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1991
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[1991] ZASCA 53
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Da Gama Textile Company Ltd. v Ntlonti and Others (374/89) [1991] ZASCA 53; 1991 (3) SA 508 (AD); [1991] 2 All SA 320 (A); (1991) 12 ILJ 791 (A) (17 May 1991)
I
N THE SUPREME COURT OF SOUTH AFRICA
(
APPELLATE
DIVISION
)
CASE NO 374/89
DA GAMA TEXTILE COMPANY LIMITED
APPELLANT
AND
PENROSE NTLONTI AND EIGHTY-SIX OTHERS
RESPONDENTS
CORAM
: HOEXTER, HEFER, FRIEDMAN, GOLDSTONE JJA, et
PREISS AJA.
DATE HEARD
: 3 May 1991
DATE DELIVERED
: 17 May 1991
2
JUDGMENT
GOLDSTONE JA
The eighty-seven respondents were employees of the appellant, Da Gama Textile
Company Limited ("Da Gama"). Between 1 and 10 October
1985 the appellants
together with other co-employees were dismissed by Da Gama. The reason for their
dismissals was their participation
in a work stay-away on 26 and 27 September
1985. The respondents declared a dispute with Da Gama and on 29 November 1985
they applied
to the Minister of Manpower and of Public Works ("the Minister")
under section 35 of the Labour Relations Act 28
3 of 1956 ("the Act") for the
establishment of a conciliation board. The application was refused by the
Minister at the end of February
1986. One of the reasons for the refusal was
that the Minister regarded the application as havlng been made only by an
individual
employee, Mr Penrose Ntlonti (the first respondent). Although Ntlonti
had intended to make the application on behalf of all of the
respondents, the
statutory form of application inadvertently reflected him as the sole applicant.
It was consequently decided to
file another application in which all of the
respondents were reflected as applicants for the establishment of a conciliation
board.
That application was filed with the Minister on 6 May 1986. On 4 May 1987
the Minister refused it.
By notice of motion dated 10 August 1987 the
respondents approached the Court a
quo
, in terms of Rule 53 of the
Uniform Rules of Court, for the review of the
4 Minister's decision. The
Minister was cited as the first respondent and Da Gama as the second respondent.
The Court a
quo
was requested to set aside the decision of the Minister
and to substitute for it a decision establishing a conciliation board or,
alternatively, to grant an order referring the application back to the Minister
to be considered by him afresh. The Minister did
not oppose the application. In
compliance with the provisions of Rule 53 he dispatched to the Registrar of the
Court a
quo
the record of the application under section 35 of the Act
together with the reasons for his decision. In a short affidavit the Minister
stated that he would abide the decision of the Court. The application was
opposed by Da Gama. In due course the review application
came before Mullins and
Kroon JJ in the Eastern Cape Division. They found in favour of the respondents
and issued the following order:
5
"(a) The decision of first respondent refusing applicants'
application for the establishment of a conciliation.board is set aside.
(b) There is substituted for the first respondent's decision an order approving
the establishment of a conciliation board in respect
of the disputes raised in
the application dated 13 April 1986.
(c) The matter is remitted to the first respondent to cause any further
necessary steps to be taken in terms of section 35 of Act
28 of 1956.
(d) Second respondent is ordered to pay such costs as were occasioned by its
opposition to these proceedings."
With
leave of the Court a
quo
Da Gama appealed to this Court
against that
order.
In his reasons the Minister referred to eight formal defects in the
respondents' application under section 35 of the Act. These notwithstanding,
the
Minister proceeded to consider the merits of the application. He found that the
six alleged unfair labour practices relied
6 upon by the respondents in
having declared their dispute with Da Gama had not been established. He also
held that it was not expedient
to establish a conciliation board.
In the
Court a
quo
there were also a number of technical points relied on by Da
Gama. They were dismissed and wisely not pressed upon us in this Court.
On
behalf of Da Gama only one issue was raised, viz the nature of the enquiry which
the Minister was enjoined to make in considering
an application under section 35
of the Act and, in particular, where unfair labour practices were relied upon.
That section was substantially
amended by the provisions of section 9 of Act 83
of 1988. In this appeal, however, we are concerned with the provisions of the
Act
as they read prior to their amendment. The provisions of subsection (4) of
section 35 are relevant for present purposes and in particular
the following
portion thereof:
7
"(4) If after considering the application and any representations submitted to
him by the other party or parties to the dispute ...
and any other matters which
he considers relevant, the Minister is satisfied
-
(a) that, except in the case of an
alleged unfair labour practice, a dispute exists in regard to any matter
concerning the relationship
between employer and employee; ...
he may, if he deems it expedient to do so ... or in the case of a dispute
concerning, in the Minister's opinion, an unfair labour
practice, he shall,
subject to the provisions or this section, approve of the establishment of a
conciliation board and cause the
necessary steps thereto to be
taken."
It follows from those
provisions that if in the Minister's opinion the dispute concerns an unfair
labour
8
practice he has no discretion and is obliged to establish a
conciliation board. Where he is of opinion that the
dispute does not concern an unfair labour practice he has a
discretion. He may establish a conciliation board if he
deems it expedient
to do so.
It appears from the reasons furnished by the
Minister that he understood the provisions of section 35(4)
as entitling
and obliging him to resolve factual disputes
relating to the proof of the
labour practices alleged by the
respondents. Only if he made a finding in
their favour
was he reguired to determine whether those practices
amounted
to "unfair labour practices" as defined in section
1 of the Act. The
Minister, in his reasons, said:
"Consequently I have to be of the opinion that an unfair labour practice is in
fact being followed by the employer and not merely
an
alleged
unfair
labour practice as is the case when the Industrial Court grants a
status
quo
order in terms of section 43."
9
After considering the representations of the respondents and Da
Gama respectively the Minister concluded that:
"The various allegations of unfair labour practices which were made by the
applicant were considered by me and after considering
the statements made by
both parties I concluded that none of the Company's actions could be regarded as
unfair labour practices.
In view of my conclusion in this regard I was not
obliged to approve of the establishment of a conciliation board but had to
consider
whether or not the establishment of such a board would be
expedient."
In deciding whether it was expedient to
establish a conciliation board the Minister again made findings of fact against
the respondents.
For example, he held that:
"In my opinion therefore the employees had acted in an improper manner which had
to a great extent contributed to the confrontation
between
the
10
parties. In my opinion it is not expedient to establish a conciliation board in
respect of a dispute which resulted largely from
the improper actions of an
employee."
In delivering the judgment of the Court a
guo
, Mullins J held that the Minister had misdirected himself in making
factual findings on issues which were in dispute and then deciding,
on the facts
found by him, that the respondents had not established that there were disputes
concerning unfair labour practices.
He said that:
"Had he not erred, he would, in my view, in the light of the subject matter of
the dispute, and the definition in the Act of 'unfair
labour practice',
inevitably have formed the opinion that the disputes raised on the papers
concerned unfair labour practices, which
finding would have required him to
grant the application for the establishment of a conciliation
board."
In this Court, counsel for Da
Gama supported the
11
approach of the Minister, ie that the provisions of section
35(4) obliged him to determine conflicts of fact in order to form an opinion
as
to whether a dispute concerned an unfair labour practice. He submitted that the
legislature could not have intended that a Cabinet
Minister be required merely
to form an opinion on so simple an issue as to whether or not the subject matter
of a dispute relates
to an unfair labour practice as defined in section 1 of the
Act.
In deciding what is meant by the words "a dispute concerning, in the
Minister's opinion, an unfair labour practice", regard should
be had to the
scheme of the Act and the place of section 35 in that scheme. The clear
intention of the legislature is that labour
disputes concerning unfair labour
practices should, if possible, be settled by agreement between the parties in
dispute. Where there
is an industrial council having jurisdiction in respect of
the dispute that is the body which, in the first
12 instance, is obliged to
endeavour to settle it. If there is no industrial council having jurisdiction,
the Minister may establish
a conciliation board and that body is obliged to
endeavour to settle the dispute. If the industrial council or the conciliation
board,
as the case may be, fails to settle the dispute, then the industrial
court must be approached to do so. Section 46(9) of the Act,
(prior to its
substitution by section 17(g) of Act 83 of 1988) provided that a dispute
concerning an unfair labour practice was to
be referred to the industrial court
for determination if an industrial council had jurisdiction in respect thereof
and failed to
settle it within the time specified, or if the dispute was
referred to a conciliation board and it failed to settle it within the
time
specified.
It follows that the first stage in the process of settling a dispute
concerning an unfair labour practice is the reference thereof
to an industrial
council and, if there
13 is not one having jurisdiction, to a conciliation board. Only if that
reference fails to bring about a settlement, is the dispute
to be referred for
determination by the
industrial court.
It is in section 35 of the Act that there are to be
found the provisions governing the Minister's approval for the establishment of
a conciliation board. As one would expect, he may only so approve where there is
no industrial council having jurisdiction in respect
of the matter in dispute:
section 35(4)(b). If the Minister is satisfied that a dispute exists in regard
to any matter concerning
the relationship between employer and employee and it
is
not
a dispute concerning an alleged unfair labour practice, he may
approve of the establishment of a conciliation board if he deems it
expedient to
do so. In the case of a dispute concerning, in the Minister's opinion, an unfair
labour practice he
shall
approve of the
14 conciliation board.
In the context of those provisions it would be
quite purposeless for the Minister to determine the merits of a dispute
concerning
an unfair labour practice. In the express words of section 46(9),
that is the function of the industrial court. Furthermore, such
a determination
by the Minister would be particularly inappropriate, if in favour of an
applicant, prior to the conciliation process
by a conciliation board. And, if
adverse to an applicant, that would for ever preclude the industrial court from
becoming seized
of the matter. Then, too, there would be the anomaly that if an
industrial council has jurisdiction the Minister would not be called
upon to
determine such a dispute: yet, where there is no such industrial council, the
Minister would be called upon to determine
the dispute prior to approving the
establishment of a conciliation board. That anomaly could not have been
contemplated by
15
the legislature.
It follows, in my judgment, that the
opinion which the Minister is called upon to form, in terms of section 35(4),
concerns the existence
of a dispute, the subject-matter of which is an unfair
labour practice as defined in section 1 of the Act. He is not called upon
or
entitled, in forming that opinion, to consider or determine factual or legal
disputes between the parties. This conclusion, in
harmony with the scheme of the
Act, is also consistent with the language of the section.
Counsel for Da Gama
accepted that in the present case the disputes, or at least some of them,
concerned or related to unfair labour
practices; and he conceded that if the
Minister was not entitled to determine the merits of the disputes the order of
the Court a
quo
should stand.
16
In the result the appeal is dismissed with
costs.
R J GOLDSTONE JUDGE OF APPEAL
HOEXTER JA)
HEFER JA)
FRIEDMAN JA) CONCUR
PREISS AJA)