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[2017] ZALCJHB 384
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South African Airways Technical SOC Limited v National Union of Mineworkers of South Africa and Others (J1795/17) [2017] ZALCJHB 384 (19 October 2017)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
reportable
Case
no: J 1795/17
SOUTH AFRICAN AIRWAYS TECHNICAL
SOC LIMITED
Applicant
and
NATIONAL UNION OF MINEWORKERS OF
SOUTH AFRICA
First
Respondent
MEMBERS
LISTED IN ANNEXURE “A” Second
to further Respondents
Decided:
In Chambers
Delivered: 19 October
2017
JUDGMENT-APPLICATION
FOR LEAVE TO APPEAL
PRINSLOO
.
J
Introduction
[1]
On 2
August 2017 the First Respondent (NUMSA) issued a strike notice
wherein the Applicant was notified that strike action in the
form of
a go slow would commence on 4 August 2017 and that the strike was in
respect of the following demands: that fair disciplinary
action be
taken against Nontsasa Memela, Princess Tshabalala, Chaile Makaleng,
Kevin Sampsons and Musa Zwane for alleged misconduct
related to
breach of company policies and that the said managers be suspended
while investigations would be pending against them.
[2]
The
Applicant subsequently approached this Court and in the urgent
application that was enrolled for hearing on 4 August 2017 the
Applicant sought an order
inter
alia,
declaring
the strike action by the Respondents, which was due to commence on 4
August 2017, non-compliant with the provisions of
section 64(1) of
the Labour Relations Act
[1]
(the Act) and for the said strike action to be interdicted and
restrained.
[3]
The
Applicant explained that NUMSA referred a mutual interest dispute to
the Commission for Conciliation, Mediation and Arbitration
(CCMA) on
23 August 2016. NUMSA’s demand was that implicated executives
be disciplined due to their failure to comply with
the Applicant’s
recruitment policy. After conciliation failed, the CCMA issued a
certificate on 27 September 2016. No strike
action followed and the
parties engaged in dialogue.
[4]
The
Applicant submitted that NUMSA appeared satisfied with the feedback
it received and no further action was taken to enforce their
demands.
[5]
Following
a newspaper article with respect to fraudulent transactions at the
Applicant and the South African Airways SOC Limited,
NUMSA demanded
that three executives be suspended pending investigations. NUMSA’s
demands were responded to on 19 June 2017
on the basis that the
investigation process into allegations of misconduct were still
pending and due process will take its course
once there is
prima
facie
evidence
of wrongdoing. In this communique NUMSA was urged to provide
information to the Applicant’s Board to assist with
the
independent investigation to ensure that the matter was resolved
expeditiously.
[6]
NUMSA
was not satisfied with the Applicant’s response and on 18 July
2017 it referred a mutual interest dispute to the CCMA.
NUMSA’s
demands included the fair suspension and fair disciplinary hearings
for allegations of misconduct for specified managers
and for an
independent chairperson to chair the said hearings.
[7]
The
dispute was scheduled for conciliation on 18 August 2017.
[8]
NUMSA
placed reliance on the certificate it obtained from the CCMA in
September 2016 and its case was that industrial action based
on the
2016 certificate was only put on hold to allow discussions between
the parties.
[9]
The
Applicant on the other hand submitted that the demands made in the
strike notice are similar to those forming the subject matter
of the
dispute that was referred in July 2017, which dispute was not yet
conciliated.
[10]
On 3
August 2017 the Applicant’s attorneys addressed a letter to
NUMSA wherein it was recorded that the intended strike action
was in
contravention of section 64 of the Act as a new mutual interest
dispute was referred and the dispute was not conciliated,
nor has the
30- day period elapsed since the referral of the dispute.
[11]
In
its answering affidavit, NUMSA submitted that the application was
based on the allegation that the go slow strike action scheduled
to
commence on 4 August 2017 related to the demands in the second
referral of July 2017. NUMSA’s case is that the strike
relates
to the demands referred to conciliation in 2016 and for which a
certificate was issued. NUMSA submitted that the Applicant
was
looking for any reason to frustrate their right to strike.
[12]
In
paragraph 5 of the answering affidavit NUMSA explained what their
demands were.
[13]
When
the matter was called in Court, Mr Mosam for the Applicant requested
that the matter stand down as he was trying to get instructions
and
he placed on record that there was a possibility that the parties
could agree to an order.
[14]
Mr
Mosam subsequently indicated that he was unable to get an instruction
at that point and the parties thereafter endeavoured to
reach a
settlement but could not agree on the terms of the agreement and the
matter proceeded to Court.
[15]
The
reality of this matter was this: if I were to agree with the
Applicant that the strike could not proceed before the second
referral was either conciliated or 30 days have elapsed from 18 July
2017, the strike action would be interdicted but the relief
would be
of a very limited duration as the dispute would have been conciliated
by 18 August 2017, where after the Respondents would
be entitled to
proceed with strike action. If, on the other hand, I were to agree
with the Respondents, this application had to
fail and they could
embark on a strike action. Neither of these options seemed to be in
the long term interest of any of the parties.
This is more so where
Mr Mosam agreed that the Respondents’ issue was a matter of
mutual interest and the Applicant’s
basis for seeking the
interdict was purely a procedural one and if NUMSA attended the
conciliation on 18 August 2017, a certificate
would be issued and
they would give 48 hours’ notice and exercise their right to
strike thereafter.
[16]
I
raised the question with Mr Mosam whether there was not a better way
to deal with the matter to ensure a longer term solution
to avoid a
situation where the Applicant’s operations would be affected
and the parties be back in Court in the near future.
[17]
Mr
Mosam referred to a memorandum issued by the Applicant in terms of
which it was evident that the employer’s view was that
insofar
as employees have committed misconduct, it will follow a fair
procedure in terms of the Act. Mr Mosam submitted that they
could not
agree on what the process should be but specifically submitted that
it was well within the purview of the Court to decide
such as the
Court has a wide enough discretion, looking at the papers, to make an
order the Court deemed just and equitable under
the circumstances.
[18]
I
specifically canvassed with Mr Mosam what was contained in paragraph
5 of the Respondents’ opposing affidavit and invited
him to
make submissions on the Respondents’ proposal that the alleged
misconduct be investigated. On this aspect Mr Mosam
submitted that
the Applicant’s position was that there are three
investigations being conducted at the moment, which are
independent
investigations done by independent bodies namely Open Waters, Ernst &
Young and Edward Nathan Sonnenbergs Inc.
(ENS).
[19]
Mr
Mosam submitted that in the event that allegations of misconduct come
to the fore, the employer is duty bound to take the necessary
disciplinary action in accordance with the principles of fairness and
the provisions of the Act, which may include the suspension
of the
employees.
[20]
I
raised the same question whether there was not a better way to deal
with the matter to ensure a longer term solution with Mr Daniels
for
the Respondents.
[21]
Mr
Daniels submitted that in terms of section 158(1)(a)(iii) of the Act
this Court has the power to grant an order directing the
performance
of any act which will remedy a wrong and give effect to the primary
objectives of the Act, one of which is the effective
resolution of
labour disputes. Mr Daniels argued that this Court has the power to
fashion an order that resolves the dispute between
the parties.
[22]
In
respect of the submissions made by Mr Mosam, Mr Daniels submitted
that insofar as there are current independent investigations
done,
the Respondents accept that those investigations would suffice for
the purpose of NUMSA’s demand but insofar as the
investigations
do not cover the scope of NUMSA’s disputes, the scope of the
investigations should be extended to include
those individuals. Mr
Daniels submitted that the Respondents would be satisfied if due
process is followed in respect of any disciplinary
hearing and if an
independent chairperson is appointed to chair those processes.
[23]
Mr
Daniels submitted that an order dealing with the said issues would
resolve the present strike action and the issues arising from
the
strike notice and the Respondents were prepared to withdraw the
strike notice and would call off the strike action.
[24]
In
reply, Mr Mosam submitted that he does not have instructions on the
appointment of an independent chairperson as that remains
the
employer’s prerogative. Mr Mosam specifically agreed with the
submissions made by Mr Daniels that this is a Court of
equity and
that I have a wide discretion in terms of how to fashion an order in
this regard.
[25]
It
was evident from the submissions made that the parties were not
opposed to an order been made to address the issues and to resolve
the matter.
[26]
After
the issues were canvassed and arguments presented, this Court handed
down the following order:
“
1.
The investigations currently conducted by Open Waters, Ernest &
Young and
Edward Nathan Sonnenburgs Inc are to include an
investigation into the conduct of Mr Musa Zwane, Mr Chaile Makaleng,
Ms Nontsasa
Memela and Ms. Princess Tshabalala in respect of the
alleged breach of company policies;
2.
The First Respondent should be afforded an opportunity to make
representations
to the investigators as named in paragraph 1;
3.
In the event that the investigations report
findings of misconduct; the Applicant must take appropriate action;
4.
The appropriate action to be taken by the Applicant must be compliant
with the
provisions of the
Labour Relations Act 66 of 1995
;
5.
The Applicant should appoint an independent advocate, who is
acceptable to the
parties, to chair any suspension or disciplinary
hearing that may follow as appropriate action being taken by the
Applicant after
the completion of the investigations;
6.
Should the parties be unable to agree on an
independent advocate as chairperson, they may approach the
chairperson of the Johannesburg
Bar;
7.
The First Respondent must withdraw the strike notice with immediate
effect;
8.
The First and Second to further Respondents must call off the strike
action with
immediate effect and they may
not
continue with any form of industrial action in respect of this
dispute”.
[27]
Surprisingly
the Applicant filed an application for leave to appeal against the
orders made in paragraphs 1 – 6 of the order
that was issued on
4 August 2017. The only orders the Applicant does not seek to appeal
are the ones ordering NUMSA to withdraw
the strike notice and to call
off the strike action.
[28]
NUMSA
agreed to an order that the strike action be called off on the
premise that the issues would be investigated and where necessary,
that disciplinary action be taken.
[29]
Effectively
the Applicant seeks to deprive the Respondents of their right to
strike, while the underlying dispute would remain unresolved
if leave
to appeal is granted.
[30]
The
basis upon which leave to appeal is sought is that I had no
jurisdiction to make the orders as set out in paragraphs 1 –
6
of the order, alternatively to the extent that the Court had
jurisdiction to issue the order under
section 158(1)(a)(iii)
of the
Act, I misdirected myself, alternatively erred in fact and in law for
a number of reasons.
[31]
The
application for leave to appeal is opposed.
[32]
Both
parties have filed submissions in respect of the leave to appeal. I
have considered the grounds for appeal as well as the submissions
made in support and in opposition thereof and I do not intend to
repeat those herein.
The
test for leave to appeal
[33]
It is
trite that an applicant in an application for leave to appeal must
convince the court
a
quo
that it has reasonable prospects of success on appeal. What the test
requires is the reasonable likelihood that another court,
presented
with the same facts and evidence as this Court, could come to a
different conclusion than the one arrived at by this
Court.
[34]
Appeals
should be limited to matters where there is a reasonable prospect
that the factual matrix could receive a different treatment
or where
there is some legitimate dispute on the law.
[35]
In
Seatlholo
and Others v Chemical Energy Paper Printing Wood and Allied Workers
Union and Others
[2]
this Court confirmed that the test applicable in applications for
leave to appeal is stringent and held as follows:
“
The
traditional formulation of the test that is applicable in an
application such as the present requires the court to determine
whether there is a reasonable prospect that another court may come to
a different conclusion to that reached in the judgment that
is sought
to be taken on appeal. As the respondents observe, the use of the
word “would” in
s17(1)(a)(i)
are indicative of a raising
of the threshold since previously, all that was required for the
applicant to demonstrate was that
there was a reasonable prospect
that another court
might
come to a different conclusion (see
Daantjie
Community and others v Crocodile Valley Citrus Company (Pty) Ltd and
another
(75/2008)
[2015] ZALCC 7
(28 July 2015). Further, this is not a test to
be applied lightly – the Labour Appeal Court has recently had
occasion
to observe that this court ought to be cautious when leave
to appeal is granted, as should the Labour Appeal Court when
petitions
are granted. The statutory imperative of the expeditious
resolution of labour disputes necessarily requires that appeals be
limited
to those matters in which there is a reasonable prospect that
the factual matrix could receive a different treatment or where there
is some legitimate dispute on the law (See the judgment by Davis JA
in
Martin
and East (Pty) Ltd v NUM
(2014) 35
ILJ
2399 (LAC), and also
Kruger
v S
2014
(1) SACR 369
(SCA) and the ruling by Steenkamp J in
Oasys
Innovations (Pty) Ltd v Henning and another
(C 536/15, 6 November 2015)”.
[36]
It is
evident that the threshold had been raised and that the test is not
be applied lightly.
[37]
In
deciding this application for leave to appeal, I am also guided by
the
dicta
of
the Supreme Court of Appeal where it held in
Dexgroup
(Pty) Ltd v Trustco Group
[3]
that
:
”
The
need to obtain leave to appeal is a valuable tool in ensuring that
scarce judicial resources are not spent on appeals that lack
merit.
It should in this case have been deployed by refusing leave to
appeal.”
Grounds
for leave to appeal
[38]
I
have read and considered the Applicant’s grounds for leave to
appeal and submissions made in support thereof as well as
the
Respondent’s submissions filed in opposition thereof. H
aving
considered those and applying the aforesaid principles applicable to
applications such as this one, I am not persuaded that
there are
reasonable prospects that the Labour Appeal Court would interfere
with the order issued by this Court, taking into consideration
the
arguments that were presented in Court.
[39]
I
have already indicated that I do not intend to repeat or address all
the grounds for appeal raised by the Applicant, but I have
considered
all of the grounds and in my view they are all without merit. To
illustrate that the application for leave to appeal
is without merit,
I will deal with some grounds for leave to appeal in detail.
[40]
The
Applicant’s main ground for leave to appeal is that I had no
jurisdiction to issue the orders I made in paragraphs 1-6
of the
order.
[41]
This
ground for leave to appeal is shockingly opportunistic in view of the
submissions made in open Court by the Applicant’s
own counsel.
Mr Mosam specifically submitted that
although
the parties could not agree on the process, it was well within the
purview of the Court to decide such as the Court has
a wide enough
discretion, looking at the papers, to make an order the Court deemed
just and equitable under the circumstances.
In reply Mr Mosam
specifically agreed with the submissions made by Mr Daniels and
agreed that this is a Court of equity and that
I have a wide
discretion in terms of how to fashion an order in this regard.
[42]
In
the Respondents’ submissions filed in opposition of the
application for leave to appeal it is submitted that at no point
did
the Applicant’s counsel argue that the Court has no
jurisdiction to make the order the parties alluded to or that
section
158(1)(a)(iii)
of the Act was not sufficiently broad to make the
order the Court made. In fact, the parties were in agreement
that the Court
had the jurisdiction and power to make the order that
was handed down.
[43]
In
view of the submissions made in Court, I find this ground for leave
to appeal opportunistic and without merit. I attach to this
judgment
a copy of the transcribed proceedings of 4 August 2017.
[44]
I
fail to understand how a litigant, through its instructed legal
representative, can agree to issues in an open Court and make
submissions in support thereof and then in the same breath approach
the Court with an application for leave to appeal the same
issues
that were agreed or not disputed in Court.
[45]
In
the alternative the Applicant’s case is that I misdirected
myself, alternatively erred in fact and in law for a number
of
reasons. I have considered the reasons put forward and I do not
intend to deal with each aspect as there is no merit in any
of them,
but to illustrate that it is without merit, I deal with some of the
aspects.
[46]
It is
the Applicant’s case that there was no factual foundation for
the orders or evidence justifying the orders. Furthermore,
the
Applicant was not afforded an opportunity to plead facts or consider
its position and its right to
audi
alteram partem
was
breached.
[47]
It is
evident from the transcribed record that Mr Mosam was afforded an
opportunity to take an instruction and to indicate whether
the
Applicant wanted to file a replying affidavit in answer to the
Respondents’ opposing affidavit. The Applicant elected
not to
file a replying affidavit but to proceed on the papers as they were
before Court. The parties also took time to discuss
the possibility
of reaching an agreement to settle the dispute. In Court Mr Mosam was
invited to make submissions on all the aspects
the parties knew this
Court would consider in making an order.
[48]
In
his argument Mr Mosam referred to a communique issued by the
Applicant and he submitted that the Applicant, on its own version,
was of the view that insofar as employees have committed misconduct,
it will follow a fair procedure in terms of the Act.
[49]
Mr
Mosam was invited to make submissions on the Respondents’
proposal that the alleged misconduct be investigated and he submitted
that the Applicant’s position was that there are three
investigations being conducted at the moment, which are independent
investigations done by independent bodies namely Open Waters, Ernst &
Young and Edward Nathan Sonnenburg Inc. (ENS).
[50]
Mr
Mosam submitted that in the event that allegations of misconduct come
to the fore, the employer is duty bound to take the necessary
disciplinary action in accordance with the principles of fairness and
the provisions of the Act, which may include the suspension
of the
employees.
[51]
In
view of the opportunity afforded to the Applicant’s counsel to
make submissions and the Applicant’s own version that
the
issues be investigated, that NUMSA was invited to bring information
on the issues and that insofar as employees have committed
misconduct, it is duty bound to take the necessary disciplinary
action in accordance with the provisions of the Act, it is
astonishing
that the Applicant alleges that there was no factual
foundation for the orders made and that its right to be heard was
breached.
[52]
The
orders this Court issued were informed by the submissions made in
Court and no party’s right to be heard was infringed
in the
process.
[53]
There
are no reasonable prospects that the Labour Appeal Court would arrive
at a different conclusion or that it
would
interfere with the order issued by this Court
and
scarce judicial resources should not be spent on an appeal that lacks
merit.
[54]
The
Respondents submitted that in view of what transpired in Court and
the grounds for leave to appeal as raised by the Applicant,
this
application constitutes and abuse of process and they seek the
dismissal of the application with costs on an attorney and
client
scale. However, no specific submissions were made as to why the cost
order should be granted on a punitive scale.
[55]
This
Court has a discretion in making a cost order, considering the
requirements of law and fairness.
[56]
In my
view this application is opportunistic and brought with the sole
purpose to avoid the obvious and unavoidable and to frustrate
the
Respondents.
[57]
I can
see no reason to deviate from the general rule that the cost should
follow the result.
[58]
In
the result I make the following order:
Order
1.
The
application for leave to appeal is dismissed costs.
_____________________
Connie Prinsloo
Judge
of the Labour Court
[1]
Act 66 of 1995 as
amended.
[2]
(2016) 37 ILJ 1485
(LC).
[3]
Unreported
judgment of the Supreme Court of Appeal (687/12)
[2013] ZASCA 120
(20 September 2013).