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1992
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[1992] ZASCA 28
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South African Allied Workers Union (In Liquidation) and Others v De Klerk NO and Another (518/90) [1992] ZASCA 28; 1992 (3) SA 1 (AD); [1992] 4 All SA 523 (AD); (1992) 13 ILJ 1123 (A) (13 March 1992)
518/90 N v H
THE SOUTH AFRICAN ALLIED WORKERS
UNION (IN LIQUIDATION) AND 99
OTHERS
Appellants
and
ADVOCATE P P DE KLERK N 0
First
Respondent
and
COLLONDALE CONSUMER PRODUCTS (PROPRIETARY) LIMITED
Incorporating
HOOVER (FORMERLY
KNOWN AS HOOVER SA
(PROPRIETARY)
LIMITED
Second Respondent
518/90
N v H
IN THE SUPREME COURT OF SOUTH AFRICA
(
APPELLATE DIVISION
)
In the matter between:
THE SOUTH AFRICAN ALLIED WORKERS
UNION (IN LIQUIDATION) AND 99
OTHERS
Appellants
and
ADVOCATE P P DE KLERK N O
First
Respondent
and
COLLONDALE CONSUMER PRODUCTS (PROPRIETARY) LIMITED
Incorporating
HOOVER (FORMERLY
KNOWN AS HOOVER SA
(PROPRIETARY)
LIMITED
Second Respondent
CORAM
: BOTHA, VAN HEERDEN,
SMALBERGER, F H GROSSKOPF, JJA,
et
NICHOLAS, AJA
HEARD
: 20 FEBRUARY 1992
DELIVERED
: 13 MARCH 1992
JUDGMENT
SMALBERGER, JA:
The first appellant is the South African
Allied Workers Union (in liquidation). The other
/2
2
appellants are all former employees of the second respondent. They together
with certain other employees were summarily dismissed
from their employment on
31 August 1987. The vast majority of those dismissed were at the time members of
the South African Allied
Workers Union ("the SAAWU"). Consequent upon their
dismissal they sought orders of reinstatement in the industrial court, alleging
that their dismissal constituted an unfair labour practice in terms of the
Labour Relations Act 28 of 1956 ("the Act"). The SAAWU
was a co-applicant.
During the course of the hearing in the industrial court, which was presided
over by the first respondent, the
second respondent agreed to reinstate eleven
of the employees. The application for reinstatement by the remainder was
eventually
dismissed by the first respondent. Review proceedings were
subsequently launched in the
/3
3 Eastern Cape Division with a view to having the decision of
the first respondent set aside. At the same time an order was sought
declaring
their dismissal by the second respondent an unfair labour practice and ordering
the second respondent to reinstate them
in their employment. The SAAWU was a
party to the application. The second respondent opposed the application while
the first respondent
abided by the decision of the court. The matter came before
JANSEN J. He dismissed the review application with costs, including the
costs of
a previous postponement. He subseguently granted leave to appeal to this Court
against the whole of his judgment and order.
The judgment of the learned judge a
quo
in respect of the review proceedings is reported at 1990(3) SA 425
(E) ("the judgment").
/4
4 Subsequent to leave to appeal being granted the SAAWU was
placed in liquidation. At the commencement of the proceedings in this
Court an
application to substitute for it the South African Allied Workers Union (in
liquidation) as the first appellant was granted
by consent. There was also
considerable confusion as to the precise identity of the remaining appellants
before us. It appeared that
not all the applicants in the court a
quo
(about whom there was also some uncertainty) who had been granted leave to
appeal had persisted in their appeal. The parties have
now reached agreement as
to who the remaining appellants before us are. They number 99 and their names
appear from two lists filed
with the registrar of this Court. For the sake of
convenience the first appellant will be referred to as "the Union", the
remaining
appellants as "the appellants" and the
/5
5 second respondent as "Hoover".
It is common cause that,
after being granted leave to appeal, the Union and the appellants did not comply
with the Rules of the Appellate
Division relating to the prosecution of appeals
in that they failed to lodge timeously (1) the notice of appeal with the
registrar
of this Court; (2) their powers of attorney to prosecute the appeal;
and (3) the record of the appeal. They now seek condonation
of their failure to
do so. To this end they have filed a petition in which their attorney, Mr
Matlala, seeks to explain why the time
limits laid down by the Rules were not
complied with.
Hoover opposed the application for condonation. Mr Gauntlett,
who appeared for Hoover, contended that there was no satisfactory explanation
for what he claimed amounted to a flagrant non-
/6
6
compliance with the relevant Rules. He further
contended that the petition
failed to address
adequately the question of prospects of success, as
it
was required to do. In this regard he relied on
what was said in
Rennie v Kamby Farms (Pty) Ltd
1989(2) SA 124 (A) at 131 D - E. He
accordingly
submitted that this was an appropriate case for refusal
of condonation
without an enquiry into the prospects of
success on the merits of the appeal (Cf
Rennie's
case at 131 I-J;
Ferreira v Ntshingila
1990(4) SA 271 (A) at 281 J - 282 A).
In the passage in
Rennie's
case referred to
by Mr Gauntlett HOEXTER JA, with reference to
Meintjies v H D Combrinck
(Edms) Bpk
1961(1) SA 262 (A)
at 265 C, said the following:
'Where application is made for condonation of an appellant's failure to lodge
the record timeously it is advisable (more particularly
where, as in the present
case, the
/7
7
explanation is palpably wanting) that the petition should set forth briefly and
succinctly such essential information as may enable
the Court to assess the
appellant's prospects of success.'
(See too
Moraliswani v Mamili
1989(4) SA 1 (A) at
10 D - E.) In construing this
passage it must be
borne in mind that when
Meintjies's
case was
decided a
different procedure applied from that which pertains at
present.
The general rule was for applications for
condonation to be heard separately
without the full
appeal record being either required or available.
Now the
practice is to set down an application for
condonation of the kind under
consideration at the same
time as the hearing of the appeal. This Court
will
therefore always have available to it, and will have
studied, the
judgment of the court below, the heads of
argument and indeed the full appeal
record. From
these documents the prospects of success or otherwise
/8
8
will be reasonably apparent. While, as stated in
Rennie's
case, it is
"advisable" that the prospects of success should be dealt with in the petition
for the instruction and assistance of
the court generally, a failure to do so
will not necessarily be fatal. Each case will depend on its own facts. The
emphasis is on
the need to set forth essential information "briefly and
succinctly" i e without verbosity or argument. This could include, in
appropriate
cases, a reference to documentation available to the court. It is
not reguired to deal at length in a petition with the prospects
of success; the
overloading of petitions with unnecessary discursiveness should be
discouraged.
The present petition alleges that there are reasonable prospects of success
on appeal, and refers to an annexed copy of the notice
of application for
/9
9 leave to appeal which sets out in reasonable detail the
points in issue in respect of which it is claimed that reasonable prospects
of
success exist. This coupled with ready access to the judgment a
quo
and
the heads of argument in the appeal is sufficient in the present matter to
satisfy the requirements relating to an allegation
of reasonable prospects of
success.
Notwithstanding the failure to comply with the Rules in the respects
mentioned, and the generally unsatisfactory nature of the explanation
for such
failure, this is not the type of case where the non-observance of the Rules has
been so flagrant, or the application for
condonation is so unworthy of
consideration, that we would be justified in dismissing the application
irrespective of the prospects
of success. It therefore becomes necessary to
consider whether reasonable prospects of success exist.
/10
10 If they do, the application should be granted; if not, it
should be refused.
The judge a
quo
held, for reasons which appear from
the judgment (1990(3) SA at 429 H -437 C), that only one of the appellants, Mr
Elliot Dikimolo,
(being the person who attested the affidavit in support of the
review proceedings) had
locus standi
(in the sense of being properly
before the court). He further held, on the merits of the application, that it
had not been shown that
the first respondent's determination was grossly
unreasonable (at 440 H). In view of the conclusion to which I have come on the
merits
it is not necessary to consider the judge a
guo's
findings in
respect of the
locus standi
issue. That being so, no view is expressed in
regard to them. The failure to do so must not in any way be construed as
approval of
such findings or the reasons for them.
/11
11
The facts that led to the dismissal of the appellants, as found by the first
respondent, are set out succinctly in the judgment at
439 B - G. These facts may
be briefly summarised as follows. The workers at Hoover's factory (including the
appellants) refused to
work on 24 and 25 August 1987 in order to compel
compliance with certain wage demands. It is common cause that their conduct in
this
regard amounted to an illegal strike. They agreed to return to work on 26
August while negotiations between their representatives
and Hoover's management
continued. However, they resorted to a "go slow" and an overtime ban. On 27
August, when Hoover refused to
continue negotiations under those conditions,
they again went on strike. The strike continued the next day. On that day the
striking
workers each received in their pay packets a letter written in both
Xhosa and English
/12
12
informing them that if they failed to resume normal work on Monday 31 August,
they would be summarily dismissed. They nevertheless
persisted with their
illegal strike on the Monday. In the course of the day two meetings were held
between the workers' representatives
and Hoover's management. At the second of
these it was agreed that the workers would resume work at 14:00, as insisted
upon by their
representatives. This meeting concluded at 13:55. Despite the
agreement the workers failed to return to work. Instead they gathered
outside
the factory premises. Eighteen workers who wanted to resume work, and actually
returned to their work stations, were intimidated
or persuaded to return to the
gathering. (Amongst these were the eleven who were later reinstated.) Wheh by
15:00 the workers had
not yet resumed work the factory gates were closed and
/13
13
the workers dismissed. Shortly afterwards the workers arrived at the gates
saying they wanted to return to work. They were refused
entry. Mr Unterhalter,
who appeared for the Union and the appellants, did not challenge these factual
findings.
It appears from the evidence of Mr Ashdown, Hoover's general
manager, that he appreciated the need for some report-back meeting, which
would
have made it virtually impossible for the workers to return to work punctually
at 14:00. He therefore determined in his own
mind to stay his hand and allow the
workers until 15:00 to return to work, failing which they would be dismissed. He
did not, however,
inform them to that effect. The eighteen workers to whom I
have referred returned to their work stations at approximately 14:20.
There
seems to be no reason why the remaining workers could not have done likewise had
they so wished.
/14
14 The only ground on which it was sought to review the
decision of the first respondent in the court a
quo
was that of gross
unreasonableness. It is common cause that for the appellants to have succeeded
on that ground it would have been
necessary for them to show that the first
respondent had failed to apply his mind to the matter before him in the sense
outlined
in
Schoch NO & Others v Bhettay & Others
1974(4) SA 860
(A) at 865 G - 866 G. The nub of Mr Unterhalter's contention in this regard was
that the appellants were unfairly affected
by Ashdown's decision to close the
factory gates at 15:00 and dismiss the workers without prior warning to them
that 15:00 was the
deadline by which they had to return to work. He submitted
that the first respondent had disregarded this fact and that his failure
to do
so was grossly unreasonable to so striking a degree as to warrant the
/15
15 inference that he had not applied his mind to the
question of whether their dismissal constituted an unfair labour practice in
terms of the Act. Interference with his decision on review was accordingly
justified.
There is in my view no merit in Mr Unterhalter's contentions. It
is true that the first respondent did not in his written reasons
specificially
address Ashdown's failure to communicate with the workers and warn them that
they would be dismissed if they did not
return to work by 15:00. But the matter
did exercise his mind and he was alive to the significance and possible
conseguence of Ashdown's
failure in this regard. This is apparent from one of
the exchanges which took place between the first respondent and the appellant's
counsel during the course of argument at the conclusion of the hearing
/16
16 (which was recorded and forms part of the appeal record).
The reason why the first respondent did not later allude thereto would
appear to
be that he concluded that the workers (including the appellants) reneged on the
agreement and refused to return to work
a conclusion he was entitled to come to
on the facts he found proved and one we cannot interfere with on review. They
therefore persisted
with their illegal strike action right up to the time of
their dismissal. In the circumstances no significant weight can be attached
to
Ashdown's failure to inform the workers that he would dismiss them if they
failed to resume work by 15:00. His failure to do so
in the prevailing
circumstances could not, and did not, render his dismissal of them an unfair
labour practice.
On the first respondent's factual findings, by which we are
bound, Hoover was, both in law and
/17
17 fairness, entitled to dismiss the appellants when it did.
Mr Unterhalter conceded that Hoover would have been entitled to dismiss
the
appellants summarily on the Monday morning for continuing with their illegal
strike. The concession was correctly made. The workers
had persistently breached
their obligation to work. They had been warned of the conseguences of their
continuing to do so. The illegality
of their conduct, as the facts indicate, was
material and not merely technical. Dismissal in the circumstances would not have
amounted
to an unfair labour practice in terms of the Act, The agreement reached
between workers and management at 13:55 that the workers
would resume work at
14:00 amounted to an election by management not to dismiss them provided they
returned to work (cf
Administrator, Orange Free State, and Others v
Mokopanele and Another
1990(3) SA 780 (A) at
/18
18
787 E -F). Had the appellants returned to work as agreed Hoover would not
have been entitled to dismiss them. However, when they failed
to return to work
the position reverted to what it had been before the agreement was reached. By
refusing to return to work the appellants
deliberately chose not to honour the
agreement and to continue with their illegal strike. If, as was conceded, Hoover
was entitled
to dismiss them in the morning, it was egually entitled to do so
then. By the time the appellants presented themselves at the factory
gates they
had been lawfully and fairly dismissed. There was no legal obligation on the
part of Hoover to reinstate them.
The judge a
quo
held that the first respondent had failed properly to
apply his mind to the case of four of the applicants before him (of whom three
are appellants, one not having appealed) and that
/19
19
but for his finding of absence of
locus standi
he would have come to
their assistance (at 441 D - E). His reasons for coming to this conclusion
appear from the judgment at 440
I - 441 D. The three appellants in question were
part of the group of eighteen workers who attempted to resume their employment
at
14:20. As I have mentioned, the evidence was that the eighteen persons
concerned were intimidated or persuaded to return to the gathering
of workers
outside the factory gates. Eleven of these workers were subsequently re-employed
by Hoover presumably on the basis that
they had throughout been unwilling
participants in the continued strike action.
In my view no grounds exist which would have entitled the judge a
quo
to interfere on review with the first respondent's findings in respect of the
three appellants in question. Those findings are fully
/20
20
supported by the evidence and other events. The three appellants testified at
the industrial court proceedings. They did not attempt
to place themselves in a
different category from the other appellants. They denied that they had been
intimidated. They associated
themselves fully with the other appellants and gave
what was held to have been false evidence on their behalf. From this it may be
inferred that prior to their dismissal they had aligned themselves with the
workers who refused to return to work. For this reason
alone there was no ground
for differentiating between them and the remaining appellants. But in addition,
(and this the judge a
quo
clearly overlooked), the first respondent was
specifically requested during argument by the legal representative of the
appellants
concerned not to treat them differently from the remaining
/21
21
appellants. That being so the first respondent can hardly now be faulted for
having treated them on an equal footing.
In the result there were no valid
grounds on which the decision of the first respondent could have been reviewed,
ahd conseguently
no reasonable prospects of success on appeal. It follows that
the application for condonation falls to be dismissed, with costs.
The costs to
be borne by the Union and the appellants will include Hoover's costs of appeal,
as counsel for Hoover came to court
to argue not only the application, but also
the appeal (Cf
Rennie's
case (
supra
) at 132 C - D).
There are
two further matters that require mention. In terms of the order of the court a
quo
the Union and the appellants were ordered to pay the costs occasioned
by the postponement on 1 February
/22
22
1990. This was done on the basis of an alleged concession by Mr Unterhalter.
Mr Gauntlett very properly accepted Mr Unterhalter's
assurance that no such
concession had been made by him, and that the judge a
quo
was mistaken in
this regard. The application for postponement came before MULLINS J. It is not
necessary to traverse the facts that
gave rise to the application - guite
clearly the conduct of both sides contributed to the need for a postponement.
Suffice it to
say that after hearing argument and considering the matter MULLINS
J expressed the
prima facie
view that in the proper exercise of his
discretion he should make no order as to costs. He was, however, concerned about
the question
whether, in view of the amendment of the Act by Act 83 of 1988, the
court had jurisdiction to entertain review proceedings. This
caused him to
/23
23
reserve the question of costs for the decision of the court determining such
proceedings. In the circumstances the parties were agreed
in argument before us
that whatever the outcome of the condonation application (and, if necessary the
appeal) the order of the court
a
quo
should be altered to reflect no
order as to costs in respect of the postponement of 1 February 1990. Mr
Unterhalter quite rightly
did not contend that any such alteration entitled the
Union and the appellants to any costs in this Court. In the court a
quo
the parties were ad
idem
that the court's review jurisdiction had not
been ousted by the amendments brought about by Act 83 of 1988 which,
inter
alia
, established a Labour Appeal Court with circumscribed review
jurisdiction (see the judgment at 428 D). They apparently accepted as
correct
the views expressed by FRIEDMAN J in
/24
24
Photocircuit SA (Pty) Ltd v De Klerk NO and De Swardt
NO
and Others
1989(4) SA 209 (C) at 214 E to 216 I.
(The decision
in the
Photocircuit
case has since been partly reversed by this Court -
see 1991(2) SA 11 (A),
but not on the issue of jurisdiction, which is not
touched upon in the judgment). The parties persisted in this approach before us
notwithstanding the contrary decision arrived at by HARMS J in
Paper,
Printing, Wood and Allied Workers Union v Pienaar NO and Others
1991(2) SA
46 (T). In that case HARMS J held that the Supreme Court no longer has
jurisdiction to review the proceedings of industrial
courts. The judgment,
however, contains no reference to FRIEDMAN J's earlier reported judgment in the
Photocircuit
case. In view of our decision to refuse condonation we are
not called upon to consider the appeal in this matter. It is therefore
unnecessary
/25
25
to decide whether the court a
quo
had jurisdiction to entertain the
review proceedings before it.
In the result the following order is
made:
1.
The application for condonation is dismissed, with costs, such costs
to include the second respondent's costs of appeal and the costs
of two
counsel;
2.
The order of the court a
quo
directing the appellants (appli= cants) to pay the costs caused by the
postponement of 1 February 1990 is set aside and the following
order is
substituted
"No order is made as to the costs of the
postponement of 1 February 1990".
J W SMALBERGER JUDGE OF APPEAL
BOTHA, JA )
VAN HEERDEN, JA )
FH GROSSKOPF, JA ) CONCUR
NICHOLAS,
AJA )