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[2000] ZASCA 177
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South African Chemical Workers Union and Another v African Commerce Developing Company (Pty) Ltd t/a Buffalo Tapes (107/98) [2000] ZASCA 177; 2000 (3) SA 732 (SCA); (2000) 21 ILJ 1735 (SCA) (26 May 2000)
REPORTABLE
Case number: 107/98
IN THE SUPREME COURT OF APPEAL OF
SOUTH AFRICA
SOUTH
AFRICAN CHEMICAL WORKERS UNION 1
st
APPELLANT
P
DLADLA 2
nd
APPELLANT
and
AFRICAN
COMMERCE DEVELOPING COMPANY
(PTY)
LTD t/a BUFFALO TAPES
RESPONDENT
CORAM
: SMALBERGER,
MARAIS, ZULMAN JJA, MELUNSKY and MPATI AJJA
DATE OF HEARING
: 8
MAY 2000
DELIVERY DATE
: 26
MAY 2000
Labour Law - condonation - grant of - appealability -
interpretation of s 17(21A)(a) of Act 28 of 1956
__________________________________________________________________
JUDGMENT
__________________________________________________________________
SMALBERGER JA
SMALBERGER JA:
[1] This is an appeal, in terms of s 17C(1)(a) of the
Labour Relations Act 28 of 1956 (“the Act”), against the
decision
of the Labour Appeal Court (“the LAC”) in the
present matter, reported as
African Commerce
Developing Company (Pty) Ltd t/a Buffalo Tapes v SACWU & Another
[1997] 12 BLLR 1537
(LAC) (“the judgment”). The appeal
concerns the proper interpretation of s 17(21A)(a) of the Act. The
main issue
which arises for decision is whether the granting of
condonation by the Industrial Court (“the IC”) is
appealable
before the IC has determined the dispute between the
parties concerning an alleged unfair labour practice.
[2] The relevant facts appear from the judgment at 1538
C to I and need not be repeated. Suffice it to say that the second
appellant,
Mr Protus Dladla (“Dladla”), was dismissed
from his employment with the respondent on 13 March 1992. He
claimed
that his dismissal was unfair and requested the first
appellant (“the Union”) to take up his cause. The
matter was
referred to the IC by the Union and Dladla after a
conciliation board had failed to resolve the dispute between them
and the
respondent. The referral was substantially out of time, and
they were obliged to seek condonation from the IC. After a
considerable
delay the application for condonation was eventually
heard by the IC on 18 October 1994 and granted on 8 November 1994.
The
Union and Dladla were ordered to pay the respondent’s
costs.
[3] The respondent noted an appeal to the LAC. Myburgh
JP came to the conclusion that the order of the IC was appealable at
that
stage. The LAC considered the appeal and allowed it. No costs
order was made. The determination of the IC was altered to provide
for the dismissal of the application for condonation and certain
ancillary relief (see the judgment at 1542 D). The Union and
Dladla
now appeal against the LAC’s decision with the necessary
leave.
[4] The vexed question of whether a finding of the IC
on a preliminary issue is appealable before the IC has determined
the dispute
referred to it in terms of s 46(9) of the Act has been
the subject of conflicting decisions in the LAC in the past (see
Liberty Life Association of Africa Ltd v
Niselow
(1996) 17 ILJ 673 (LAC) and the
cases referred to). More specifically, views have differed on
whether the grant of condonation
is immediately appealable. The
answer has to be sought and found in the wording of s 17(21A)(a) of
the Act. It is trite that
a right of appeal from a decision of a
statutory tribunal must be found in the statute governing that
tribunal.
[5] Section 46(9)(c) of the Act provides that the IC
shall determine a dispute referred to it “as soon as possible”
after such referral. It was common cause that the legislative
policy underlying the Act was that disputes should be resolved
in an
expeditious and inexpensive manner (
cf
National Union of Mineworkers v East Rand Gold and Uranium Co Ltd
1992(1) SA 700 (A) at 739 D-E). When interpreting s 17(21A)(a)
regard must be had to, and where possible effect given to, the
Legislature’s intention.
[6] Section 17(21A)(a) provides, to the extent
relevant:
“
Any party to any proceedings before the
industrial court in respect of any dispute referred to the
industrial court in terms of
section 46(9) may . . . appeal against
the decision of the industrial court in regard to that dispute or
any order as to costs.
. .”
[7] The appellants accept for the purposes of the
appeal before us that the IC’s order granting condonation was
final in
its effect; that it was definitive of the rights of the
parties in relation to the condonation issue and that it settled a
definite
portion of the dispute between them,
viz
,
that relating to the IC’s jurisdiction, which would have been
lacking but for the grant of condonation. They acknowledge
that
the IC’s order was appealable, but contend that, on a proper
interpretation of s 17(21A)(a), it was only open to attack
on appeal
after the IC had made, in terms of s 46(9), a determination in
respect of the merits of the dispute referred to it.
The
appellants’ argument, in effect, is that the appeal to the LAC
was premature. It therefore lacked jurisdiction to
entertain the
appeal at the time it did so. I am unable to agree with the
appellants’ contentions.
[8] In interpreting s 17(21A)(a) one must, in the first
instance, have regard to the language used. The subsection is not a
model
of clarity. What is immediately apparent, however, is that
the right of appeal is given to “[a]ny party to any
proceedings
before the industrial court in respect of any dispute
referred to the industrial court . . .”. It is not limited to
“any
party to . . . any dispute”. Its ambit is
significantly widened to include the parties to “any
proceedings . . .
in respect of any dispute”. “Any
proceedings”, given their literal and wide meaning, would
include proceedings
in regard to preliminary issues such as
jurisdiction, rescission and condonation.
[9] What may be appealed against is “the decision
of the industrial court in regard to that dispute”. This must
be
read in consonance with the earlier part of the subsection
analysed above. One notes that the subsection does not read
“against
the determination of that dispute by the industrial
court” as might have been expected if the Legislature had
intended
the subsection to have the meaning contended for by the
appellants. The words “in regard to” can mean
“concerning”
or “in connection with” and
should, in my view, be so read to harmonise the earlier and later
parts of the subsection.
If the decision appealed against may be
one “concerning” or “in connection with” the
dispute referred
to the IC it can, without straining the language
unduly, encompass a decision in relation to a preliminary issue of
the kind
referred to. The fact that the word “decision”
is preceded by the definite article “the” rather than
the indefinite article “a” does not detract from this
interpretation.
[10] The conclusion that s 17(21A)(a) allows (subject
to a qualification that will be mentioned later) an immediate appeal
against
a decision of the IC in relation to a preliminary issue, is
strengthened when regard is had to the following. The subsection
provides for an appeal “against the decision of the industrial
court in regard to that dispute or any order as to costs”.
The use of the disjunctive “or” makes it clear that “any
order as to costs” is a separate concept.
It is not confined
to a costs order following upon a determination of the dispute on
the merits. It embraces any costs’
order, including one made
in the exercise of the IC’s discretion in relation to a
preliminary issue. Such an order is
immediately appealable. Mr
Buirski, for the appellants, was unable to contend otherwise.
[11] It follows that if, in the present matter, when
granting the appellants condonation, the IC had ordered the
respondent to
pay the costs, because it considered the respondent’s
opposition to have been unreasonable and unjustified, the respondent
could have appealed immediately against such order. Because there
is almost invariably a connection between a costs order and
the
relief granted the LAC, in deciding the appeal, would probably have
been called upon to consider whether the IC had exercised
its
discretion properly in granting condonation. If it were to find
that the IC had not done so, the appeal against the costs
order
would succeed. A consequence of such a finding would be that the IC
lacked jurisdiction in relation to the dispute on
the merits
because, in the absence of condonation, it would not be entitled to
entertain a late referral. If the appellants’
interpretation
of the subsection were correct, one would be left with the absurd
result that despite the LAC’s finding
no order could be made
setting aside the order of condonation, because it was not
appealable at that stage. As a result the
matter, notionally at any
rate, would have to proceed, at unnecessary cost and waste of time,
until the merits were finally determined.
Only then would the
condonation order become appealable, with the outcome of the appeal
a foregone conclusion. This would
be at variance with the
Legislature’s underlying policy (see para [5] above) and could
never have been what it intended.
[12] Even if no order as to costs is made in
determining a dispute effectively concerning jurisdiction, it is
inconceivable that
the Legislature could have intended, given the
policy underlying the Act, that an issue of jurisdiction, which
could be decided
expeditiously and relatively cheaply on appeal,
should have to wait to be resolved until after the merits have been
dealt with
- a matter which might take considerable time. While
this may offend against the principle that matters should not be
dealt
with piecemeal, it would be more than justified because of the
possible avoidance of long trials and the potential saving of time
and money.
[13] The qualification I referred to in para [11] above
is this: Clearly s 17(21A)(a) cannot be interpreted to permit
appeals
in respect of all preliminary decisions lest there be a
plethora of appeals and the piecemeal disposal of issues. This
would
militate against the expeditious disposal of matters and
result in unnecessary costs being incurred. A line must of
necessity
be drawn somewhere. In my view, the Legislature must be
taken to have intended that for a decision of the IC in relation to
a preliminary issue to be appealable it must, in keeping with
general principle, at least dispose of a substantial issue and be
final and definitive in its effect (
cf Zweni
v Minister of Law and Order
1993(1) SA 523
(A) at 532 I-533 A;
Moch v Nedtravel (Pty)
Ltd t/a American Express Travel Service
1996(3) SA 1 (A) at 10 E-G). Whether or not a decision on a
preliminary issue falls into that category is a matter for the LAC
to determine.
[14] In the result the IC’s order granting
condonation was appealable, and the LAC was correct in so holding.
[15] The LAC’s reasons for upholding the
respondents’ appeal against the granting of condonation appear
from the judgment
at 1540 A to 1542 C. It concluded (at 1542 B-C)
that:
“
Having regard to the defective nature of the
application for condonation for the late referral; the inadequacy of
the explanation;
the failure to canvass prospects of success at all
in the application; and the substantial period of delay, whether
three or
five months, the application for condonation should not
have been granted.”
[16] In granting condonation to the appellants the IC
was required to exercise a judicial discretion. Its decision was
accordingly
only open to attack on limited grounds (see
Ex
parte Neethling and Others
1951(4) SA 331
(A) at 335 D-F). One such ground would be that the IC failed to act
“for substantial reasons”. In
holding that “condonation
should not have been granted” the LAC obviously intended to
convey that no substantial
reasons existed for the IC’s
decision - this is a necessary inference to be drawn from a perusal
of the IC’s judgment.
The LAC cannot be faulted for coming to
this conclusion. It analysed the relevant facts carefully and its
reasoning is both
persuasive and compelling. Nothing can usefully
be added to its judgment in this regard and no point would be served
traversing
the same ground. Suffice it to say that I agree with its
reasoning and conclusion. In the result the LAC correctly upheld
the
respondent’s appeal to it.
[17] The appeal is dismissed, with costs.
___________________
J W SMALBERGER
JUDGE OF APPEAL
MARAIS JA) Concur
ZULMAN JA JA)
MELUNSKY AJA)
MPATI AJA AJA)