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[2020] ZALCJHB 110
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Democratic Municipal and Allied Workers Union of South Africa (DEMAWUSA) v Registrar of Labour Relations (J 199/20) [2020] ZALCJHB 110 (6 July 2020)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case No: J 199/20
In the matter between:
DEMOCRATIC MUNICIPAL
AND ALLIED
WORKERS UNION OF SOUTH
AFRICA (DEMAWUSA) Applicant
and
REGISTRAR
OF LABOUR RELATIONS
Respondent
Heard:
Via Zoom on 23 June 2020, further
submissions on 29 and 30 June 2020
Delivered:
06 July 2020, via email and saflii website due to precautionary
measures
to avoid the spread of Covid-19.
JUDGMENT
MABASO, AJ
Introduction:
[1]
This
application comes before this court on an urgent basis. After hearing
both Counsel for the Applicant and the Respondent, this
court
adjourned the matter for judgment. This court in its preparation for
judgment noted that it might happen that both parties
have taken
untenable collective argument, as they concentrated on the provisions
of subsection 18(3) of the Superior Court Act
[1]
(the Act), considering the Order stated in paragraph 4 below. This
court then proceeded to issue a directive to be addressed about
this
aspect. Answers thereto determine the outcome of this matter.
[2]
In this judgment, this court avoids
expressing its views on the nature of the Order (whether or not it is
an interlocutory or final
order), since there is a leave to appeal
pending against the Order and Learned Judge, Langrage J, might be
required to apply his
mind on the appealability of the Order because
of the belated submission by the Applicant relating to section 18(2)
of the Act,
dealt with below. This judgment focuses on this tardy
submission by the Applicant.
[3]
Initially, the Applicant sought an order in
the following terms:
“
2.1
ordering that the operation of this Honourable Court order of 10
March 2020 in the above
matter remain in effect:
2.1
Until the respondent’s application for leave to appeal against
the above
order is determined; and
2.2
if the application for leave to appeal is granted, until the
respondent’s
appeal is determined.”
[4]
These prayers refer to the order (the
Order) issued by Lagrange J, on 10 March 2020, which reads thus:
“
The
decision of the Respondent, the Registrar of Labour Relations, to
cancel the registration of the Applicant, the Democratic Municipal
and Allied Workers Union, with effect from 30 January 2020 in terms
of s 109(2) read with
s 106(2A)
of the
Labour Relations Act, 66 of
1995
,
is
suspended pending the outcome of the applicant’s leave to
appeal against the decision
.”
[2]
[5]
The
genesis of this application is the deregistration of the Applicant,
as a trade union, by the Respondent with effect from 30
January 2020.
As a result, the Applicant engaged the Respondent and intended to
appeal the deregistration decision. Subsequently,
an urgent
application (first urgent application) seeking “
interim
relief to reinstate the registration
”
[3]
was launched wherein the Applicant asked that court, Lagrange J, to
uplift its deregistration pending its appeal.
[4]
That court, after being satisfied with the merits presented by the
Applicant, then issued the Order. For example, paragraph 21
of that
judgment, that court held that it would be worthwhile if it does not
grant the interim relief that was sought by the Applicant.
[6]
On 01 June 2020, the Respondent delivered
an application for leave to appeal against the Order/judgment.
Consequently, the Applicant
then brought this application seeking the
relief mentioned in paragraph 2 above. The proffered motivation, as
per paragraph 13
of the founding affidavit, is the jurisprudence of
this court in that an application for leave to appeal and/or an
appeal automatically
suspends the order or judgement pending
determination thereof. I interpose and state that this general rule
is subject to the nature
of the order issued by a court. If it is an
interlocutory order, the rule is that its operation is not suspended
and the party
against whom that order is made may bring an
application before a court to show
inter
alia
exceptional circumstances.
[7]
The Applicant, in its papers, relied on
Section 18
of the Act. For the sake of brevity, this court opts to
cite the full section due to its relevance herein. It reads thus:
“
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.”
[8]
The Respondent vigorously opposed the
application by the Applicant. Before this court, on 23 June 2020, the
issue revolved around
whether the Applicant has managed to show the
exceptional circumstances as per the provisions of
section 18(3)
of
the Act. The Applicant’s initial stance was that the Order was
suspended as per the provisions of subsection 18(1) of
the Act.
[9]
Before judgement could be finalised,
mero
motu
this court raised the issue of
jurisdiction by issuing a directive inviting the parties to file
written submissions to address
this court on whether the Order was
not an interlocutory order as per the provisions of subsection 18(2)
of the Act. The parties
were directed to read the LAC’s
judgment of
Road Traffic Management
Corporation v Tasima (Pty) Ltd and others
[2019] 5 BLLR 434
(LAC)
,
which further clarified a distinction between an interlocutory order
and the final order.
[10]
The Applicant’s Counsel in their
supplementary submissions, as directed by this court, returned with a
concise and well-researched
presentation and advised this court that
the Order of Lagrange J is an interlocutory order based on the
following:
10.1
Corbett JA, writing for the court, in
South
Cape Corp. (Pty) Ltd v Engineering Management Services (Pty) Ltd
1977
(3) SA 534
(AD) at 549G,
defined “
interlocutory” thus:
“
In
a wide and general sense the term ‘interlocutory’ refers
to all orders pronounced by the court, upon matters incidental
to the
main dispute, preparatory to, or during the progress of, the
litigation.”
10.2.
In
Legal Skills and Practice Management: Litigation Skills for South
African Lawyers
,
[5]
CG
Marnewick SC
explained the difference between substantive and interlocutory
applications in the following,
“
There
are two main forms of application. Substantive applications are
applications with the purpose of obtaining final relief on
affidavit
evidence. A substantive application stands on its own. Interlocutory
applications, on the other hand, are used for interim
or procedural
relief and are parasitic in the sense that they cannot have an
independent existence; they are always made in the
course or in
anticipation of an action or substantive application. Interlocutory
applications take their name from the Latin loqui,
meaning to speak
and inter, meaning in the course of.
[11]
Now, the Applicant advises this court that
the Order is an order under subsection 18(2) of the Act, wherein
lodging an appeal does
not suspend its operation. Due to this belated
submissions by the Applicant, this court issued a second directive
inviting the
Applicant to indicate its intention as its belated
argument suggests that the application was erroneously lodged.
[12]
The Applicant’s Counsel responded by
filling further submissions whereby they contended as follows :
“
5.
The Applicant’s original application is one contemplated in
section 18 (1) of the Superior Courts Act 10 of
2013 (“the
Act”). Upon receipt of the Honourable Court’s directive
regarding whether the Order of Lagrange J
is an interlocutory order
contemplated in section 18 (2) of the Act,
the
Applicant’s legal representatives researched the matter and
submitted that they were of the view that the Order of Lagrange
J is
an interlocutory order. It should be noted that the law regarding
this issue is complex
.”
[13]
After submitting that the Order is
interlocutory as stated above, the Applicant delivered an amended
notice of motion, wherein it
seeks this order:
“
In
the light of section 18 (2) of the Superior Court’s Act 10 of
2013 (“the Act”), declaring that the operation
of this
Honourable Court’s order of 10 March 2020 in the above matter
is an interlocutory application and that therefore
it remains in
effect:
2.1. until the
Respondent’s application for leave to appeal against the above
order is determined; and
2.2. if the
application for leave to appeal is granted, until the respondent’s
appeal is determined.”
In
essence, now the Applicant asks this court to give advice. This court
is not competent to do so. Furthermore, there was no averment
in the
affidavit supporting this aberrant prayer.
[14]
Based on the belated argument by the
Applicant, that the Order of Legrange J is an order in terms of
section 18(2) of the Act, it
is concluded that there was no need for
the Applicant to bring this application. This application has to be
dismissed, as it lacks
merits.
[15]
Accordingly, the following order is made:
Order:
1.
The requirements of Rule 8 of the Rules of
this Court are dispensed with, and the matter is heard as one of
urgency.
2.
The application is dismissed.
3.
No order as to costs.
___________________
Mabaso AJ
Acting
Judge of the Labour Court of South Africa
APPEARANCES:
For the Applicant: Mr
Roskam
Instructed
by: Haffegee Roskam Savage
Attorneys
For the
Respondents: Adv
Mooki SC
Instructed
by:
The State Attorney, Pretoria
[1]
10
of 2013.
[2]
Court
emphasis.
[3]
Para
1 of the Judgment of Legrange J. Democratic Municipal and Allied
Workers Union of South Africa (DEMAWUSA) v Registrar of
Labour
Relations (J119/2020) [2020] ZALCJHB 61 (10 March 2020).
[4]
Section
111
(5) of the
Labour Relations Act 66 of 1995
which provides that:
An
appeal in terms of this section against a decision by
the registrar in terms of
section
106
does
not suspend the operation of the registrar’s decision.
[5]
[See
www.mylexisnexus.co.za]