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[1990] ZASCA 109
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South African Textile & Allied Workers' Union and Others v Skipper International (Pty) Ltd (140/89) [1990] ZASCA 109; 1990 (4) SA 842 (AD); (1991) 12 ILJ 39 (A) (27 September 1990)
Case No. 140/89 whn
SOUTH AFRICAN TEXTILE &
ALLIED WORKERS' UNION
First
Appellant
ELIZABETH MBAMBO & 20 OTHERS
2nd - 22 Appellants
and
SKIPPER INTERNATIONAL (PTY) LTD
Respondent
JOUBERT
, ACJ.
IN THE SUPREME COURT OF SOUTH AFRICA
APPELLATE
DIVISION
In the matter between:
SOUTH AFRICAN TEXTILE &
ALLIED
WORKERS' UNION
First Appellant
ELIZABETH MBAMBO & 20 OTHERS
2nd - 22 Appellants
and
SKIPPER INTERNATIONAL (PTY) LTD
Respondent
Coram
: JOUBERT ACJ, et HOEXTER SMALBERGER KUMLEBEN
JJA
et
GOLDSTONE AJA
Heard
: 17 August 1990
Delivered
: 27
September 1990
JUDGMENT
JOUBERT, ACJ:
/2
2
This is an appeal against a decision of FLEMMING J in the
Witwatersrand Local Division which has been reported as
Skipper International
(Pty) Ltd v South African Textile and Allied Workers' Union & Others
,
1989 (2) SA 612
(W). The appeal is brought with leave of the Court aguo.
The
relevant factual background to the present áppeal may be briefly outlined
as follows:
1. During October 1987 Skipper International (Pty) Ltd (hereinafter referred to
as "Skipper International") dismissed its entire
work force which included the
2nd to 22nd appellants (the "other appellants") on the ground that they had gone
on strike. From subsequent
correspondence it appears that the South African
Textile & Allied Workers' Union (the "Workers' Union") denied the
existence
/3...
3
of an alleged strike, claiming that there had been a mere work stoppage. With
the exception of the other appellants, the majority
of the work force was
re-employed by Skipper International. Criminal charges of intimidation were
subsequently brought unsuccesfully
against some of the other appellants.
2. On 14 March 1988 the attorneys of the Workers' Union and the other appellants
in a registered letter to Skipper International
claimed that the dismissal of
the other appellants was both procedurally and substantially unfair and
constituted an unfair labour
practice. It was also demanded that the other
appellants should be reinstated in their employment on or before 18 March 1988
failing
which the matter would be referred to the Industrial Council
for
/4...
4
the Clothing Industry (Transvaal) (the" Industrial Council") and thereafter to
the Industrial Court for a final determination of
the dispute in terms of s 46
(9) of the Labour Relations Act 28 of 1956 (the "Act"). See Annexure "KAL
2".
3. In their replying letter dated 15 March 1988 the
attorneys of Skipper
International denied that the
latter had been guilty of any unlawful or
unfair
conduct. Their client did not intend to reinstate
all or any of the
other appellants. Moreover,
their client would oppose any proceedings
instituted
by the Workers' Union and the other
appellants.
See Annexure "KAL 3".
4. The insertion of s 27 A in the Act.by s 8 of Act
/5...
5
83 of 1988 became operative with effect from
1 September 1988. I shall in due course consider
the provisions of s 27 A.
5. On 23 September 1988 the attorneys of the Workers'
Union and the other
appellants wrote a letter to
Skipper International stating that they had
been
instructed by their clients to declare a dispute
on the issue of the dismissal of the other appellants and calling on Skipper
International to reinstate the other appellants on or
before 29 September 1988
failing which they had been instructed to refer the matter to the Industrial
Council and thereafter to the
Industrial Court. See Annexure "KAL
4".
6. On 29 September 1988 the attorneys of
Skipper
/6...
6
International in a replying letter, delivered by hand to the
attorneys of the Workers' Union and the other appellants, stated that
the
attitude of Skipper International remained as set out in the letter of 15 March
1988. See Annexure "KAL 6."
7. In response, the attorneys of the Workers' Union and the other appellants
sent a registered letter, dated 24 October 1988, to the
attorneys of Skipper
International (See Annexure "KAL 7") in which was enclosed another letter of
even date directed to Skipper International,
informing the latter in terms of s
27 A (1)(d)(i) o'f the Act that a deadlock had been reached concerning the
dispute and that the
matter would be referred to the Industrial Council.
/7...
7 See Annexure "KAL 8".
8. On 27 October 1988 the attorneys of Skipper International in a letter to the
attorneys of the Workers' Union and the other appellants
maintained that a
deadlock had been reached on reception of their letter dated 29 September 1988.
Accordingly the period of 21 days
referred to in s 27 A (1)(d)(i) had already
expired. The dispute could therefore not be referred to the Industrial Council.
See Annexure
"KAL 9."
9. In their letter, dated 9 November 1988, the attorneys of the Workers' Union
and the other appellants informed the General Secretary
of the Industrial
Council
that they were referring the dispute to the
latter.
/8...
8
According to legal advice obtained by them the dispute which was deemed to have
arisen on 1 September 1988 was not governed by s
27 A of the Act. See Annexure
"KAL 11."
10. During November 1988 Skipper International as a
matter of urgency applied
in the Witwatersrand
Local Division for an order declaring a deadlock
to
have been reached on 29 September 1988 in the
dispute between it and the
Workers' Union as well
as the other appellants. An interdict was
also
sought against them to prevent them from taking
any steps to have the
dispute referred to the
Industrial Council.
11.
On 23 December 1988 FLEMMING J granted an interdict
/9...
9
as applied for by Skipper International. The appeal is against the judgment of
PLEMMING J as I mentioned
supra
.
Whenever a
dispute arises, as in the present matter, in an industry or trade between
employees (the other appellants), assisted by
their trade union (the Workers'
Union), and their employer (Skipper International) it may be referred by any
party to the dispute
for settlement by an industrial council in terms of s 27 A
(1)(a) of the Act. The question which falls to be decided is whether ornot
Skipper International was premature in bringing its application in the Court
a quo
. The answer to this question depends on the proper construction of
s 27 (A) (1)(d)(i) of the Act as applied to the facts of the present
matter. The
relevant portion of s 27 A (1)(d), which prescribes the limitations of time
within which a reference
/10...
10
of a dispute to an industrial council is to be made, reads
as follows:
"No dispute shall be referred to an industrial council-(i) unless the
reference is made within 21 days from the date on which any
party to the dispute
has notified every other party to the dispute by registered post or by notice
delivered by hand that a deadlock
has been reached concerning the dispute :
Provided that no dispute may be referred to an industrial council after the
expiration
of 90 days from the date on which the dispute was first alleged to
have arisen, providing that the industrial council may condone
such late
reference." A close examination of s 27 A (1)(d)(i)
shows that it consists of three clauses which have been drafted
in a rather maladroit fashion. The wording of the first
clause is mandatory, viz. that a dispute cannot be referred
/11...
11
to an industrial council unless the reference thereof is
made
within 21 days
,
reckoned from the date of the
notification
to all other interested parties
,
that a deadlock
has been
reached concerning the dispute
. The prescribed method
of
notification is by way of registered post or by notice delivered
by
hand.
The purpose of the notification is obviously to
inform all
other interested parties of the existence of a
deadlock concerning the
dispute
. The period of 21 days
is to be determined from the date of the
notification.
Since the Legislature intended the first clause to be
imperative,
as appears from its wording, it follows that non-observance
of
the time limitation of 21 days within which reference of
the dispute to an
industrial council is to be made must be .
construed as being fatal. Compare
Feinberg v Pietermaritzburg
Liquor Licensing Board
,
1953 (4) SA
415
(A) at p 420-421,
Le Roux & Another v Grigg-Spall
,
1946 A D
244
at p 249 -
/12...
12
250. I shall in due course refer to other aspects relating
to the interpretation of the first clause.
The second clause of s 27 A (1)(d)(i)
relating to the reference of a
dispute to an industrial council
is worded as a proviso. "A proviso is usually enacted in
order to qualify
something contained in the preceding enactment"
(
S v Rosenthal
,
1980 (1) SA 65
(A) at p 81 E - F per TROLLIP
J A).
According to Craies on
Statute Law
, 7th ed, at
p 218:
"(T)he effect of an excepting or qualifying proviso, according to the
ordinary rules of construction, is to except out of the preceding
portion of the
enactment, or to qualify something enacted therein, which but for the proviso
would be within it; and such proviso
cannot be construed as enlarging the scope
of an enactment when it can be fairly and properly construea without attributing
to it
that effect."
/13...
13
While a proviso may be worded as such in form it may in
substance amount to an independent enactment, having a more extensive operation
than that of the preceding enactment. See Maxwell on
Interpretation of
Statutes
, 12th ed., at p 190:
"If, however, the language of the proviso makes it plain that it was intended
to have an operation more extensive than that of the
provision which it
immediately follows, it must be given such wider effect."
The second clause of s 27 A (1)(d)(i) enacts that no dispute is to be
referred to an industrial council
after the lapse of 90 days from the date on
which the dispute was first alleged to have arisen
(subject to condonation
by an industrial council). The only factor
/14...
14
common to the first and second clauses is the existence of a
dispute which is to be referred to an industrial council. A comparison
between
them reveals that they differ in substance entirely from each other in the
following respects:
1. The periods of their time limitations differ, viz 21 days and 90 days
prescribed by the first and second clauses respectively.
2. The dates from which their respective time limitations are to commence
differ. The period of 21 days
is according to the first clause to be determined from the date of notification
of a deadlock having been reached, whereas the period
of 90 days is in terms of
the second clause to run from the date on which the dispute was first alleged to
have arisen.
/15...
15
3. The first clause requires a notification of the
existence of a deadlock to
be sent by registered
post or to be delivered by hand to all other
parties
to the dispute. The second clause does not
require any
notification. It makes no mention
of a deadlock at all.
4. A dispute and a deadlock are not synonymous terms.-
For some inexplicable
reason the Legislature has
not defined them in the Act notwithstanding
the
fact that lay people are mostly involved in the
application of its
enactments. The words
"dispute" and "deadlock" must accordingly bear
their
ordinary meanings. The following meanings
are giyen to them in
The Oxford
English Dictionary
,
/16...
16
2nd ed., vol 4 s.v.
Dispute
: "controversy, difference of opinion", and
s.v.
Dead lock
: "A condition or situation in which it is. impossible to
act, a complete standstill."
Webster's Third New International
Dictionary
, vol. 1 s. v.
Deadlock
states : " a state of inaction or
of neutralization caused by the opposition of persons or of factions (as in a
government or in
a voting body): Standstill."
On
considering s 27 A (1)(d)(i) as a whole I can find no repugnancy between its
first and second clauses. In my judgment the second
clause is in substance an
independent enactment which has a separate and distinct operation from that of
the first clause. In this
instance punctuation is of no assistance in the
construction of the section.
It is. the arrangement of the first and second clauses
/17...
17
of s 27 A (1)(d)(i) in the same enacting compartment that
causes confusion which could easily have been avoided by the draftsmen had
they
framed the contents of the second clause not in the form of a proviso, as they
did, but as a separate and distinct enactment.
The third clause of s 27 A
(1)(d)(i) is a condonation provision conferring on an industrial council a power
to condone a late reference
to it. It is clear from the aforegoing that it
cannot refer to the first clause since non-compliance with its prescribed time
limitation
of 21 days would be fatal and accordingly not susceptible of
condonation, as indicated
supra
. It can therefore only have reference to
the second clause which it qualifies as a proviso.
I now turn to consider the
application of s 27 A (1)(d)(i) to the facts of the present case. It
/18...
18
appears from the correspondence that by 15 March 1988 a
dispute arose between the parties concerning the reinstatement of the other
appellants in their employment (Annexures "KAL 2" and "KAL 3"). In the letter of
15 March 1988 the appellants were informed that
Skipper International did not
intend to reinstate the other appellants in their employment. That was the sole
dispute between the
appellants and Skipper International. It was in substance a
very simple dispute. It did not involve intricate negotiations in regard
to
matters such as, for instance, conditions of employment, salary increases, sick
leave or pension benefits.
Was a deadlock reached regarding the dispute ? If
so, when ? Mr
Redding
, on behalf of the appellants, submitted that it was
in the very nature of negotiations that workers are disposed to demand more than
they realistically expect to achieve. His written Heads of
/19...
19
Argument proceeded thus :
"that in a factual sense, a standstill in negotiations occurs when the first
party is unwilling to modify or alter its initial demand.
A deadlock or
standstill in the negotiations exists when no other options are open either to
the first or second party." (Paragraph
21 of Appellants' Heads of Argument).
His contention as developed in argument amounted to the following: although
one party has finally terminated the negotiations, there
is in fact no deadlock
within the meaning of s 27 A (1)(d)(i) unless such termination is acknowledged
and accepted by the other party
(by his not making a further offer, or in some
other manner). I cannot agree. The Legislature used the word "deadlock"
simpliciter
in the main provision of s 27 A (1)(d)(i) without ascribing
to it the wider meaning contended for by Mr
Redding
. As I indicated
supra
the
/20...
20
word "deadlock" should be given its ordinary meaning of a
"standstill". In this sense it signifies a "stalemate" or an "impasse".
In my
judgment it is to be inferred from the correspondence, in particular the letters
of 15 March 1988 (Annexure "KAL 2"), 23 September
1988 (Annexure "KAL 4") and 29
September 1988 (Annexure "KAL 6") that a deadlock in the negotiations was
reached on 29 September
1988 when it clearly appeared that Skipper International
was adamant and unrelenting in its attitude not to reinstate the other
appellants
in their employment. In the circumstances any attempt at further
negotiation regarding the reinstatement would have served no useful
purpose at
all.
The remaining matter to be determined is whether or not the letter of 29
September 1988 amounted to a notification to the appellants
that a deadlock had
been reached concerning the dispute. Mr
Redding
contended that
/21...
21
it did not since it was not a formal notification using
the
word "deadlock". There is nothing in the Act to support
this
contention, since the Legislature did not prescribe
any particular form or a
standard form for the notification.
In my judgment it suffices, as I
indicated
supra
, if it
can be clearly inferred from the contents of
the notification
that a deadlock had in fact been reached in the
negotiations
between the parties, as can in the circumstances be
gathered
from the letter of 29 September 1988 read in conjuction
with._
the letter of 15 March 1988. In this regard I agree with
the
following
dictum
in the judgment of FLEMMING J at
p 617 D - E :
"It is adequate if it informs the other party of the attitude that
negotiations have no future and are therefore terminated (or will
not be
commenced) with such clarity that the recipient realises that matters
/22...
22
have reached the stage where he has to elect either to refer
the matter to an industrial council or let matters be."
I may add that the letter of 29 September 1988 was delivered by hand and
accordingly complies with one of the methods of delivery
as prescribed by s 27 A
(1)(d)(i).
The appellants failed to refer the dispute between them and the
respondent to an industrial council within 21 days from the notification
of the
deadlock on 29 September 1988. It follows that in terms of the first clause of s
27 A (1)(d)(i) the period of 21 days elapsed
within which the dispute could be
referred to an industrial council. The proviso to s 27 A (1)(d)(i) is in the
circumstances inapplicable.
Skipper International was accordingly not premature
in bringing its application in the Court
a quo
.
/23...
23
It follows that the appeal cannot succeed. The appeal is
accordingly dismissed with costs which the appellants are ordered, jointly
and
severally, to pay.
C. P. JOUBERT ACJ.
HOEXTER JA
SMALBERGER JA Concur.
KUMLERBEN JA
GOLDSTONE AJA