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[2020] ZALCJHB 53
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National Union of Metalworkers of South Africa (NUMSA) obo Members and Another v South African Airways (SOC) Ltd and Others (J149/20) [2020] ZALCJHB 53; [2020] 6 BLLR 594 (LC) (20 February 2020)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
case
no:
J
149/20
In
the matter between:
NATIONAL UNION OF
METALWORKERS
OF
SOUTH AFRICA (NUMSA) obo MEMBERS First
Applicant
SOUTH AFRICAN CABIN
CREW ASSOCIATIO
(SACCA)
obo
MEMBERS Second
Applicant
and
SOUTH AFRICAN AIRWAYS
(SOC) LTD
(IN
BUSINESS
RESCUE) First
Respondent
LES
MATUSON
N.O. Second
Respondent
SIVIWE
DONGWANA
N.O. Third
Respondent
AVIATION
UNION OF SOUTH AFRICA (AUSA)
Fourth Respondent
NATIONAL
TRANSPORT UNION (NTM) Fifth
Respondent
SOUTH
AFRICAN AIRLINE PILOTS
ASSOCIATION
(SAAPA) Sixth
Respondent
SOUTH
AFRICAN TRANSPORT AND
ALLIED
WORKERS UNION (SATAWU)
Seventh Respondent
SOLIDARITY
TRADE UNION (SOLIDARITY) Eighth
Respondent
NON-UNIONISED
EMPLOYEES
Ninth to Further Respondents
Heard
:
14 February 2020
Delivered
:
20 February 2020
Summary:
Application
for leave to appeal – applicable test – opinion that the
appeal
would
have a reasonable prospects
of success or there are
compelling reasons
why
the appeal should be heard if there are conflicting judgments
on
the matter under consideration
. Where the test is not met
leave to appeal should be refused as the law as it stands now it can
be given
only
when the test is met. In
casu
– (a) the opinion is that the appeal
would not have any reasonable prospects of success and (b) there are
no compelling reasons
in that there are no conflicting judgments on
the aspect that absent contemplation, the legal duty to consult does
not arise. It
being trite and established law that if there is no
contemplation to dismiss there is no duty to consult. The issue
whether normal
attrition contemplated in section 136 (1) (a) of the
Companies Act mean also dismissal for operational reasons was not a
matter
under consideration in this matter. Held (1): The application
for leave to appeal is dismissed. Held (2): There is no order as to
costs.
JUDGMENT – LEAVE TO
APPEAL
MOSHOANA,
J
Introduction
[1]
One of the
most intriguing thing for this Court is where a legal representative
accepts and executes an instruction to appeal a
judgment of a Court
before engaging with the reasons advanced by the Court for the order
it arrived at
[1]
. This is what
happened in this matter. Before judgment could be handed down, the
applicants’ representative informed me in
chambers that he
holds an instruction to appeal the judgment as soon as it was to be
handed down by the Court. Indeed, after the
order was handed down,
the Court was advised of an application for leave to appeal. Leave to
appeal is not granted on the strength
of how popular the matter is
and how loud the losing party may shout. There is a set and
legislated test to be met before leave
to appeal may be granted.
[2]
The application for leave to appeal was heard on an urgent basis.
Both
parties were in agreement that it must be heard on an urgent
basis. I exercised my discretion to hear the application on an urgent
basis simply because the respondent did not oppose its hearing on an
urgent basis. However, it may be important to point out in
this
judgment that rule 30 (1) of the Rules of this Court regulates the
making of the application and not its hearing by the Court.
It is one
thing to make an application, it is another thing to have it heard.
Rule 8 regulates the granting of an urgent relief.
[3]
Being granted leave to appeal is a relief. Before a judge, what an
applicant
seek is leave to appeal the judgment of the Court. Thus, it
is a fallacy in my view to suggest that because rule 30 (1) allows a
party to make the application at the time of judgment or order an
applicant is thereby entitled to be heard at the same time. All
the
rule allows a party to do is to make the application. Once made, its
hearing in this Court is regulated by the provisions of
the Practice
Manual, clause 15 thereof. The clause specifically provides that an
application for leave to appeal will be decided
in chambers unless
the judge directs that the application be heard in open Court.
[4]
With that practice in place, once a party seeks to obtain leave to
appeal
on an urgent basis, the provisions of rule 8 must be complied
with. Nonetheless, as pointed out above, I heard the appeal in the
open urgent Court for reasons set out above. One other reason was
that this matter has generated huge public interest and as such
speedy resolution is much awaited.
The
grounds for appeal
[5]
A number of grounds were raised in support of this application. It is
unnecessary to tabulate them in this judgment. Suffice to mention
that the first respondent (SAA) submitted that those grounds are
meritless and should be rejected outright.
The
test for leave to appeal
[6]
It is by
now settled that the Labour Court is a Superior Court and the
provisions of the Superior Court Act
[2]
(SCA) applies to it. Section 16 (1) (a) of the SCA specifically
provides that an appeal lies upon leave having been granted. Section
17 (1) deals with the relief of leave to appeal. In terms thereof,
leave to appeal may only be granted where a judge is of an opinion
that (a) the appeal if granted would, not may, have reasonable
prospects of success or (b) there is some compelling reason why
the
appeal should be heard, including, as a reason, existence of
conflicting judgments on the matter under consideration.
[7]
It has been confirmed that the use of the words
only
and
would
implies that the threshold is set high to a point where this
Court must only give leave in instances where a definitive prospect
exists that the appeal would succeed. As matter of general principle,
appeal Courts are more concerned with questions of law. The
legal
question applicable in this matter is not whether contemplation
factually happened but whether a legal duty to consult arose.
In
other words, had the provisions of section 189 (1) ‘kicked in’?
The jurisdictional fact to exist for the provisions
of the section to
kick in is that a contemplation happened. This Court resorted to the
literal meaning of the term and concluded
that such should be
understood from the SAA’s point of view. The applicants argued
and continue to argue that the test to
be applied is an objective one
and as such the Labour Appeal Court would come to a decision that the
test is objective, which decision
would result in the overturning of
the judgment and order of this Court.
[8]
The LAC has
already pinned its colours to the mast on this legal question in the
matter of
SACCAWU
obo Members v JDG Trading (Pty) Ltd
[3]
where
it held:
[26]
It is trite that section 189 (1) of the LRA obliges an employer to
consult on contemplation of
retrenchments.
Du Toit et al Labour
Law Through the cases
, after the discussion of the authorities,
accurately capture the prevailing legal position about what is
required
as follows:
“
It would therefore
seem that the weight of authority has shifted from a broader to a
narrower interpretation of the term “contemplates”.
Having initially accepted that contemplation of dismissal as one of
various options was sufficient to trigger the employer’s
duty
to consult, the courts now appear to take the view that for purposes
of section 189, “contemplates”
refers to dismissal as
the preferred or most likely option from the employer’s point
of view rather than a mere possibility
. It follows that the
employer
is entitled to go through a process of weighing up
various alternatives before dismissal can be said to be
“contemplated”
. However, the employer may not embark
on consultation with a closed mind but must be willing to seriously
consider any further
alternatives to dismissal that may emerge in the
process.”
[9]
The above mirrors in exact science, as it were, with what this Court
did
in the judgment under attack. In light of the above authority,
there is no reasonable prospects that the LAC would arrive at a
different conclusion than the one already arrived at by this Court.
Regard being had to the threshold set, this application does
not meet
same.
[10]
With regard
to compelling reasons, it is contended by the applicants that there
is a conflicting judgment of this Court
[4]
.
I do not agree that the judgment relied on conflicts with the settled
law that once contemplation has occurred a legal duty to
consult
arises – a point of law which was under consideration in this
matter. This matter did not involve itself in the interpretation
and
application of section 136 (1) (a). In the judgment relied on the
labour court interpreted the meaning of the phrase “
changes
occur in the ordinary course of attrition
”.
The said judgment concluded that attrition includes retrenchment. I
did not arrive at a different conclusion, nor was it
necessary for me
to even get there.
[11]
The respondent’s counsel argued in this matter that the word
attrition ought to be
given its literal meaning. And in its literal
meaning it excludes retrenchment hence the legislature provided
specifically for
retrenchment in section 136 (1) (b). Although, this
issue did not arise in the previous judgment of this Court, there is
merit
in this submission. In my view, attrition as employed in the
section refers to loss of employees through a natural process, such
as retirement, resignation, personal health but to the exclusion of
retrenchment as provision for it is made in section 136 (1)
(b). It
would be an unnecessary duplication if the legislature contemplated
retrenchment in the two subsections.
[12]
On the
issue of application for leave to present further evidence, the
contention is that this Court erred in refusing to grant
the
application.
The
Appellate Division, as it then was, in
James
Brown and Hamer (Pty) Ltd v Simmons N.O
[5]
had the following to say:
“
It
is in the interest of the administration of justice that the
well-known and well established general rules regarding the number
of
sets and the proper sequence of affidavits in motion proceedings
should
ordinarily be observed.
That is not to say that those general rules must always be rigidly
applied: some flexibility,
controlled
by the presiding Judge, exercising his discretion in relation to the
facts of the case before him
,
must necessarily also be permitted. Where, as in the present case, an
affidavit is tendered in motion proceedings both late and
out of its
ordinary sequence, the party tendering it is seeking,
not
a right, but an indulgence
from
the Court:
he
must both advance his explanation of why the affidavit is out of time
and satisfy the Court
that, although the affidavit is late, it should, having regard to all
the circumstances of the case, nevertheless be received…”
[6]
[13]
Therefore, in refusing to grant the application, this Court was
exercising a discretion.
The general rule is that a court of appeal
would be loath to interfere with an exercise of discretion unless it
was not exercised
judiciously and was actuated by malice and caprice.
It would not have been in the interest of justice to receive a
transcript that
has not been authenticated. Besides, whether that
transcript was accepted, it would not have had any impact on the
question to
be decided by this Court. The fact that an employer has
contemplated retrenchment is often proven by the issuance of a
section
189 (3) notice and not by some unsubstantiated say so of some
station managers. No court would grant this type of an application.
[14]
In summary, the applicants have failed to meet the required test,
both in respect of reasonable
prospects of success and in
demonstrating compelling reasons. Accordingly, the application must
fail.
[15]
In
the results the following order is made:
Order
1.
The
application for leave to appeal is dismissed
2.
There
is no order as to costs.
_______________________
G. N. Moshoana
Judge
of the Labour Court of South Africa
Appearances
For
the Applicants: Mr Niehaus of Minnaar Niehaus
Attorneys, Port Elizabeth.
For
the Respondent: Mr V Mndebele
Instructed
by: ENS
Attorneys, Sandton.
[1]
In fact, in my view, it is the most condescending and probably an
unprofessional thing to do, owing to the test for leave to
appeal
enunciated in section 17 of the
Superior Courts Act 10 of 2013
.
[2]
No. 10 of 2013.
[3]
Case JA140/17 delivered on 17 October 2018.
[4]
Solidarity
obo Fourie and others v Vanchem Vanadium Products (Pty) Ltd and
others
J385/16 delivered on 22 March 2016.
[5]
1963 (4) SA 656
(A).
[6]
See also:
Standard
Bank of SA Ltd v Sewpersadh and another
2005
(4) SA 148
(C).