Chevron Engineering (Pty) Ltd v Nkambule and Others (1) (68/2002) [2003] ZASCA 68; [2003] 3 All SA 365 (SCA) (2 June 2003)

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[2003] ZASCA 68
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Chevron Engineering (Pty) Ltd v Nkambule and Others (1) (68/2002) [2003] ZASCA 68; [2003] 3 All SA 365 (SCA); 2003 (5) SA 206 (SCA); (2003) 24 ILJ 1331 (SCA); [2003] 7 BLLR 631 (SCA) (2 June 2003)

REPUBLIC OF SOUTH AFRICA
IN THE SUPREME COURT OF
APPEAL
OF SOUTH AFRICA
Case number: 68/2002
Reportable
In the matter between:
CHEVRON ENGINEERING (PTY) LTD
Applicant
and
NKAMBULE, JOSEPH AND 23 OTHERS
Respondents
CORAM
: VIVIER ADP, ZULMAN, FARLAM, LEWIS JJA et
MLAMBO AJA
HEARD
: 7 MAY 2003
DELIVERED
: 2 JUNE 2003
SUMMARY:
An appeal lies,
without leave, to the Supreme Court of Appeal from a decision of the
Labour Appeal Court given in terms of item 22(5)
and (6) of Schedule
7 of
Labour Relations Act 66 of 1995
.
_____________________________________________________________
JUDGMENT
_____________________________________________________________
FARLAM JA
INTRODUCTION
[1]
In this matter the applicant seeks an order
granting it leave to appeal against a judgment and order given
against it by the Labour
Appeal Court (to which I shall hereinafter
refer as ‘the LAC’) on 28 November 2000. In this judgment, which
has been reported
as
Chevron Engineering (Pty) Ltd v Nkambule and
Others
(2001) 22
ILJ
627 (LAC), the LAC dismissed the
applicant’s appeal against a judgment given on 15 October 1999 by
the industrial court which ordered
the applicant to reinstate the
respondents, whom the applicant had dismissed from its employ on 23
March 1995 as a result of their
participation in an illegal strike on
23 March 1995, with effect from the date of their dismissal.
[2]
As the dispute between the applicant and the
respondents was pending in the industrial court when the Labour
Relations Act 28 of 1956
(to which I shall refer in what follows as
‘the 1956 Act’), in terms of which the industrial court was
established and functioned,
was repealed by the Labour Relations Act
66 of 1995 (to which I shall refer in what follows as ‘the 1995
Act’) the proceedings
in the industrial court continued as if the
1956 Act had not been repealed (see item 22(2) of Schedule 7 of the
1995 Act, the terms
of which are set out in paragraph [10] below) but
the applicant’s appeal from the judgment of the industrial court
was heard by
the LAC, which was established by s 167(1) of the 1995
Act (see item 22(5) of Schedule 7, the terms of which are also set
out in
paragraph [10] below).
[3]
The judgment delivered by the LAC in the
applicant’s appeal was delivered by Nicholson JA, with whom Zondo
JP concurred. The third
member of the Court, Nugent AJA, dissented.
He held that the appeal should have succeeded and that the relief
granted by the industrial
court should have been set aside and
replaced by an order reinstating the respondents with retrospective
effect for a period of six
months.
[4]
The applicant thereafter gave notice of its
intention to apply to the LAC, ‘in so far as it may be necessary’,
for leave to appeal
to this Court against the LAC’s decision. The
application for leave was refused by the LAC in a judgment delivered
by Nugent AJA,
with whom the other two members of the court
concurred.
[5]
Nugent AJA stated that item 22(6) of Schedule
7 of the 1995 Act (which is set out in paragraph [10] below) provided
expressly that
no appeal would lie against the LAC’s judgment in a
case such as this. He referred to a submission advanced before the
court on
the applicant’s behalf that a further appeal from the
LAC’s judgment to this Court is permitted by s 168(3) of the
Constitution
(Act 108 of 1996), which is set out in paragraph [11]
below, but said that it was not necessary to express a view thereon
because
if the applicant was entitled to appeal it did not require
leave because neither the Constitution nor the 1995 Act required such
leave to be sought and obtained from the LAC.
[6]
He also held that item 22(6) provided in
express terms that no appeal shall lie from a decision of the LAC
hearing an appeal from
an industrial court in terms of item 22(5).
[7]
The applicant was thus not entitled to leave
to appeal, either because no further appeal was allowed or because,
if there was an appeal
(because item 22(6) is in conflict with the
Constitution) no leave was required.
[8]
The applicant has now, as I have said,
applied for leave to appeal against the LAC’s decision dismissing
its appeal. In the alternative
it has sought an order giving such
directions as this Court deems appropriate for the prosecution and
conduct of its appeal against
the LAC’s judgment to this Court.
RELEVANT STATUTORY PROVISIONS
[9]
Before the contentions of the parties are
summarised it will be appropriate to set out the provisions of item
22 of Schedule 7, as
far as is material, together with s 168(3) of
the Constitution.
[10]
Item 22 reads:
‘(2) Any dispute in respect of which proceedings were pending in an
industrial court ... must be proceeded with as if the labour
relations laws [by which is meant,
inter alia,
the 1956 Act]
had not been repealed.
....
(5) Any appeal from a decision of the industrial court ... in terms
of sub-item ... (2) must be made to the Labour Appeal Court
established
by section 167 of this Act and that Labour Appeal Court
must deal with the appeal as if the labour relations laws had not
been repealed.
(6) Despite the provisions of any other law but subject to the
Constitution, no appeal will lie against any judgment or order given
or made by the Labour Appeal Court established by this Act in
determining any appeal brought in terms of sub-item (5).’
[11]
Section 168(3) of the Constitution reads as
follows:
‘(3) The Supreme Court of Appeal may decide appeals in any matter.
It is the highest court of appeal except in constitutional matters,
and may decide only –
(a) appeals;
(b) issues connected with appeals; and
(c) any other matter that may be referred to it in circumstances
defined by an Act of Parliament.’
CONTENTIONS OF THE PARTIES
[12]
Mr
Watt-Pringle,
who appeared with Mr
Snyckers
for the applicant, contended that item 22(6) should
be read so as to be consistent with the constitutional provision in s
168(3),
with the result that on a proper construction of the sub-item
an appeal does lie to this Court from a decision of the LAC given in
an appeal from the industrial court. In the alternative he submitted
that if the sub-item could not be read in this way it was
unconstitutional,
with the result that the applicant would have an
appeal to this Court in terms of s 168(3) of the Constitution.
[13]
Mr
Vally,
who appeared on behalf of
the respondents, submitted that the decision of the LAC dismissing
the applicant’s appeal from the industrial
court was not
appealable. He relied in this regard on the judgment of the LAC in
Khoza v Gypsum Industries Ltd
(1998) 19
ILJ
53 (LAC),
in which it was held (at 55G-H) by Myburgh JP, with whom Froneman DJP
and Conradie JA concurred, that ‘in terms of item
22(6) of schedule
7 no appeal lies against any judgment or order given or made by the
new Labour Appeal Court in determining any
appeal brought in terms of
sub-item (5)’. In support of this conclusion Myburgh JP said (at
55H-I):
‘The provisions of item 22(6) are consistent with the provisions of
the 1995 Act. The new Labour Appeal Court –
º is a superior court that has authority, inherent powers and
standing, in relation to matters under its jurisdiction, equal
to
that which the Supreme Court of Appeal has in relation to matters
under its jurisdiction (s 167(3));
º is the final court of appeal in respect of all judgments and
orders made by the Labour Court in respect of the matters in
its
exclusive jurisdiction (s 167(2)).
Subject to the Constitution and despite any other law, no appeal lies
against any decision, judgment or order given by the Labour
Appeal
Court (s 183).’
[14]
Mr
Vally
argued further that Mr
Watt-Pringle’s
alternative argument that item 22(6) of
Schedule 7 was unconstitutional should be rejected because the
applicant had not brought a
substantive application to declare it
unconstitutional and that such an application can in any event not be
entertained by this Court
as it lacks original jurisdiction. It is
authorised by s 168(3) of the Constitution to hear only appeals,
issues connected with
appeals and other matters referred to it in
terms of an Act of Parliament providing for such referral.
DISCUSSION
[15]
The first question to be considered is
whether on a proper interpretation of item 22(6) an appeal does lie
to this Court from all
decisions of the LAC given in terms of item
22(5), ie, when hearing appeals from the industrial court. If it were
not for the inclusion
of the words ‘subject to the Constitution’
the wording of sub-item (6) would impel one to the conclusion that
the drafters of
the sub-item did not intend to permit such appeals,
which would raise starkly the question whether the sub-item could
withstand constitutional
scrutiny, given the clear wording of s
168(3) of the Constitution to the effect that this Court has
jurisdiction to decide appeals
‘in
any
matter’ and that it
is
the
highest court of appeal in all matters, except
constitutional matters where it is the penultimate court of appeal.
(See further the
comments of Ngcobo J in
Nehawu v University of
Cape Town and Others
2003(2) BCLR 154 (CC) at 162B-D (para
[21]).)
[16]
In my opinion the inclusion of the words
‘subject to the Constitution’ saves item 22(6) from being found
to be unconstitutional.
They can only mean that if the Constitution
says something different in regard to the possibility of an appeal
lying to some other
court from a decision of the LAC hearing an
appeal under item 22(5) from what is said later in the sub-item then
what the Constitution
says will prevail. This is not because what is
said in the sub-item will be unconstitutional but because the
sub-item itself provides
that whatever the Constitution says on the
point (if in conflict with what follows) will prevail in terms of the
sub-item itself.
This follows from the use of the expression ‘subject
to’ which indicates clearly that that to which the rest of the
sub-item
is subject is paramount and will override it: see
S v
Marwane
1982 (3) SA 717
(AD) at 747H-748A and
Zantsi v Council
of State, Ciskei and Others
[1995] ZACC 9
;
1995 (4) SA 615
(CC) at 624 D-G (para
[27]).
[17]
There was some discussion during the hearing
of the appeal as to why these words were inserted in the sub-item.
Several possibilities
suggest themselves but in view of the clear
meaning of the words used and its effect speculation on the point
would in my view be
an essentially unprofitable exercise.
[18]
As regards the decision of the LAC on which
Mr
Vally
sought to rely,
viz Khoza v Gypsum Industries Ltd,
supra,
I agree with Mr
Watt-Pringle’s
submission that
that decision was clearly arrived at
per incuriam.
What
happened was that counsel for the applicant in that case applied for
leave to appeal to this Court from a judgment of the LAC
sitting in
terms of item 22(5). Neither the applicant’s attorney nor his
counsel had been aware when the application was launched
that item 22
had been amended in September 1996 by Act 42 of 1996 which,
inter
alia,
inserted item 22(6) and despite having their attention
drawn thereto they ‘stubbornly’ (as the Court put it) pursued the
application.
In consequence the applicant’s attorneys were ordered
to pay the costs of the application
de bonis propriis
on an
attorney and client scale. No argument was presented to the court on
the proper interpretation of item 22(6), read in the light
of s
168(3) of the Constitution, and the point was not considered.
Similarly the comment by Nugent AJA, to which reference was made
in
paragraph [6] above, that item 22(6) provided in express terms that
no appeal would lie from a decision of the LAC hearing an
appeal from
an industrial court in terms of item 22(5), is clearly erroneous
because it overlooks the inclusion of the all-important
phrase
‘subject to the Constitution’.
[19]
I am accordingly satisfied for the reasons I
have given that the applicant is entitled to appeal from the LAC’s
decision dismissing
its appeal from the decision of the industrial
court. I agree with Nugent AJA’s view expressed in the LAC’s
judgment refusing
leave to appeal to this Court that leave is not a
pre-requisite in the Constitution or the 1995 Act and there is also
no provision
in the Supreme Court Act 59 of 1959 which requires such
leave: it would be different if the LAC were a division of the High
Court
because ss 20 and 21 of Act 59 of 1959 would then apply. But
it is clear that the LAC falls in the category of other courts
established
in terms of an Act of Parliament to which reference is
made in s 166(e) of the Constitution.
[20]
In view of my conclusion that the applicant
is entitled to appeal to this Court against the decision of the LAC
and that it does not
require leave to do so, all that remains for
consideration is its alternative prayer for directions in regard to
further prosecution
and conduct of the appeal. In my view all that
need be ordered in that regard is that the provisions of Rule 10 of
this Court’s
Rules must be complied with by the applicant on or
before 30 June 2003 and by the respondent on or before 30 July 2003.
[21]
As far as costs are concerned the applicant
asked that the costs of the applicant’s application for leave to
appeal in the LAC and
this application be costs in the cause of the
appeal.
[22]
In view of my conclusion that the applicant
did not need leave to appeal the LAC was correct in dismissing the
application for leave.
No basis accordingly exists for ordering the
costs of that application to be costs in the cause of the appeal. I
agree, however,
that it is appropriate to order that the costs of
this application should be costs in the cause of the appeal.
ORDER
[23]
The following order is made:
1. The following directions are given as to the further
prosecution and conduct of this appeal:
The provisions of Rule 10 of this Court’s Rules must
be complied with by the appellant on or before 30 June 2003 and by
the respondent
on or before 30 July 2003.
2. The costs of this application are costs in the cause
of the appeal.
.....................
IG FARLAM
JUDGE OF APPEAL
CONCURRING
VIVIER ADP
ZULMAN JA
LEWIS JA
MLAMBO AJA