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[2019] ZALCJHB 247
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Johannesburg Metropolitan Bus Services (SOC) Ltd v Democratic Municipal and Allied Workers Union and Another (J1799/19) [2019] ZALCJHB 247; (2020) 41 ILJ 217 (LC) (20 September 2019)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Of interest to other
judges
case
No: J 1799/19
In
the matter between:
johannesburg
metropolitan bus services (SOC) LTD
Applicant
and
DEMOCRATIC
MUNICIPAL AND ALLIED WORKERS UNION
First
Respondent
MEMBERS
LISTED IN ANNEXURE “A”
Second
Respondent
Heard: 19 September 2019
Delivered: 20
September 2019
JUDGMENT ON
APPLICATION FOR LEAVE TO APPEAL
LAGRANGE
J
Introduction
[1]
This is an urgent application for leave to appeal against the final
order handed down on
30 August 2019. Pursuant to that order, after a
ballot was held in terms of the order, a strike commenced on 16
September 2019
in respect of the two demands of the union contained
in the second and third paragraphs of the strike notice, namely;
demands requiring
the employer to:
1.1
accede to the principle of salary progression based on an employee’s
number of years of
service in the employment of the JMBS with
employees being grouped in cohorts of three years’ service
beginning at 0 to 3
years and ending at 24 to 27 years, and
1.2
to allocate offices and office equipment and materials to the union
at all three depots of JMB.
[2]
The employer (‘JMBS’) has applied for urgent leave to
appeal against the court’s
finding that the respondents were
entitled to embark on a protected strike in respect of the demand for
an agreement in principle
on pay progression in respect of certain
cohorts of employees categorised by length of service. In addition,
it seeks an order
that the respondents should be restrained from
participating in a strike in pursuance of the pay progression demand
pending the
finalisation of the appeal. The appeal is to be launched
on an urgent basis if leave to appeal is granted.
[3]
JMBS submits there is a reasonable prospect another court will
conclude that: the demand is not one the employer could properly
consider; acceding to the demand would not resolve the dispute; the
demand for an ‘in principle’ agreement on pay progression
is a disguised wage demand, and the recognition of an ‘in
principle demand’ as a legitimate strike demand raises a
novel
legal issue.
[4]
While
not necessarily agreeing that there is a reasonable possibility
another court will find differently on most of these points,
I accept
that the issue raised is a novel one on which another court might
find differently, simply because it is not the type
of demand issue
that has been considered before. It was argued by the union that a
demand of this kind has been previously considered
by the labour
court in the case of
Vanachem
Vanadium Products (Pty) Ltd v National Union of Metalworkers of SA &
others.
[1]
However, I do not think the demands in question are analogous to the
demand for an in principle agreement on pay progression. In
Vanachem
the
court was not concerned with the true content of demands or whether
they were inchoate but whether they could be construed as
matter of
mutual interest. The essence of the contested demand in this case
entails a demand that the employer commit agreeing
on a new component
to remuneration without having to accede to when it would be
negotiated, implemented or what the increments
would amount to,
albeit that the union was demanding that any progression agreed upon
would be determined with reference to which
length of service cohort
an employee fell under. I was not referred to any case in which
the court has determined whether
a demand of this nature is a
disguised remuneration demand or that addresses the coherence of such
a demand.
[5]
Accordingly, I am satisfied that leave to appeal should be
granted. I am also satisfied the matter is urgent as the strike is
already
in progress and any harm suffered is ongoing.
[6]
The law applicable determining the effect of granting leave to
appeal and whether the order appealed against can nonetheless be
enforced pending the outcome of an appeal is governed by
s 18
of the
Superior Courts Act, 10 of 2013
, which states:
18 Suspension of
decision pending appeal
(1) Subject to
subsections (2) and (3), and
unless the court under exceptional
circumstances orders otherwise
, the
operation and execution
of a decision which is the subject of an application for leave to
appeal or of an appeal,
is suspended pending
the decision of
the application or appeal.
(2) Subject to subsection
(3), unless the court under exceptional circumstances orders
otherwise, the operation and execution of
a decision that is an
interlocutory order not having the effect of a final judgment, which
is the subject of an application for
leave to appeal or of an appeal,
is not suspended pending the decision of the application or appeal.
(3)
A court may only
order otherwise as contemplated in subsection (1)
or (2),
if
the party who applied to the court to order otherwise
, in
addition proves on a balance of probabilities that he or she will
suffer irreparable harm if the court does not so order and
that the
other party will not suffer irreparable harm if the court so orders.
(4) If a court orders
otherwise, as contemplated in subsection (1) —
(i) the
court must immediately record its reasons for doing so;
(ii) the
aggrieved party has an automatic right of appeal to the next highest
court;
(iii) the
court hearing such an appeal must deal with it as a matter of extreme
urgency; and
(iv) such
order will be automatically suspended, pending the outcome of such
appeal.
(5) For the purposes of
subsections (1) and (2), a decision becomes the subject of an
application for leave to appeal or of an appeal,
as soon as an
application for leave to appeal or a notice of appeal is lodged with
the registrar in terms of the rules.
(emphasis
added)
[7]
The SCA
held
in
University
of the Free State v Afriforum
[2]
that
the bar a party that wishes to enforce the order, notwithstanding
leave to appeal being granted, is a high one.
[3]
However,
in
this case, JMBS is not seeking to enforce the order, because the
order interdicted strike action only on the basis that no ballot
had
been held and that one of the demands could not be the subject matter
of a protected strike if the ballot was held. JMBS argued
that the
court’s decision that the respondents could strike in respect
of a demand for an agreement in principle on pay progression
was
obiter
and the
essence of the judgment was that the strike was interdicted in the
absence of a ballot being held. Yet JMBS specifically
sought
interdictory relief on more than one ground, one of which was that
the demand could not be the subject matter of a protected
strike even
if a ballot was held. The judgment determined if that was correct and
issued a declaratory order declining that relief.
It was as much a
part of the judgment as the decision to conditionally interdict the
strike.
[8]
It was
suggested in argument by JMBS that the prayer to interdict the strike
over the contentious demand in respect of which leave
to appeal is
sought ought to be considered in the light of the judgment in
Gallocher
v Social Housing Regulatory Authority and Another
.
[4]
That case concerned whether an order uplifting an employee’s
suspension which the court had ordered should be enforced
pending
the outcome of an appeal process. The court was seized with the issue
whether or not exceptional circumstances warranted
an exception to
the normal rule that the order should be suspended, and found they
did.
[9]
That is not what JMBS is asking the court to do in this instance. In
this application JMBS
is asking the court
not to enforce
its
order pending the outcome of the appeal but to issue an interdict
contrary
to the order it made, pending the appeal. In my
understanding that is not a power the court can exercise incidentally
in the course
of granting leave to appeal. It is actually tantamount
to a second attempt to obtain the same interdictory relief it
originally
applied for, albeit on an interim basis, having failed to
obtain it on a final basis. This cannot be competent relief
under
section 18(3)
of the
Superior Courts Act. In
which case, the
default position applies, namely that the effect of the order is
suspended pending the outcome of the appeal.
[10]
The only currently effective part of the order is the declaratory
order permitting the respondents to engage
in protected strike action
in pursuit of their demand for an agreement in principle on pay
progression. Suspending that declaratory
relief simply means that
pending the outcome of the appeal there is no such declaratory order
in effect. Any continuation of the
strike during this period carries
a risk for the respondents that if JMBS is successful on appeal on
this issue, the strike in
respect of the pay progression demand will
have been unprotected during the period between this judgement and
the outcome of the
appeal.
[11]
In light of the above, it is not necessary to consider the factors
that must be considered in whether to
enforce an order pending an
appeal under
s 18(3)
of the
Superior Courts Act and
the ordinary
consequences of granting leave to appeal will follow.
[12]
Neither party pressed the issue of costs in these proceedings and
accordingly no cost order will be made.
Order
[1]
The applicant is granted leave to appeal against the court’s
declaratory order in
the judgment handed down on 30 August 2019 that
the respondents may embark on a protected strike in respect of their
demand for
an agreement in principle on pay progression.
[2]
The applicant must deliver its notice of leave to appeal on an urgent
basis by no later
than 23 September 2019.
[3]
No order is made as to costs.
_______________________
R
G Lagrange
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANTS:
Adv.
M.J Van As – Instructed by Werksmans Attorneys
RESPONDENT:
Reynaud
Daniels of Cheadle Thompson & Haysom Inc.
[1]
(2014) 35 ILJ 3241 (LC)
[2]
[2017] 1 All SA 79 (SCA);
[3]
At
paragraphs [10] and [11].
[4]
(J1485/2019) [2019] ZALCJHB 162 (3 July 2019)