THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: JR 1161/21
In the matter between:
SAMWU OBO 157 MEMBERS Applicant
and
PIOTRANS (PTY) LTD First Respondent
PRINCE KEKANA N.O. Second Respondent
SOUT AFRICAN ROAD PASSENGER Third Respondent
BARGAINING COUINCIL
Heard: 05 JULY 2024
Delivered: 28 JANUARY 2025 (This judgment was handed down
electronically by email ing a copy to the parties. The 28 January 2025 is
deemed to be the date of delivery of this judgment).
JUDGMENT
2
MPHAHLELE AJ
INTRODUCTION:
[1] The Applicant in this matter is the South African Municipal Workers
Union (‘SAMWU’), a registered trade union in terms of the provisions of the
Labour Relations Act No. 55 of 1996 (“LRA”).
[2] SAMWU on 23 June 2021 instituted a review application on its own
behalf and on behalf of 157 of its members who were bus drivers of the First
Respondent.
[3] The review application is against the A rbitration Award of the Second
Respondent dated 02 May 2021, which found that the dismissal of the 157
members of SAMWU, who were bus drivers, was substantively and
procedurally fair .
[4] The First Respondent is PioTrans Proprietary Limited (‘PioTrans’), a
private company which manages and operates the Rea Vaya Bus Rapid Transit
(BRT) service on behalf of the City of Johannesburg, for a fee and a t the time of
the dismissals of the 157 bus drivers, PioTrans also administered the affairs of
Litsamaiso Proprietary Limited, a bus operating company providing the Rea
Vaya BRT service to the City of Johannesburg, on different routes.
BRIEF BACKGROUND OF THE MATTER.
[5] This matter has a long and protracted history but due to reasons which
will be more apparent below, I only deal with facts that are pertinent to the order
I intend to make.
[6] On 02 February 2015 bus drivers employed by both PioTrans and
Litsamayiso withdrew their labour. SAMWU contended that m any of PioTrans
bus drivers stayed away from work on that day and that m any of the bus drivers
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who were rostered simply left their buses at the depots at Ellis Park and
Dobsonville.
[7] It is, however, common cause that buses were used to block
intersections in the Johannesburg CBD and a ll of the bus drivers after
assembl ing at the Library Gardens, proceeded to the JRA offices to speak to
the MMC for Transport.
[8] PioTrans later sent notices to attend of disciplinary inquiries to the
employees scheduled for 10 February 2015 in respect of various allegations of
gross misconduct committed on 0 2 February 201 5 relating to:
8.1 Failure and/or refus al to drive on the route that w ere issued to
them by dispatch in accordance with their waybills; and/or
8.2 Failure and/or refus al to park the bus es in the prescribed
authorised area at the end of their route in accordance with the waybill.
In this regard it wa s alleged that they parked the bus es in an
unauthorised area in the Johannesburg CBD in contravention of the
Company’s policies, rules and procedures and municipal laws; and/or
8.3 They purposely attempted to sabotage the Company’s services by
conspir ing with other drivers to bring the Company busses to a halt.
8.4 They l eft the bus unattended in an unauthorised area in
contravention of the Company’s policies, rules and procedures; and/or
8.5 Disrupted the operations of the Company and brought the
services to a halt i n breach of clause 4.4 / 3.5 of their employment
contract; and/or
8.6 Failure to act in the best interests of the Company in breach of
clause 4.2.13 / 3.3.3 of their employment contract.
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[9] Only nine ( 9) of PioTrans drivers attended their hearings and all of the
157 bus drivers were dismissed. An appeal was unsuccessful and the Applicant
on 18 February 2015 referred an unfair dismissal dispute to the Third
Respondent .
[10] Conciliation meeting was held on 23 March 2015 at which the parties
agreed to separate the conciliation proceedings for PioTrans and that of
Litsamayiso drivers
[11] PioTrans on 21 April 2015 contended the Third Respondent should
dismiss the Applicant’s referral because the official who signed the Referral
Form was no longer a union official . On 29 April 2015, SAMWU withdrew the
referral in response to PioTrans ’ objection and referred a new unfair dismissal
dispute. PioTrans , together with a new referral , brought an application for
condonation of the late referral of the dispute as the referral was 27 days late.
[12] Commissioner Cecilia Brummer in May 2015 refused SAMWU’s
application for condonation but SAMWU referred the ruling to t he Labour Court .
Mr. Justice Molahlehi (as he then was ) on 06 January 2016 reviewed and set
aside the condonation ruling and remitted it to the Third Respondent for
consideration afresh.
[13] Commissioner Ebrahim Patelia on 17 March 2016 granted SAMWU
condonation for the late referral of the unfair dismissal dispute.
[14] On 12 April 2016 PioTrans contended that the matter be referred to the
Labour Court because it concerns an unprotected strike and on 3 May 2016 at
con-arb hearing, PioTrans challenged the bargaining council’s jurisdiction on
grounds that the matter concerns an unprotected strike.
[15] Commissioner Mark Hawyes on 05 May 2016 made a ruling that the
bargaining council lacks jurisdiction and the matter should be referred to the
Labour Court, as it concerns an unprotected strike.
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[16] SAMWU took the matter on review and on 30 May 2017 and Mr Justice
Moshoana of the Labour Court reviewed and set aside the jurisdictional ruling
and held that the Third Respondent had jurisdiction to determine the fairness of
the dismissals for misconduct .
[17] The arbitration proceedings commenced on 20 November 2017 before
Commissioner Prince Kekana ( “Second Respondent ”).
[18] SAMWU allegedly on 13 May 2021 received the A rbitration Award dated
02 May 2021 and as stated above it was to the effect that the dismissal of the
157 members of SAMWU was substantively and procedurally fair and on 23 June 2021 the SAMWU filed their r eview application .
[19] The Applicant submitted that the primary ground for review is the alleged
misapplication of the doctrine of common purpose to the facts in this matter .
The Applicant further contended that the Second Respondent should not have
found them guilty by association for the misconduct of abandoning buses.
Instead, he should have identified individual acts of misconduct committed by all
of the 157 members of SAMWU .
[20] Piotrans opposes the review on the following grounds:
20.1 The review application cannot proceed as 21 members were
deceased and there is no mandate from their respective executors or
notices of substitution. A Rule 7(1) notice has been delivered,
challenging locus standi of SAMWU;
20.2 Approximately 150 members ceased to work and failed to attend
on the same day (02 Feb 2015), causing Piotrans operations to become
completely non- operational. The misconduct extends beyond the mere
abandonment of buses; it includes failing to drive their routes, sabotaging
the company by halting its operations, disrupting services, and breaching
their employment contracts. These gross misconduct s rendered Piotrans,
a key transport provider in Johannesburg, non- operational, thereby
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harming the public who relied on its consistent and reliable services,
justifying the dismissal.
20.3 Regarding common purpose, 150 members planned the
misconduct on 30 January 2015 and, through a group effort and
association with each other, committed the aforementioned misconduct s.
The evidence is both direct and circumstantial.
20.4 The Applicants failed to call sufficient reliable and credible
witnesses to suggest any other plausible conclusion.
20.5 Reinstatement is impractical as Piotrans is under business rescue
and it would lead to the company's final liquidation. Furthermore, the
relationship between the parties has become intolerable and has broken
down.
[21] The Applicant seek s reinstatement and back pay, alternatively
compensation.
[22] Piotrans seeks the dismissal of the review application. Alternatively,
should the matter be removed due to the deceased employees' locus standi ,
Piotrans seeks costs.
THE AUTHORITY OF SAMWU TO ACT ON BEHALF OF 157 DISMISSED
EMPLOYEES.
[23] SAMWU alleges that the application for review is in respect of 157
members.
1 This is disputed by Piotrans which alleges that it was apparent at the
arbitration proceedings that SAMWU was acting on behalf of 150 members .2
1 Applicants’ Founding Affidavit, paginated page 2, para. 4.
2 First Respondent’s Answering Affidavit, paginated page 138, para.71.
7
[24] It contended that the number of m embers is actually 150 because certain
employees have settled with Piotrans or their dismissals were found to be fair
by the CCMA when they pursued separate disputes in that forum (Messrs Richard Maluleka, Alphas Chauke and Clement Zondo)
[25] In Reply SAMWU submitted that:
“The award under review is in respect of 157 members. This clearly
contradicts the deponent’s repeated assertion that the review application
is in respect of 150 members, which is accordingly denied”.
[26] It is for SAMWU to provide evidence the members it is representing and
their number more so in the light of the challenge by Piotrans. SAMWU has
failed to do so save to state that it represents those employees referred to in the
arbitration award which in my view is insufficient proof in the light of the
challenge to their authority in this review application.
[27] This Court in CEPPWAWU & others v Express Payroll CC3 said the
following:
“The Court noted that, of the 205 applicant employees, only 83 had
signed powers of attorney signifying their assent to be represented by
the applicants’ attorneys. There was no proof before the court that the
employees were union members at the time of their dismissal. The Court
found it difficult to understand why, since the matter had been dragging
on for more than a year, the applicant’s attorneys had not simply filed
powers of attorney when asked to do so. While registered unions and
appointed attorneys are entitled to represent employees, the respondent
was not seeking to prevent the union or the attorneys from appearing.
The respondent was merely asking for proof of their authority to
represent the employees, as it was entitled to do. The obstinacy of the
applicants’ attorneys had caused the matter to drag on unnecessarily.
3 [2011] 11 BLLR 1061 (LC).
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The sensible solution was, therefore, to invoke rule 7 of the High Court
Rules and direct the applicants’ attorneys to prove their authority to act
on behalf of those employees who had not signed powers of attorney.
The Court ruled that the applicants’ attorneys were not entitled to represent the employees until they had filed the necessary powers of attorney, and the applicants were ordered to pay the costs of the interlocutory application. ”
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[28] I am the view that even in this matter , all what Piotrans seeks is proof of
who amongst the Applicants is represented by SAMWU. [29] At the time SAMWU instituted the review application on 24 June 2021, it
was aware that some of its members were deceased.
[30] In its Founding Affidavit, the Applicants states the following:
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“The 157 SAMWU members on whose behalf we bring this application
were employed by PioTrans as bus drivers. Some of them are now deceased and the necessary applications to substitute their executors for them will be brought indue course.”
[31] This never happened and on 05 July 2024, Mr Paul Moeketsi Tati,
Applicant’s attorney of record deposed to an affidavit to the effect that on 03
July 2024, two days before the hearing of the matter, he received from SAMWU a list of its members who were part of the 157 Applicants who has since passed
on.
[32] They were the following: Mashudu Modau, Sipho J Makhoba, Sevha R
Nkuna, Lungile Ngubane, Thabo I Sekatane, Mcwayizeni E Mdumbe, Jacob Sebolai, Sydwell B Mungwe, Mfusi H Sapepa, Mzondwana T Shivuri, Mathews Mogodi, Siboniso Gcaba, Abner M Plati, Sipho S Nomkonko, Makhosonke V
4 Page 1062 – [2011] 11 BLLR 1061 (LC) .
5 Applicants’ Founding Affidavit, paginated page 6, para. 8.
9
Khumalo, Shadrack M Van Rooyen, Mbekezeli Zikote, Mahlebe (surname
unknown), Ramotso, Christopher Mbele and Mahatshi Ndlovu.
[33] No death certificates were attached to the Affidavit.
[34] As in the case of Dlwati v King Sabata Dalindyebo FET College there is
no evidence as to what steps, if any, have been taken to date by the Applicant’s
legal representatives with a view to engaging the Executors or Executrixes
since the passing of the above members of SAMWU . More importantly, no
evidence has been placed before this Court as to whether an Executors or
Executrixes have been appointed and, if so, their identit ies and the dates of
appointment. This is so despite the Applicant having being aware when the
review application was instituted that there is a need to bring an application for
substitution of some of the Applicants by their executors or executrixes.
[35] I agree with the decision of Dlwati v King Sabata Dalindyebo FET
College
6 that “it will nonetheless be impermissible for the Court to allow a
further step to be taken in the proceedings until the appointment of an Executor.”
[36] The Court further said:
“Whilst the Court will naturally still possess the inherent jurisdiction to grant a stay of proceedings if it is demonstrated that an Executor is yet to be appointed (in most cases that would be the obvious order to make if there was an issue as to the status of the proceedings), nothing prevents the Court from granting a different order such as the postponement of the matter if the interests of justice so require.
7 Given the peculiar facts of
this matter and in particular the undertaking by the Applicant’s legal
6 (P50/15) [2021] ZALCPE 6; (2021) 42 ILJ 2427 (LC) (18 August 2021) at para. 21.
7 Cf. Wie obo G v MEC for Health and Social Development of the Gauteng Provincial
Government (05715/2013) [2016] ZAGPJHC 113 (19 May 2016) and G Walker Engineering
CC t/a Atlantic Steam Services v First Garment Rental (Pty) Ltd 2011 (5) SA 14 (WCC).
10
representatives to engage with the Executor or the prospective Executor,
the appropriate order, in the event of the application not being dismissed, would be to postpone it.”
[37] Nothing is further than the truth that “it would be grossly unfair if an
opposing party could take steps during the hiatus between the death of a party and the appointment of an Executor. During that period the deceased estate is
defenceless. There is no Executor to protect it. A deceased estate is not a legal
persona and consists of an aggregate of assets and obligations
8. It acts through
its Executor9. An injustice would thus occur if the heirs and beneficiaries of the
deceased estate were to be prejudiced or penalised because of a delay in the appointment of an Executor .”
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[38] The High Court also in Eskom v Soweto City Council11 held that the
remedy of a respondent who wishes to challenge the authority of a person
allegedly acting on behalf of the purported Applicant, is provided for in rule 7(1).
This was confirmed by the Supreme Court of Appeal in Unlawful Occupiers of
the School Site v City of Johannesburg.12
[39] A reading of the Rule 7(1) conveys that a person’s authority to act on
behalf of a party may be challenged within ten days after it has come to the
notice of a party that such person is so acting.
[40] The current review application has been instituted on 24 June 2024 and
by July 2024, no steps have been taken to bring the s ubstitution application
despite earlier undertaking to so by the Applicant and there is no explanation as
to why such steps were not been taken. All what the Applicant submitted in
8 Commissioner for Inland Revenue v Emary NO 1961 (2) SA 621 (A) at 624- 625.
9 Gross and Others v Pentz 1996 (4) SA 617 (SCA) 625 A – B. “In my view, it should be
accepted as a general rule of our law that the proper person to act in legal proceedings on
behalf of a deceased estate is the executor thereof and that normally a beneficiary in the estate does not have locus standi to do so. ”
10 Ibid, para 29.
11 1992 (2) SA 703 (W).
12 [2005] 2 All SA 108 (SCA)
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during the hearing of the review application was that the review can be dealt
with and finalised and the Applicants be order to bring such an application thereafter. I do not agree with this approach more so in the light of the Rule 7 (1) of Piotrans .
[41] Since the proper person to act in legal proceedings on behalf of a
deceased estate is the Executor of Executrix thereof ; SAMWU does not have
locus standi to act on behalf of the deceased employees and as a result the
matter cannot proceed with the parties as they are before me.
[42] The fact that the Executors or E xecutrixes might also decide to appoint
their own legal representatives or deal with the matter differently that the manner in which the current representatives do, flies against the suggestion that the matter should nevertheless proceed with the parties as they are before me. I
am of this firm view being conscious of the need for expeditious resolution of
labour matter s; but that cannot be at the cost of proper adjudication of matters.
[43] The authority of the SAMWU to act on behalf of 157 dismissed bus
operators is being challenged in these proceedings. The challenge raises a
question as to who amongst the 157 members is no longer part of these proceedings or represented by SAMWU? Without a clear answer to this
question, I do not see why proceedings should continue with the parties as they are before me. The situation is exacerbated by the fact that some of the
members are deceased and the Applicant must provide this Court with proof of whom amongst the original 157 members are still part of these proceedings more so that the matter involves a claim for reinstatement or compensation.
[44] The death of some of the employees erases the prospect of their
reinstatement and the claims which an Executor or Executrix can persist with
are different . The reason for this is that the Executor or Executrix of a deceased
estate does not step into the shoes of the deceased. The Executor and the deceased are, in law, separate personae
13.
13 SA General Electric Co (Pty) Ltd v Sharfman and Others N.N.O. 1981 (1) SA 592 (W) at
597H -598A
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[45] In the notice of motion of the Applicant seeks the following orders:
“1. That the arbitration award made by the second respondent under
the auspices of the third respondent under case number RPNT 2716 be reviewed, set aside and corrected;
2. That the individual applicants’ dismissals were unfair and that they
be retrospectively reinstated in their employ with backpay and without
any loss of benefits which accrued during the period of their unfair
dismissal;”
[46] It goes without say that the deceased employees are incapable of
tendering their services and accordingly cannot be reinstated in terms of an
arbitration award as prayed in the notice of motion.
[47] The relief set out in the notice of motion in the review application, if I
were to grant it will be of no value to the deceased employees . It is for this
reason that the deceased should be substituted by their E xecutors or
Executrixes before a decision c an be made on the review application.
[48] Having expressed the view that I am not in a position to preside over the
review application, what I need to determine is what should I do with the application before me.
[49] The Court always retains a discretion to grant a postponement if a failure
to do so would result in an injustice
14. In determining whether an injustice would
occur one of the factors to be taken into account would be the consequences of a failure to grant a postponement
15.
14 Myburgh Transport v Botha t/a SA Truck Bodies 1991 (3) SA 310 (NmSC) at 315H.
15 Shilubana and Others v Nwamitwa 2008 (9) BCLR 914 (CC) at para 11.
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[50] Executors or Executrixes for the deceased employees have not been
appointed and if the matter is not postponed an injustice may occur because an
Executor s or Executrixes of the deceased employees will be denied an
opportunity to decide as to whether it would be in the interests of the estate of the late of the decease employees to pursue their pending claim.
[51] I am inclined to grant the postponement in these circumstances to
obviate the injustices alluded above. This postponement could have been avoided had the Applicant brought a substitution application as the Applicant has undertaken wayback on 24 June 2021 but failed to do so. Even when the matter was heard, there was no such an application and the situation remains so to date. It is for this reason that I am of the view that the Applicant must pay
the costs associated with the postponement.
[52] I am not in a position to postpone the matter to a particular date as I am
not certain how long it will take to have the substitution application finalised. [53] The Applicant’s legal representatives will have to have discussions with
the Executor s or Executrixes of the deceased employees, take instructions and
follow the requisite procedure to have the deceased employees properly before
Court before the review application is re- enrolled and ripe for hearing, a period
which I am unable to determine at this stage. [54] In order for me to know who amongst the dismissed members of
SAMWU is still persisting with this claim, taking into consideration the protracted history of the matter, the Applicant are required to file confirmatory affidavits of the dismissed employees who are still part of these proceedings within 60 days of the order .
[55] In the results the following order is made:
Order
1. The review application is postponed sine die;
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2. The Applicants are ordered to pay the costs occasioned by the
postponement;
3. The Applicants are order ed to institute the necessary proceedings
for substitution by the Executor or E xecutrix of the deceased employees;
4. The Applicant must confirm by way of an affidavit deposed by
each of the dismissed employee, Executor or Executrix as to whom
amongst the 157 dismissed, is SAMWU still having the necessary
authority to act on their behalf in these proceedings;
5. The substitution proceedings and/or confirmatory affidavits
referred to in paragraph 4 above must be delivered within thirty (30) days
of this order .
M S MPHAHLELE AJ
Acting Judge of the Labour Court of South Africa.
Appearances :
For the A pplicant: Adv F A Boda SC and Adv S Harvey
Instructed by: Tati Attorneys Inc.
For the R espondent: Adv T Mathopo and Adv E Essa
Instructed by: Aadil Mayet Inc.