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[2020] ZALCJHB 95
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South African Airways (SOC) Limited (In Business Rescue) and Others v National Union of Metalworkers of South Africa obo Members and Others (J424/20) [2020] ZALCJHB 95 (25 May 2020)
In
The Labour Court of South Africa
(held
at JOHANNESBURG)
Reportable
case
no: J424/20
In
the matter between:
SOUTH AFRICAN AIRWAYS
(SOC)
LIMITED
(In Business Rescue)
First
Applicant
LES
MATUSON
N.O
Second
Applicant
SIVIWE
DONGWANA
N.O
Third
Applicant
And
NATIONAL UNION OF
METALWORKERS
OF
SOUTH AFRICA obo MEMBERS
First
Respondent
SOUTH AFRICAN CABIN
CREW
ASSOCIATION
obo MEMBERS
Second
Respondent
AVIATION
UNION OF SOUTH AFRICA
Third Respondent
NATIONAL
TRANSPORT MOVEMENT
Fourth
Respondent
SOUTH AFRICAN AIRLINE
PILOTS
ASSOCIATION
Fifth
Respondent
SOUTH AFRICAN
TRANSPORT AND
ALLIED
TRADE UNION
Sixth Respondent
SOLIDARITY
Seventh
Respondent
NON-UNIONISED
EMPLOYEES
Eighth
Respondent
COMMISSION FOR
CONCILIATION,
MEDIATION
AND ARBITRATION
Ninth
Respondent
Delivered:
This judgment is handed down electronically by circulation to the
parties' legal representatives by email, and release
to the court’s
library and SAFLII. The date and time for hand-down is deemed to be
12:00 on 25 May 2020.
RULING:
APPLICATION FOR LEAVE TO APPEAL
VAN NIEKERK J
[1]
This is an application for leave to appeal against the whole of the
court’s
judgment delivered on 8 May 2020.
[2]
The test to be applied is established by
s 17
(1)(a) of the
Superior
Courts Act, 10 of 2013
. That provision reads as follows:
Leave to appeal may only
be given where the judge or judges concerned are of the opinion that-
(a)
(i) the appeal would have a
reasonable prospect of success; or
(ii)
there is some other compelling reason why the appeal should be heard,
including conflicting judgements on the matter
under consideration…
[3]
The applicants contend that there is a reasonable prospect that the
factual matrix
would receive a different treatment or that there is
legitimate dispute on the law. Further, they contend that the matter
is of
significant public interest and substantial importance to the
parties and that deciding as it did, the court came to a conclusion
in conflict with an earlier judgment of this Court.
[4]
Much of what the applicants have submitted in support of the present
application concerns
the nature of business rescue, and seeks to
places 136 (1) of the Companies Act in the context of the policy that
underlies business
rescue and business rescue proceedings. But for
the injunction that
the
language of the provision itself must be read in context and with due
regard to both the purpose of the provision and that a
sensible and
business like meaning is to be preferred (s
ee
Natal Joint Municipal Pension Fund v Edumeni
Municipality
2012 (4) SA 593
(SCA)),
this material is hardly relevant. What was at issue is the meaning to
be accorded s 136 (1) and more narrowly, whether
the wording of s 136
(1) (b) precludes a business rescue practitioner from issuing a s 189
(3) notice before the preparation of
a business plan. It is not for
the Court to adopt an interpretation that best suits the applicants’
conceptions of the nature
and purpose of business rescue. The same
applies to the commentaries on the judgment to which the applicants
refer – these
are, for the most part, self-interested and
self-serving, and premised on the assumption that courts must
necessarily bridge interpretational
gaps and address anomalies only
by adopting constructions that somehow promote the institution of
business rescue and the interests
of business rescue practitioners.
If the statutory provisions that regulate business rescue are
unworkable, that is a matter for
the legislature to resolve. Until
then, the Court is bound to apply the text, interpreted as necessary
in accordance with the applicable
canons of interpretation.
[5]
Section 17
of the
Superior Courts Act provides
that conflicting
judgments on the matter under consideration is a ground for leave to
appeal. In the present instance, although
the judgment in
Vanchem
Vanadium Products (Pty) Ltd and others: In re National Union of
Metalworkers (NUMSA) obo members v Vanchem Vanadium Products
(Pty)
Ltd and Another
(J385/16 and J 393/16 [2016] ZALCJHB is
distinguishable (for the reasons set out in the judgment that is the
subject of the present
application), and while the court’s
finding in that case on the meaning of
s 136
(1) is clearly
obiter
,
the conclusion reached is one that stands in conflict with the
finding of this court. Further, the present case raises a
constitutional
issue; in particular, the proper interpretation of s
136 (1) of the Companies Act in the context of the constitutional
right to
fair labour practices. For these reasons, leave to appeal
ought to be granted.
[6]
In so far as the first and second respondents contend that any appeal
is moot on account
of a memorandum of understanding signed by the
Minister of Public Enterprises and the second and third applicants, I
do not understand
the terms of that memorandum finally to resolve the
issue of any possible retrenchments, or the timing of a s 189 (3)
notice. The
dispute between the parties may have been paused, but it
remains live.
I make the following
order:
1.
Leave to appeal is granted, costs to be
costs in the appeal.
André van Niekerk
Judge of the Labour Court