About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2017
>>
[2017] ZALCJHB 55
|
|
Plastics Convertors Association of South Africa (PCASA) and Others v Metal and Engineering Industries Bargaining Council (MEIBC) and Others (JR2282/2016) [2017] ZALCJHB 55 (21 February 2017)
THE
LABOUR COURT OF SOUTH AFRICA
JOHANNESBURG
Not reportable
Case no: JR 2282 /2016
In
the matter between:
PLASTICS
CONVERTORS ASSOCIATION OF
SOUTH
AFRICA (PCASA)
First Applicant
NATIONAL
EMPLOYERS’ ASSOCIATION OF
SOUTH
AFRICA (NEASA)
Second Applicant
and
METAL
AND ENGINEERING INDUSTRIES
BARGAINING
COUNCIL (MEIBC)
First Respondent
GENERAL
SECRETARY OF THE
MIBCO
N.O
Second Respondent
THE
MINISTER OF LABOUR
Third Respondent
NATIONAL
UNION OF METAL WORKERS
OF
SOUTH AFRICA (NUMSA)
Thirty
fourth Respondent
Heard:
10 February 2017
Delivered:
21 February 2017
JUDGMENT
PRINSLOO
J
Introduction
[1]
The Registration and
Administration Expenses Collective Agreement (‘the Agreement’)
was concluded under the auspices
of the First Respondent (MEIBC). The
MEIBC requested the Third Respondent (the Minister) to extend the
Agreement in terms of section
32 of the Labour Relations Act
[1]
(LRA). The decision by the MEIBC to request the Minister to extend
the agreement is the subject of a pending review application,
filed
under case number JR 2282/16.
[2]
On 6 January 2017 the
Applicants filed an urgent application wherein they sought an order
directing that the review application
be argued forthwith on 9
January 2017, and that the Minister be interdicted from acceding to
the MEIBC’s request to extend
the Agreement pending judgment in
the review application. In the alternative, the Applicants sought a
preferential date for the
hearing of the review application and an
order interdicting the Minister from extending the agreement pending
judgment in that
application. The urgent application was postponed to
24 January 2017.
[3]
On 24 January 2017 I made the
following order in the urgent application:
1.
The
review application under case number JR 2282/16 is enrolled for
hearing on 10 February 2017;
2.
The
Respondents are directed to file opposing affidavits or supplementary
affidavits by close of business on 31 January 2017;
3.
The
Applicants are to file a replying affidavit, if any, by no later than
close of business on 3 February 2017;
4.
All
parties are directed to file heads of argument by close of business
on 3 February 2017;
5.
The
Third Respondent is not to take any decision on the request for
extension pending the finalization of the review application.
[4]
On 25 January 2017 the
thirty-fourth respondent’s (NUMSA) attorneys of record
requested reasons for the above order and the
reasons were made
available to the parties on 3 February 2017.
[5]
On 31 January 2017 NUMSA filed
a recusal application indicating that it would apply, on 10 February
2017, for my recusal from hearing
the review application.
[6]
The Applicants opposed the
recusal application.
The recusal application
[7]
In its founding affidavit,
NUMSA has set out the background to the urgent application that was
postponed to 24 January 2017 in order
to give the parties an
opportunity to serve and file answering and replying papers. The
postponement was agreed to in the context
that the Department
undertook not to make its recommendation to the Minister regarding
the extension of the Agreement until 25
January 2017.
[8]
NUMSA’s case as set out
in the founding affidavit in support of the recusal application is
that:
8.1.
It did not agree to an
expedited hearing of the review application and the Court order
wherein the matter was enrolled for hearing
on an expedited basis,
was not made with the agreement of the parties.
8.2.
The matter was not heard in
open Court and NUMSA’s officials were excluded from observing
the hearing of the application,
thus justice was not seen to be done
and the ‘lack of transparency was most upsetting’.
8.3.
NUMSA’s counsel was not
afforded an opportunity to take instructions regarding the proposal
to expedite the review application.
8.4.
NUMSA’s counsel requested
to make submissions in open Court about the Minister being prevented
from considering the extension
request pending the review
application’s expedited hearing and this request was not
entertained, wherefore NUMSA’s
right to be heard was denied.
8.5.
Advocate Maenetje SC offered to
make submissions on the matter notwithstanding the Minister’s
intention to abide by the Court’s
decision and this was not
taken up.
8.6.
The Court order of 24 January
2017 in essence granted the Applicants the relief they sought and
NUMSA has a reasonable apprehension
of bias because the order was
made without hearing NUMSA’s submissions and justice was not
seen to be done.
8.7.
NUMSA has a reasonable
apprehension of bias due to the lack of transparency, the denial of
NUMSA’s legal representative to
take instructions, the denial
of NUMSA’s right to be heard in open Court and my failure to
consider or properly consider
NUMSA’s submissions about matters
of substantial legal complexity.
[9]
In opposing the application for
recusal the Applicants submitted that NUMSA has not pleaded any
facts, if proven, capable to illustrate
a reasonable apprehension
that I would not be impartial when the review application, set down
for 10 February 2017, was to be argued.
The Applicants stated that
the Court does not require NUMSA’s consent to issue directives
or to make orders. NUMSA was not
prejudiced in any way as it was
granted an opportunity to file an answering affidavit in the review,
which affidavit was already
due in November 2016, but had not been
filed as at 24 January 2017.
[10]
The Applicants also submitted
that the primary relief in the urgent application was sought against
the Minister who agreed to an
expedited review and showed deference
to the Court and abided by the decision. Urgent proceedings of this
nature, where directions
are sought for the continuance of court
proceedings, are habitually dispensed with in chambers and there is
nothing sinister with
the practice, particularly under circumstances
where the parties were represented by counsel in attendance.
[11]
The Applicants argued that the
recusal application is misconceived and that no reasonable person
could apprehend that my decision
was indicative of bias in any shape
or form.
[12]
NUMSA filed a replying
affidavit in answer to the averments made by the Applicants. NUMSA
repeated that it has a reasonable suspicion
of bias because the Court
order of 24 January 2017 was made without NUMSA’s submissions
being heard in open Court.
[13]
When the matter was argued on
10 February 2017, Mr van der Riet SC on behalf of NUMSA and Mr
Redding SC on behalf of the Applicants
made submissions and both
referred to
President of the
Republic of South Africa and others v South African Rugby Football
Union and others (SARFU)
[2]
wherein the Constitutional
Court formulated the proper approach to recusal applications.
The legal principles
[14]
The test for recusal of a
judicial officer was first decided in
SARFU
and the Constitutional
Court formulated the proper approach as follows:
"The
question is whether a reasonable, objective and informed person would
on the correct facts reasonably apprehend that the
judge has not or
will not bring an impartial mind to bear on the adjudication of the
case, that is a mind open to persuasion by
the evidence and the
submissions of counsel. The reasonableness of the apprehension must
be assessed in the light of the oath of
office taken by the judges to
administer justice without fear or favour; and their ability to carry
out that oath by reason of
their training and experience. It must be
assumed that they can disabuse their minds of any irrelevant personal
beliefs or predispositions.
They must take into account the fact that
they have a duty to sit in any case in which they are not obliged to
recuse themselves.
At the same time, it must never be forgotten that
an impartial judge is a fundamental prerequisite for a fair trial and
a judicial
officer should not hesitate to recuse herself or himself
if there are reasonable grounds on the part of the litigant for
apprehending
that the judicial officer, for whatever reasons, was not
or will not be impartial."
[15]
In
SACCAWU
and others v Irvin and Johnson Ltd (Seafoods Division Fish
Processing)
[3]
the
SARFU
test
for recusal was elaborated on in detail and the Constitutional Court,
with reference to
SARFU
,
held that:
“
Some
salient aspects of the judgment merit re-emphasis in the present
context. In formulating the test in the terms quoted above,
the court
observed that two considerations are built into the test itself. The
first is that in considering the application for
recusal, the court
as a starting point presumes that judicial officers are impartial in
adjudicating disputes. As later emerges
from the Sarfu judgment, this
in-built aspect entails two further consequences. On the one hand, it
is the applicant for recusal
who bears the onus of rebutting the
presumption of judicial impartiality. On the other, the presumption
is not easily dislodged.
It requires "cogent" or
"convincing" evidence to be rebutted.”
[16]
The Court in
SARFU
alluded to the double requirement of reasonableness that the
application of the test imports. Not only must the person
apprehending
bias be a reasonable person, but the apprehension itself
must in the circumstances be reasonable. This two-fold aspect finds
reflection
also in
S v
Roberts
[4]
,
decided shortly after
SARFU
,
where the Supreme Court of Appeal required both that the apprehension
be that of the reasonable person in the position of the
litigant and
that it be based on reasonable grounds.
[17]
The two-fold emphasis
underscores the weight of the burden resting on a person alleging
judicial bias. The Constitutional Court
held that the threshold for a
finding of real or perceived bias is high since it calls into
question an element of judicial integrity.
[18]
The "double"
unreasonableness requirement also highlights the fact that mere
apprehensiveness on the part of a litigant
that a judge will be
biased - even a strongly and honestly felt anxiety - is not enough.
The court must carefully scrutinize the
apprehension to determine
whether it is to be regarded as reasonable. In adjudging this, the
court superimposes a normative assessment
on the litigant's
anxieties.
Analysis
[19]
NUMSA’s case is
essentially that it has a reasonable suspicion of bias because the
Court order of 24 January 2017 was made
without NUMSA’s
agreement, without NUMSA’s submissions being heard in open
Court, NUMSA’s counsel was not afforded
an opportunity to take
instructions regarding the proposal to expedite the review
application and to make submissions on matters
of substantial legal
complexity.
[20]
As already mentioned, I have
provided reasons for the Court order that was issued on 24 January
2017 and I do not intend to repeat
those. However, it is necessary to
give context to the order that was issued in dealing with this
application for recusal.
[21]
The Court order was issued in
the following circumstances: the Applicants filed a review
application, wherein the lawfulness of
the MEIBC’s request to
the Minister to extend the Agreement is challenged, and in the urgent
application they effectively
sought for the Minister not take a
decision on the request for extension until the pending review
application is decided, as the
outcome of the review application will
determine the way forward. If the Minister takes a decision pending
the review, the review
application may become moot and another review
application is likely to be filed.
[22]
It became apparent to me that
the pending review application should be expedited as that would
dispose of the challenge to the lawfulness
or not of the request for
extension of the Agreement and it was evident to me that the most
effective way to deal with the matter
was to have the review
application heard on an expedited basis. Judgment in the review
application would dispose of the matter
in its entirety, as the
parties would then know whether the request for extension was lawful
or not. If the review is expedited,
the Minister has to wait for a
short while to know the outcome and in the event that the review
application fails, she can proceed
to take her decision on the
request for extension.
[23]
If the urgent application
proceeded, the Court would be faced with the real likelihood of a
duplication of proceedings, and the
consequent unnecessary waste of
costs and resources. An order that the hearing of the pending review
application be expedited would
obviously avoid a duplication of
proceedings and would ensure an expeditious resolution of the pending
dispute concerning the lawfulness
of the request by the MEIBC to the
Minister to extend the Agreement.
[24]
Without any consideration of
the merits of the pending review application and in view of the
relief sought by the Applicants in
the urgent application, and having
regard further to the submissions made by the Respondents in their
heads of argument, I considered
that hearing the urgent application
in isolation of the review application (which was not ripe for
hearing on 24 January 2017)
would amount to dealing with the matter
on a piecemeal basis and would not dispose of the matter finally. I
considered that a preferable
approach would be to expedite the
hearing of the main matter (i.e. the review application) and dispose
of it.
[25]
The enrollment of the review
application on an expedited basis accommodated the interests of all
parties in certainty and finality.
The Minister as the party against
whom the Applicants primarily sought relief, did not object to the
order granted by this Court.
No relief was sought against NUMSA in
the urgent application and I failed to see how NUMSA can object to an
order where the primary
party against whom relief was sought, agreed
to the terms of the order. In view of the Minister’s position
and the arrangement
for an expedited hearing date that was acceptable
to the Minister, I did not consider it necessary for the urgent
application to
be argued and for NUMSA to make submissions in the
urgent application as to why the Minister should not be restrained,
when the
Minister did not object thereto.
[26]
Furthermore, I have made it
clear to the parties that I will deal with the review in an expedited
manner and undertook to expedite
the delivery of a judgment in the
matter. The Minister is restrained from taking a decision pending the
finalization of the review
application, which application will be
finalized when judgment in the review application is handed down. The
intention was to hear
the review application on 10 February 2017 and
to hand down judgment soon thereafter, thus the restraint will be of
a very limited
and brief duration.
[27]
It was further made clear and
is clear from the Court order that the parties were directed to file
opposing affidavits and heads
of argument to ensure that all the
facts are placed before Court and that all the parties have the
opportunity to state their case
in the main application. NUMSA, as
any other party in the review application, would be afforded a full
opportunity to argue its
case and to make submissions in open Court
when the main application is heard.
[28]
This is the context within
which the order was granted and within which the main application is
to be dealt with.
[29]
I have to consider the
application for recusal and the grounds for recusal against the test
set out in
SARFU.
[30]
NUMSA failed to place any
cogent or convincing evidence before me to show that a reasonable,
objective and informed person would
on the correct facts, as I have
set out the circumstances in which the order was granted and why
arguments by NUMSA were not heard
in open Court, reasonably apprehend
that I have not or will not bring an impartial mind to bear on the
adjudication of the case.
[31]
The context within which the
order was granted must be considered and that does not indicate that
I would not bring a mind open
to persuasion by the evidence and the
submissions in deciding the main application. The order was granted
without any consideration
of the merits of the pending review
application and the review application will be decided on its own
merits, based on the papers
filed and the submissions to be made by
the parties.
[32]
In the absence of cogent and
convincing evidence that NUMSA’s anxiety amounts to a
reasonable apprehension about my partiality
based on my conduct, I am
not satisfied that NUMSA has made out a case for my recusal. NUMSA
has not met the standard for rebutting
the presumption of judicial
impartiality. I am fortified in this conclusion by the fact that if I
were to grant the application
on the basis advanced by NUMSA, more
particularly that the matter was enrolled on an expedited basis
without NUMSA’s consent,
then on any occasion where a matter is
enrolled without the consent of a party or without hearing
submissions in an open Court,
the prospect of a recusal application
would arise. This would no doubt lead to regular disruption and
unnecessary prolongation
of proceedings.
[33]
In the light of the aforesaid
considerations, the recusal application should fail.
[34]
In the premises I make the
following order:
Order
1.
The
recusal application is dismissed;
2.
There
is no order as to costs;
3.
The
Registrar is directed to enrol the review application for hearing on
an expedited basis.
______________
Connie Prinsloo
Judge
of the Labour Court
Appearances:
For
the Applicant:
Advocate
A Redding SC
Instructed
by:
Anton Bakker Attorneys
For
the Thirty fourth
Respondent:
Advocate H van der Riet SC
with Advocate M Maenetje SC
Instructed
by:
Haffegee Roskam Savage Attorneys
[1]
Act 66 of 1995.
[2]
1999(4) SA 147 (CC).
[3]
2000(3) SA 705 (CC), (2000) 21 ILJ
1583 (CC)
[2000] ZACC 10
; ,
2000 (8) BCLR 886
(CC) at paras 12 – 17.
[4]
1994 (4) SA 915
(SCA)