31]
It will be clear from these findings of the
LAC that the reasonableness test for review will be particularly
difficult to meet in
the case of a demarcation award. In this case,
as will appear from discussion below, the applicant has not been able
to show that
the conclusion of the Commissioner was so unreasonable
that no reasonable decision-maker could have come to the same
conclusion.
Gross
irregularity and errors of law
[32]
Does an error of law constitute a gross
irregularity?
[33]
As
Mr
Myburgh
pointed out in his argument, as a point of departure, the SCA
confirmed in
Herholdt
that
the grounds of review listed in s 145(2) [including a gross
irregularity] bear the same meaning as they do in terms of section
33
of the Arbitration Act.
[32]
[34]
The
most authoritative judgment on when an error of law will constitute a
gross irregularity under section 33 of the Arbitration
Act [and thus
s 145(2) of the LRA] is the judgement of the SCA in
Telcordia.
[33]
in that judgment, Harms JA relied on two earlier judgments:
Doyle
[34]
and
Goldfields
Investments.
[35]
The
dictum
by
Innes CJ in
Doyle
[36]
on
which the SCA relied in
Telcordia
is this:
“
Now
a mere mistake of law in adjudicating upon a suit where the
magistrate has jurisdiction to try cannot be called an irregularity
in the proceedings. Otherwise a review would lie in every case in
which the decision depends upon a legal issue, and the distinction
between procedure by appeal and procedure by review, so carefully
drawn by statute and observed in practice, would largely disappear.
Yet in this case it is a mistake of law alone which is relied upon as
constituting gross irregularity. There is neither allegation
nor
suggestion that the magistrate, his attention having been drawn to
section 37, deliberately refused to apply his mind to it,
or to
consider it. The position, if the section means what the applicant
contends, is that the magistrate either honestly misinterpreted
or
completely overlooked it. In either event it would not, I am afraid,
be the first occasion on which a court of law has misread
a statutory
provision or overlooked one not brought to its notice at the trial.
Whichever supposition were the correct one, the
result would be
(still assuming the correctness of the applicant’s
interpretation) an unfortunate error of law which, but
for the
special prohibition of the statute would afford good grounds for an
appeal. But there would be no gross irregularity in
the proceedings,
and therefore no justification for a review.”
[35]
Harms
JA then cited with approval the following
dictum
by Schreiner J in
Goldfields
Investment
:
[37]
“
The
law, as stated in
Ellis
v Morgan
[38]
… Has been accepted in subsequent cases, and the passage which
has been quoted from that case shows that it is not merely
high-handed or arbitrary conduct which is described as a gross
irregularity; behaviour which is perfectly well-intentioned and
bona
fide, though mistaken, may come under that description.
The
crucial question is whether it prevented a fair trial of the issues.
If it did prevent a fair trial of the issues then it will amount to a
gross irregularity. Many patent irregularities have this
effect. And
if from the magistrate’s reasons it appears that his mind was
not in a state to enable him to try the case fairly
this will amount
to a latent gross irregularity. If, on the other hand, he merely
comes to a wrong decision owing to his having
made a mistake on a
point of law in relation to the merits, this does not amount to gross
irregularity. In matters relating to
the merits the magistrate may
err by taking a wrong one of several possible views, or he may err by
mistaking or misunderstanding
the point in issue. In the latter case
it may be said that he is in a sense failing to address his mind to
the true point to be
decided and therefore failing to afford the
parties a fair trial. But that is not necessarily the case.
Where
the point relates only to the merits of the case, it would be
straining the language to describe it as a gross irregularity
or a
denial of a fair trial.
One would say that the magistrate has decided the case fairly but has
gone wrong on the law. But if the mistake leads to the court’s
not merely missing or misunderstanding a point of law on the merits,
but to its misconceiving the whole nature of the enquiry,
or of its
duties in connection with, then it is in accordance with the ordinary
use of language to say that the losing party has
not had a fair
trial.
I
agree that in the present case the facts fall within this latter
class of case, and that the magistrate, owing to the erroneous
view
which you hold as to its functions, really never dealt with the
matter before him in the manner which was contemplated by
the
section.
That being so, there was a gross irregularity, and the proceedings
should be set aside.”
[36]
I agree with Mr
Myburgh
’s
submission that, in summary, the
Goldfields
Investment
principle is that an error
of law on the part of the decision-maker will only constitute a gross
irregularity if it results in
him misconceiving the whole nature of
the enquiry or his duties in connection therewith. The same point was
made in
Herholdt
.
[37]
Applying
those principles to the facts in
Telcordia
[39]
,
Harms JA held:
“
The
fact that the arbitrator may have either misinterpreted the
agreement, failed to apply South African law correctly, or had regard
to inadmissible evidence does not mean that he misconceived the
nature of the enquiry or his duties in connection therewith. It
only
means that he erred in the performance of his duties. An arbitrator
‘has the right to be wrong’ on the merits
of the case,
and it is a perversion of language and logic to label mistakes of
this kind as a misconception of the nature of the
enquiry –
they may be misconceptions about meaning, law or the admissibility of
evidence but that is a far cry from saying
that they constitute a
misconception of the nature of the enquiry. To adapt the quoted words
of Hoexter JA:
[40]
it cannot
be said that the wrong interpretation of the Integrated Agreement
prevented the arbitrator from fulfilling his agreed
function or from
considering the matter left to him for decision. On the contrary, in
interpreting the Integrated Agreement the
arbitrator was actually
fulfilling the function assigned to him by the parties, and it
follows that the wrong interpretation of
the Integrated Agreement
could not afford any ground for review by a court.
Likewise,
it is a fallacy to label a wrong interpretation of a contract, a
wrong perception or application of South African law,
or an incorrect
reliance on inadmissible evidence by the arbitrator as a
transgression of the limits of his power. The power given
to the
arbitrator was to interpret the agreement, rightly or wrongly; to
determine the applicable law, rightly or wrongly; and
to determine
what evidence was admissible, rightly or wrongly. Errors of the kind
mentioned have nothing to do with him exceeding
his powers; they are
errors committed within the scope of his mandate. To illustrate, an
arbitrator in a ‘normal’ local
arbitration has to apply
South African law but if he errs in his understanding or application
of local law the parties have to
live with it. If such an error
amounted to a transgression of his powers that would mean that all
errors of law are reviewable,
which is absurd.”
[38]
It is apparent from the SCA judgement in
Telcordia
that an error of law – giving rise to a wrong interpretation –
does not constitute a gross irregularity, provided that
the error is
not of such a nature as to fall foul of the
Goldfields
Investment
principle, i.e. that the
arbitrator misconceived the whole nature of the enquiry. And in
Herholdt
,
where the SCA dealt with the review of an arbitration award in terms
of section 145 of the LRA – although it did not deal
expressly
with errors of law – it also concluded that, apart from
producing an unreasonable award, a Commissioner only commits
a gross
irregularity if he misconceives the nature of the enquiry.
[39]
As will be seen from the discussion below,
it cannot be said that the arbitrator in this case misconceived the
nature of the enquiry.
He did exactly what he was meant to do, i.e.
to interpret the use of the word “goods” in the context
of the certificate
of registration and the broader socio-economic
context of the Bargaining Council. He did not commit a gross
irregularity.
Unlawful
exercise of administrative power
[40]
Mr
Redding
also argued that the demarcation proceedings conducted by
commissioners constitute administrative action and that it is
reviewable
in terms of PAJA. In his heads of argument, he said:
“
It
is submitted that perhaps the applicability of the precise section
[of the LRA] is unimportant since it is accepted that both
sections
[i.e. s 145 and s 158], in so far as they deal with decisions by CCMA
Commissioners, the actions and decisions of whom
constitute
administrative action and are accordingly required to be lawful,
reasonable and procedurally fair as set out in section
33 (1) of the
Constitution.”
[41]
Again,
I am respectfully unable to agree. It has been held in
Sidumo
and in
Herholdt
that PAJA does not apply to the review of CCMA awards. Instead, the
legislature selected “the narrowest possible grounds
of review
as the basis for challenging arbitration”
[41]
,
i.e. the grounds set out in section 145.
First
attack on the ruling: extended meaning given to the term “goods”
[42]
SBV argued, firstly, that the Commissioner
committed an error of law by giving the term “goods” an
extended meaning.
Its submission was that, if the ordinary rules for
the establishment of the ordinary grammatical meaning of words are
adopted,
the inevitable conclusion is that the word “goods”
has an ordinary meaning which excludes money or legal tender.
[43]
The Commissioner did come to the conclusion
that “goods” should be given a wide or extended meaning
in the context that
it is used in the certificate of registration. He
did so for three reasons:
43.1
Firstly, the word “goods” stand
alone in the certificate of registration and there is no indication
why it should relate
to some goods and not others, or be given a
restricted meaning; and the word “goods” in the
certificate is concerned
with the substance of what is transported.
43.2
Secondly, the intention behind the
registration of the Council was to give it jurisdiction over
employers and employees who associate
for the purpose of carrying on
the business of road transport generally – thus it would be
wrong to restrict the generality
of the transportation business.
43.3
Thirdly, in circumstances where the word
“goods” was susceptible to an extended meaning, it should
be given that meaning,
because it would serve the objects of the LRA,
which include collective bargaining at sectoral level. That is
consistent with the
case law set out above.
[44]
The
Commissioner properly and reasonably took into account not only the
dictionary definition of “goods”, but also the
context of
the use of the word in the certificate; the intention behind the
registration of the Council; and the objectives of
the LRA. That is
consistent, not only with the case law discussed above, but also with
the principle of interpretation set out
by the SCA in
Natal
Joint Municipal Pension Fund
:
[42]
“
The
present state of the law can be expressed as follows: interpretation
is the process of attributing meaning to the words used
in a
document, be it legislation, some other statutory instrument, or
contract, having regard to the context provided by reading
the
particular provision or provisions in the light of the document as a
whole and the circumstances attendant upon its coming
into existence.
Whatever the nature of the document, consideration must be given to
the language used in the light of the ordinary
rules of grammar and
syntax, the context in which the provision appears, the apparent
purpose to which it is directed and the material
known to those
responsible for its production. Where more than one meaning is
possible each possibility must be weighed in the
light of all these
factors. The process is objective, not subjective. A sensible meaning
is to be preferred to one that leads to
insensible or unbusinesslike
results or undermines the apparent purpose of the document. Judges
must be alert to, and guard against,
the temptation to substitute
what they regard as reasonable, sensible or businesslike for the
words actually used. To do so in
regard to a statute or statutory
instrument is to cross the divide between interpretation and
legislation; in a contractual context
it is to make a contract for
the parties other than the one they in fact made. The ‘inevitable
point of departure is the
language of the provision itself’,
read in context and having regard to the purpose of the provision and
the background to
the preparation and production of the document.”
[45]
The Commissioner took into account the
language of the certificate, read in context and having regard to its
purpose, including
the primary purpose of collective bargaining. That
is an entirely reasonable approach and it does not evince a gross
irregularity.
There can be no question of the Commissioner having
misconstrued the nature of the enquiry. And, in my view, it led to a
reasonable
conclusion.
Second
attack on the ruling: irrational finding that money constitutes
“goods”
[46]
SBV’s second ground of attack on the
commissioner’s finding is aimed at his conclusion that “the
presence of money
in the CIT division of SBV is clearly not to be
used as a means of exchange or in its normal function as money”.
The Commissioner
concluded:
“
At
the end of the day it is metal and paper which are placed in
containers and bags for transportation from point A to point B as
any
other commodity. The mere fact that it is money does not change the
reason for the presence of the money in the CIT division.
Hence, I am
of the view that from this point of view there is also every reason
to say that money in the CIT operations context
constitutes ‘goods’.”
[47]
Mr
Redding
argued that, on this reasoning, money
becomes a commodity based upon the means used to carry at; and that
this reasoning is illogical
or irrational.
[48]
But
the Commissioner’s reasoning is consistent with the facts
before him. The money is packed in containers and bags for
transportation, the same as any other commodity that is transported
by entities that fall within the Bargaining Council’s
scope.
And it is consistent with the reasoning in
Behm
[43]
on which the Commissioner relied:
“
Money
is what we give as the price for goods which we obtain. But if we are
concerned with the substance of which money is constituted,
it seems
clear to me that this substance is a ‘good’.”
[49]
The Commissioner’s finding in this
regard is supported by the evidence before him. It is not
unreasonable, even if others
may differ.
Conclusion
[50]
The Commissioner did not misconceive the
nature of the enquiry. He understood exactly what he was meant to do,
and it did so after
carefully applying its mind to the evidence
before him and the relevant jurisprudence. His resultant conclusion
is not so unreasonable
that no reasonable decision-maker could have
come to the same conclusion. His ruling is not open to review.
[51]
With regard to costs, I take into account
that there is an ongoing relationship between the parties. SBV
remains a member of the
Bargaining Council. And the dispute forming
the basis of this application is a long-standing and contentious one
that needed to
be resolved. In law and fairness, each party should
pay its own costs.
[52]
Lastly, I am indebted to both counsel for
their comprehensive heads of argument and their making available
copies of old and foreign
case law.
Order
The
application for review is dismissed.
_______________________
Anton Steenkamp
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANT:
Andrew
Redding SC
Instructed
by Webber Wentzel.
FIRST
RESPONDENT:
Anton
Myburgh SC
Instructed
by Bowman Gilfillan Inc.
[1]
Act 66 of 1995 (the LRA).
[2]
Coin
Security (Pty) Ltd v CCMA
(2005)
26
ILJ
849 (LC) para [37].
[3]
By commissioners Marcus and Savage (as she then was), respectively.
[4]
Supra.
[5]
Section
62(1)(a) provides: “(1) Any registered trade
union, employer, employee, registered employers’
organisation
or council that has a direct or indirect interest in the application
contemplated in this section may apply to the
Commission in the
prescribed form and manner for a determination as to—
(a)
whether any employee, employer, class of employees or class of
employers, is or
was employed or engaged in a sector or area;”.
[6]
The
Noordam (No 2) and Other Ships
1920 AC 899
(Privy Council).
[7]
Ciommander
v Collector of Customs
1920 AD 510.
[8]
Padyachi
v Rex
1919 NPD 145.
[9]
S
v Ganyu
1977 (4) SA 810 (RA).
[10]
R v
Behm
(1970)
12 DLR (3d) 260.
[11]
[per Dove-Wilson JP at 147-8]. In that matter, a regulation
restricting the export of gold coins in wartime was found not to
be
ultra
vires
the Public Welfare and Moratorium Act, 1914, which empowered the
Governor-General to make regulations restricting the export
of
“goods”.
[12]
{per Tatham J at 149}.
[13]
At 812-3. The subject matter was s 14 of an Act which provided that:
“Any person who is found in possession of any goods
of any
description in regard to which there is a reasonable suspicion that
there have been stolen and is unable to give a satisfactory
account
of such possession shall be guilty of an offence and liable to the
penalties which may be imposed on a conviction of
theft."
[14]
At 262-3. In this matter, the Québec Court of Appeal held
that saw the coins constituted "goods" for the purpose
of
the Export and Import Permits Act.
[15]
Supra
paras
[40] – [41].
[16]
(2005)
26
ILJ
242 (LC) at 244 B-C; 249 G; 256 B.
[17]
[2013]
2 BLLR 207
(LC); (2014) 34
ILJ
1263 (LC) paras [23] – [24].
[18]
[2011]
2 BLLR 169
(LC); (2011) 32
ILJ
678 (LC) para [15], upheld on appeal in
NBCRFI
v Marcus N.O.
(2013)
34
ILJ
1458 (LAC).
[19]
(2014)
35
ILJ
1017
(LC).
[20]
(2014)
35
ILJ
1004 (LC).
[21]
Henred
Freuehauf v Marcus NO
(2014)
35
ILJ
3147 (LC).
[22]
Relying
on
LAWSA
vol
1 para 406;
Halsbury’s
Laws of England
(4
th
ed, reissue) vol 2 para 601.
[23]
The
Promotion of Administrative Justice Act (Act 3 of 2000).
[24]
Du
Toit et al,
Labour
Relations Law: A Comprehensive Guide
(6ed
2015) p 124 fn 45.
[25]
LRA
s 62(1).
[26]
LRA
s 62(3).
[27]
Sidumo
v Rustenburg Platinum Mines Ltd
[2007] 12 BLLR 1097 (CC).
[28]
Herholdt
v Nedbank Ltd
[2013]
11 BLLR 1074 (SCA).
[29]
[2011]
2 BLLR 169
(LC), with reference to
Coin
Security (Pty) Ltd v CCMA
[2005] 7 BLLR 672 (LC).
[30]
Supra.
[31]
Supra
para
[22].
[32]
Act 62 of 1995.
[33]
Telcordia
Technologies Inc v Telkom SA Ltd
2007
(3) SA 266 (SCA).
[34]
Doyle v
Shenker & Co Ltd
1915
AD 233.
[35]
Goldfields
Investment Ltd v City of Johannesburg
1938
TPD 551.
[36]
Supra
236 –
7, quoted at
Telcordia
para [87].
[37]
Supra
560-561,
quoted at
Telcordia
para
[73] (Harms JA’s emphasis).
[38]
Ellis v
Morgan; Ellis v Desai
1909
TS 576
at 581.
[39]
Supra
paras
[85] – [86].
[40]
In
Administrator,
South West Africa v Jooste Lithium Myne (Edms) Bpk
1955
(1) SA 557
(A) at 569 D-G.
[41]
Herholdt
para [9].
[42]
Natal
Joint Municipal Pension Fund v Endumeni Municipality
2012 (4) SA 593
(SCA) para [18].
[43]
Supra
at
262-3.