Chevron Engineering (Pty) Ltd v Nkambule and Others (2) (68/2002) [2003] ZASCA 150; [2004] 1 All SA 137 (SCA) (2 December 2003)

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[2003] ZASCA 150
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Chevron Engineering (Pty) Ltd v Nkambule and Others (2) (68/2002) [2003] ZASCA 150; [2004] 1 All SA 137 (SCA); 2004 (3) SA 495 (SCA); [2004] 3 BLLR 214 (SCA) (2 December 2003)

IN THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Case Number 68/2002
Reportable
In the matter between
CHEVRON
ENGINEERING (PTY) LTD
Appellant
And
NKAMBULE,
JOSEPH AND 23 OTHERS
Respondents
­­____________________________________________________
CORAM:
MPATI
DP; ZULMAN JA, FARLAM JA, LEWIS JA AND MLAMBO AJA
HEARD:
10
NOVEMBER 2003
DELIVERED:
2
DECEMBER 2003
SUMMARY: Labour Relations Act 28 of
1956 – s 46(9)(c) read with s 49(3)(b) – Industrial Court
precluded from granting reinstatement
order retrospective beyond six
months.
JUDGMENT
MLAMBO AJA
­­­­­­­­­­­
[1] This is an appeal
against a judgment and order of the Labour Appeal Court upholding an
Industrial Court order which reinstated
the respondents in the
appellant’s employment retrospectively to the date of their
dismissal.
[2] The appellant, a
manufacturer of tubeless steel pipe fittings and irrigation
equipment, dismissed its entire production workforce
save for one
employee, on 23 March 1995, for participation in an illegal strike.
The strike was the culmination of a dispute between
the parties
relating to their religious practices.
[3] From January 1995 the
employees of the appellant directed numerous requests to the
appellant’s owner and managing director,
Mr Edgar Rudge, for
permission to bring an African traditional healer to the appellant’s
premises to cleanse it of some ‘muti’
which was allegedly causing
illness amongst the employees. Rudge considered these requests an
affront to his deep Christian faith,
and told the employees as much.
Repeatedly he informed the employees that he would only allow ‘a
man of God’, as he put it,
to solve the problem. The National
Union of Metalworkers of South Africa (NUMSA), which represented a
majority of the appellant’s
workforce, did not support the
employees’ requests.
[4] With no breakthrough
in the impasse all the 124 production employees, both unionised and
non-unionised, save for one, embarked
on a strike on 23 March 1995.
The appellant issued three ultimata at 8h30, 10h30 and 15h30 calling
on the employees to return to
work. The third and final ultimatum
concluded with the following:
‘
Take therefore notice
that unless you resume your work by end of business today, you will
be dismissed.’
That ultimatum, like the
two earlier ones, was not heeded by the striking employees even after
Rudge involved NUMSA, which did not
support the strike, as well as a
call he made to the local branch of the African National Congress.
When the employees failed to
heed the afternoon ultimatum the
appellant dismissed them and Rudge advised them of it the next
morning when they returned to the
premises.
[5] After
advising the employees of their dismissal Rudge also advised them
that the appellant would be closed for some time, during
which
management would decide, after consulting its main customers, how
best to continue with business operations. Rudge also advised
the
dismissed employees that the appellant could re-open on 3 April 1995
‘to receive job applications for those jobs which will
still be
available’. He also informed them that the appellant reserved the
right to appoint
‘
the best applicant for
a particular job, and therefore cannot guarantee re-employment to any
particular ex-employee’.
[6] On the morning of 3
April 1995 the dismissed employees assembled outside the appellant’s
premises. In the course of the morning
Rudge put up two lists on a
wooden pole: one was of the 100 employees offered re-employment, and
the other list comprised the names
of the 24 employees who were not
offered re-employment.
[7] At about midday on
the same day a certain Mr Maluleka, whose assistance had been
solicited by shopstewards, arrived at the appellant’s
premises. He
was presented to Rudge as a Christian prophet who had agreed to
cleanse the premises of the ‘muti’. After satisfying
himself
that Maluleka was ‘a man of God’, Rudge allowed him to do his
‘work’. Maluleka proceeded to perform a ritual in the
course of
which he dug up a horn. He identified it as the ‘muti’ that was
causing illness amongst the workforce, burnt it to
the apparent
satisfaction of the employees, and left.
[8] The 100 employees
offered re-employment were re-employed on 4 April 1995. The
respondents are some of the employees not re-employed.
They
contested the fairness of their dismissal and instituted proceedings
in terms of s 46(9) of the now-repealed Labour Relations
Act 28 of
1956 (the Act), in the Industrial Court.
[9] During May to August
1997 the Industrial Court (per M D Legodi) heard the matter and
issued a determination on 21 November 1997
holding that the dismissal
of the employees was unfair and amounted to an unfair labour practice
within the meaning of the Act.
The appellant, not satisfied with the
Industrial Court determination, instituted review proceedings in the
Pretoria High Court on
25 March 1998. On 16 March 1999 the High
Court reviewed and set aside the Industrial Court determination.
[10] The unfair labour
practice proceedings started afresh in the Industrial Court on 19 May
1999, this time before M A E Bulbulia
SC. At the commencement of
those proceedings the respondents formally amended their statement of
case also to include the selective
re-employment of some dismissed
employees as an unfair labour practice.
[11] On 15 October 1999
the Industrial Court determined the dispute in favour of the
respondents, holding that their dismissal and
the selective
re-employment of some employees was unfair and amounted to an unfair
labour practice. The Industrial Court ordered
the appellant to
reinstate the respondents retrospectively to the date of their
dismissal, ie 24 March 1995, a period of 4 years
and 7 months.
[12] It is not apparent
from the Industrial Court determination whether consideration was
given to the applicability of ss 46(9)(c)
and 49(3)(b), nor on what
basis the retrospective reinstatement order was made. Its
justification, however, appears to emanate from
the Industrial
Court’s reasoning that:
‘
In my view all the
dismissed strikers should, in the first instance, have been
re-employed after which the respondent could have implemented
a fair
retrenchment procedure in the light of objective criteria so as to
dispense with the services of those employees who were
no longer
indispensable to the company. By not doing so, the respondent acted
unfairly and in a manner which was arbitrary and subjective.’
[13] On
1 December 1999 the appellant lodged an appeal to the Labour Appeal
Court (Court
a quo
) against the Industrial Court determination
and the reinstatement order. The respondents filed a conditional
cross-appeal that,
in the event of the appeal succeeding, they be
awarded compensation. However, they abandoned their cross appeal. In
the course of
arguing the appeal in the court a
quo
counsel
for the appellant conceded that the selective re-employment was
procedurally unfair and that reinstatement was the appropriate
remedy. The appellant, however, contended that the Industrial Court
was precluded by s 46(9)(c) read with s 49(3)(b) of the Act,
from
granting a reinstatement order retrospectively in excess of six
months.
[14] The
court
a
quo
found that by selectively re-employing
other employees engaged in the same conduct as the respondents, the
appellant had treated
the respondents in a ‘shameful manner’.
The court a
quo
went on to uphold the Industrial Court
determination that the selective re-employment of some dismissed
employees had been unfair
and amounted to an unfair labour practice.
The majority in that court (Zondo JP and Nicholson JA, Nugent AJA
dissenting) concluded
that the Industrial Court was not precluded by
s 46(9)(c) read with s 49(3)(b) of the Act from granting a
reinstatement order retrospective
for longer than six months and
upheld the Industrial Court’s reinstatement order with costs. The
court
a quo
expressed no opinion on that part of the appeal
dealing with the fairness of the dismissal of the respondents.
1
[15] The
appellant now appeals to this Court against the whole judgment of the
court a
quo
, it having been held by this Court that the
appellant had a right of appeal to this Court without leave.
2
[16] In
this appeal the appellant takes issue only with the reinstatement
order of the Industrial Court. In the first place the appellant
reiterates that the Industrial Court was precluded by s 46(9)(c) read
with s 49(3)(b) of the Act from granting a reinstatement order
retrospective for longer than six months. Secondly, the appellant
contends that on the facts of this case, and having conceded
that
reinstatement was appropriate, retrospectivity was inappropriate.
On the other hand counsel for the respondents submitted
that the
court a
quo
was correct in upholding the Industrial Court’s
reinstatement order. Counsel for the respondents submitted that the
provisions
of Section 49 were not axiomatically applicable to
Industrial Court determinations. He submitted, however, in the
altenative, that
should the appellant’s submission on
retrospectivity be upheld, this Court should award the respondents
reinstatement retrospective
for six months, and compensation. I
consider first the competence of the Industrial Court to grant a
reinstatement order retrospective
for longer than six months.
[17] Section 46(9)(c)
provided:
‘
The
Industrial Court shall as soon as possible after receipt of the
reference in terms of paragraph (b), determine the dispute on
such
terms as it may deem reasonable, including but not limited to the
ordering of reinstatement or compensation
,
and the
provisions of sections 49 to 58, 62 and 71 shall mutatis mutandis
apply
in respect of any determination made in terms of this
subsection
in so far as such provisions can
be
so applied
: Provided that such determination may include
any alleged unfair labour practice which is substantially
contemplated by the referral
to the industrial council or with the
terms of reference of the conciliation board, determined in terms of
section 35(3)(b).’ (Emphasis
added).
[18]
In
turn Section 49(3) provided
:
‘
The arbitrator,
arbitrators, umpire or tribunal, as the case may be, shall fix the
date from which the award shall be binding, which
date may be the
date on which the award is made or an earlier or later date, as to
him, them or it may seem equitable: Provided
that-
(a) ………..
(b) no provision of an
award shall be made binding from a date earlier than six months prior
to the date on which the award is made,
or from a date earlier than
the date upon which in the opinion of the arbitrator, arbitrators,
umpire, or tribunal, as the case may
be, the dispute came into
existence, whichever date is the later; and
(c) an award may
provide for the payment to employees of an amount in lieu of any or
all of the benefits to which such employees
become entitled by reason
of the fact that any provision of the award is made binding in
respect of any period prior to the date
on which such award is made.’
[19] The
majority in the court
a
quo,
in concluding that the
limitation found in s 49(3)(b) did not apply to Industrial Court
determinations, reasoned thus
:
‘
(33)
In this matter both counsel accepted that the six month limitation
does not apply to compensation ordered in terms of section
46(9). I
am of the opinion that this is the correct legal position. However
Mr Pretorius persisted in the submission that the limitation
applies
to reinstatement orders.
(34) The question which
arises is what purpose would the legislature have sought to achieve
by placing such a limitation on the extent
of the retrospectivity of
reinstatement orders when it did not place any limitation on the
amount of compensation that could be awarded?
This question arises
because the effect of making a reinstatement order retrospective is
that the employee becomes entitled to back
pay and other benefits.
It is also clear that an order of compensation may include lost
income. The effect of this is that an employee
may secure payment of
the remuneration he would have been paid, had he not been dismissed,
by seeking a retrospective reinstatement
order or by seeking
compensation for loss of income. If that is permissible, and counsel
did not contend otherwise, then I have
grave difficulties with the
submission that the six month limitation applies to a reinstatement
order because then such a limitation
would serve no purpose. In my
view a court should not lightly conclude that the legislature has
enacted a purposeless provision.’
[20]
The crucial section is 46(9)(c). One must determine its proper
meaning read within the context of s 46 as a whole. The section
is
headed: ‘Compulsory arbitration’ and deals almost exclusively
with the resolution of disputes, between employers and employees
engaged in essential services, through compulsory arbitration. In
terms of s 17(11)(c)
3
one of the functions of the Industrial Court was to conduct
arbitrations referred to it in terms of s 46.
[21] Section
46(9), however, was the exception to the compulsory arbitration
scheme of s 46. This subsection dealt with the function
of the
Industrial Court to make determinations (as opposed to arbitrations).
This was specifically provided for in s 17(11)(F).
4
In terms of s 46(9) the Industrial Court had the function to
determine disputes involving parties not engaged in essential
services.
The case before us is one such matter.
[22] In
this appeal this Court is, therefore, essentially called upon to
determine the meaning of s 46(9)(c), in particular the phrases
‘shall
mutatis mutandis
apply’ and ‘in so far as such provisions can
be so
applied …’. The former phrase is the definitive
one in the sense that once its ordinary grammatical meaning is
established the
latter phrase serves only to qualify the application
of the subsection.
[23] The
phrase ‘
mutatis mutandis’
has been authoritatively
interpreted to mean ‘with the necessary changes’. See in this
regard
Touriel v Minister of Internal Affairs, Southern Rhodesia
1946 AD 535
at 544 – 545.
[24] Applying this
interpretation to the clear language of s 46(9)(c) the presence of
the word ‘shall’ makes the provisions of
the sections listed
peremptory, with whatever changes are necessary, unless there are
factors rendering them not applicable. In
other words the provisions
of s 49 in particular, are made applicable to determinations in terms
of s 46(9)(c) unless there are factors
which render them not
applicable.
[25] One
of the reasons advanced by the court
a
quo
that s
49(3)(b) is not applicable, is that s 46(9)(c) would serve no purpose
if employees would be able to secure payment in full
of remuneration
they would have received, had they not been dismissed, through a
retrospective reinstatement order or through compensation.
This
reasoning overlooks the plain language of s 49(3)(b) to the effect
that no award shall be made binding ‘from a date earlier
than six
months prior to the date on which the award is made’ or from the
date on which the dispute came into existence. This
wording is
clearly directed at retrospectivity which only applies to
reinstatement as opposed to compensation orders. Understood
in this
context there can therefore be no prospect of a retrospective
reinstatement order being equated to a compensation order.
A
compensation order is, by its nature, a monetary award and can never
be made retrospective, hence the inapplicabililty of the
six month
limit to it.
5
[26] In
Trident steel (Pty) (Ltd) v John NO
and others
(1987)
ILJ 27 (W) Ackermann J had occasion to consider the meaning of s
46(9)(c). That matter was concerned with a review of an
Industrial
Court determination in which the Industrial Court had,
inter alia
,
ordered the reinstatement of employees retrospectively for six
months. The court held that the six month limit in s 49(3)(b) was
indeed applicable to reinstatement orders of the Industrial Court.
The Court stated at 37B-D:
‘
Mr
Brassey analysed the sections in the mutatis and mutandis provisions
and argued that they afforded an indication that “determine”
had
a wide meaning and included consequential relief of the nature
granted here. I am unable to agree with this approach which,
in my
view, is logically unsound. The sections in question are to be
applied “mutatis mutandis” to the ‘determination’only
‘in
so far as [they] can be so applied’. It seems to me that the
starting point must necessarily be the nature and scope of
the
determination. Without first establishing this, it is not possible
to say which of the mutatis mutandis provisions “can be
so
applied”.
It is not logically permissible,
in my view, first to look at such provisions and then by a process of
inductive reasoning from such
provisions to try and establish what
“determine” means.’
The court continued (at
38J – 39A):
‘
These observations
must, in my view, be equally applicable to the construction of s
46(9)(c) and would dispose of this aspect of Mr
Doctor’s argument.
It was also contended that it could not have been the legislature’s
intention to confer such extensive powers
on the industrial court
where no limitation was placed thereon. In the present case the
order made concerning the payment of wages
and the according of other
benefits was limited to a period of six months from the date of
dismissal of the employee respondents.
It could equally have been 60
months, so the argument ran. This argument loses sight in my view,
of the provisions of s 49(3)(b)
and (c) of the Act (which is one of
the sections which is made applicable mutatis mutandis to the
determination in terms of s 46(9)(c)
which would limit the
reinstatement or amounts paid in lieu of the benefits accruing from
reinstatement to a period of or amount
calculated over, a maximum of
six months.’
This,
in my view, is a correct interpretation of Section 46(9)(c).
[27] The
reasoning of the court a
quo
that through the application of s
43 an employer may pay more than six months remuneration to employees
in whose favour a s 43 (status
quo) order is made, is similarly
without merit. What must be understood is that a status quo order
was interim, whereas a reinstatement
order in terms of s 46(9) was
final. It is correct, as stated by the court
a quo
, that
status quo orders could be made retrospective for ninety days and be
extended thereafter for periods of thirty days at a time.
It is,
however, debatable that the effect of a status quo order could, in
certain cases, lead to an employer paying more than six
months
remuneration pending the final determination of the dispute in terms
of s 46(9).
[28] The
court
a
quo
does not mention, however, that the
extension of a status quo order was not automatic. The Industrial
Court’s power to extend
a status quo order was discretionary and
the court, of necessity, considered a number of factors such as
delays in the finalisation
of the dispute in terms of s 46(9),
efforts by the parties to resolve the dispute, alternative employment
secured by the employees
as well as efforts by the employees to
mitigate their losses through alternative employment. The court
a
quo
also fails to mention that, though it was possible to
obtain an extension of a status quo order, it was almost impossible
to achieve
extensions beyond six months. In granting extensions
the Industrial Court always kept in mind that the employees could
also be
granted retrospective reinstatement and compensation in terms
of section 46(9). Furthermore, in considering whether to grant
retrospective
reinstatement in terms of section 46(9), the Industrial
Court always took account of status quo relief granted to the
employees and
in appropriate cases no retrospective reinstatement
relief was granted where that had already been achieved through a
status quo
order.
[29] One
must conclude, therefore, that in terms of s 46(9)(c), read with s
49(3)(b), the Industrial Court was precluded from granting
a
reinstatement order retrospective beyond six months from the date of
the order. It follows that in this case the Industrial Court
lacked
such power and the court a
quo
was clearly wrong in confirming
the Industrial Court’s reinstatement order.
[30] Having
found that the Industrial Court did not have the power to order
reinstatement retrospectively for a period longer than
six months,
this Court must consider what appropriate relief to grant to the
respondents. The power to grant relief in unfair labour
practice
disputes is discretionary and must be fair to the employer and
employees. It is permissible to order reinstatement and
compensation
in the same case as long as it is deemed reasonable and fair to both
parties.
6
[31] In
considering the amount of compensation payable a number of factors
are taken into account, such as the reason for the dismissal,
the
conduct of the parties during the currency of the dispute, evidence
of any loss occasioned to the employees due to the dismissal,
as well
as evidence of the likely impact of a compensation order on the
employer. The approach to the grant of relief either by
way of
reinstatement and/or compensation was aptly spelt out by Nugent AJ in
Camdons Realty (Pty) Ltd and another v Hart
(1993) 14 ILJ 1008
(LAC) at 1018D–1019B, where he stated, with reference to s 46(9)
determinations:
‘
The
Section confers a discretion on the Industrial Court. It has a
discretion to determine whether compensation should be awarded
at
all, and if so, to determine what amount is reasonable
.
.…
It
must be borne in mind that discretion is not the equivalent of
caprice. The Industrial Court is bound to exercise a discretion,
and
to do so within the limits imposed on it by the Act.
If it chooses to award
compensation, what it awards must be compensation properly so called.
Compensation is not synonymous with
a gratuity. In its ordinary
meaning the term envisages an amount to make amends for a wrong which
has been inflicted.
…
The primary enquiry must
accordingly be to determine what that loss is, taking into account
that an unfair dismissal can take various
forms, and that the loss
must be causally related to the particular act which has been found
to
be
unfair. The loss resulting from an unfair dismissal may itself take
various forms. Quite obviously the employee may sustain direct
loss
of remuneration until he finds or may reasonably be expected to find
alternative employment, but in my view it need not necessarily
be
confined to this. The dismissal may result in other, less obvious
harm, as for example a blemish on the employees’ employment
record.
If the Industrial Court is satisfied that such a loss has occurred,
and it is able on the evidence before it to place a
value on that
loss, in my view it is entitled to take it into account in its
assessment. An assessment of the loss which has been
sustained does
not, however, conclude the enquiry.
The court
may determine the dispute only on terms which it considers
reasonable. This in itself contemplates that a claimant will
not
necessarily recover the full amount of his loss, but only such an
amount thereof as may be considered to be reasonable. While
there
may be circumstances in which it would be reasonable to compensate
the employee to the full extent of his loss, this will not
inevitably
be so. In considering what is reasonable, not only the interests of
the employee, but also the interest of the employer
must be taken
into account (see
Alert Employment Personnel v Leech
).’
[32] Evidence
of loss as stated in
Camdons
(
supra
) as well as
attempts to mitigate such loss has been regarded as crucial in a
number
of Labour Appeal Court cases).
7
In
Performing Arts Council v Paper Printing Wood and Allied
Workers
[1993] ZASCA 201
;
1994 (2) SA 204
AD Goldstone JA stated (at 219 A – C)
‘
In
every case the industrial court must make a reasonable determination.
In some cases fairness and justice may dictate that reinstatement
is
the proper relief. In others compensation or some other form of
relief may be more appropriate. Each case must depend on its
own
facts. A rule of thumb, even if applied on a
prima facie
basis, will tend to fetter the wide discretion of the industrial
court (or the Labour Appeal Court). That result is one to be
avoided.
In my opinion the correct approach is to give due
consideration to the relevant conduct of the parties and, in the
light thereof,
to decide upon the appropriate relief.’
[33] Counsel
for the appellant submitted that retrospectivity was inappropriate in
this case in view of the illegality of the strike
and lack of
functionality thereof. Counsel also submitted that compensation was
inappropriate for the same reason. This submission
loses sight of
the fact that it was not the appellant’s case that it did not
re-employ the respondents because they embarked on
an illegal strike.
Its case was that its selective re-employment was based on its
operational requirements. Furthermore this selective
re-employment
was not preceded by any consultation, hence the concession by
appellant’s counsel that it acted unfairly. In fact,
uncontested
evidence by the respondent’s witnesses was that the appellant
selected ‘good tomatoes’ for re-employment and chose
not to
re-employ ‘bad tomatoes’.
[34] However,
when the matter came before the court
a quo
there was, it
appears, no evidence that would have justified a finding that the
respondents were entitled to compensation over and
above
reinstatement. Equally, there was no evidence as to the effect that
reinstatement or compensation covering a period longer
than six
months would have had on the appellant’s business.
[35] Counsel
for the respondents submitted, both in the heads of argument and at
the hearing before this Court, that there had been
affidavits from
the respondents, other than those who gave oral evidence, before the
Industrial Court that dealt with the questions
of re-employment,
unemployment and mitigation of loss. Those affidavits had not formed
part of the record before the court
a quo.
They are also not
before this Court. In view of the fact that the respondents have not
cross-appealed to this Court against the decision
not to award
compensation, it is not necessary to deal with the reason for the
omission of the affidavits from the appeal record.
It is significant,
however, that the respondents had cross-appealed, conditionally, to
the court
a quo
in the event that the order for retrospective
reinstatement was not confirmed. No explanation was tendered to this
Court for the
respondents’ failure to persist with the conditional
cross-appeal in this Court.
[36] Because there was
insufficient evidence as to the financial position of the appellant,
and in particular the effect on it of
the retrospective reinstatement
order before the court of first instance, Nugent AJA, in his
dissenting judgment in the court below,
found that the four year and
seven month retrospective reinstatement order made by the Industrial
Court was unwarranted. He said
(para 56):
‘
It
is by no means clear that the respondents were not in employment for
the period from dismissal until the order was made. In my
view that
was the least that ought to have been ascertained before ordering
reinstatement with full retrospective effect. Even then,
however, it
does not follow that the respondents were entitled to be reimbursed
for the full amount of any loss they might have sustained
(
Camdon’s
Realty (Pty) Ltd v Hart
(1993) 14 ILJ 1008 (LAC). The interests
of the employer need also to be taken into account in determining
what is reasonable. The
evidence does not establish precisely what
effect the present order will have on the financial viability of the
appellant, but on
the face of it, an order which effectively requires
the appellant, which is a relatively small enterprise, to pay arrear
wages to
18 employees for a period of four years and seven months is
likely to be crippling. I do not think that such an order ought to
have
been made without first knowing that it would not have that
effect.’
The learned judge
concluded (para 60):
‘
In argument, the
appellant’s counsel submitted that an order which has the effect of
reimbursing the respondents for a period of
six months would have
been reasonable in the circumstances. Bearing in mind the paucity of
evidence relating to the impact of a compensatory
or retrospective
order upon the respondents and the appellant respectively, in my view
that cannot be said to be unreasonable.’
[37] The question has
been raised as to whether it would be possible to refer the matter to
an appropriate tribunal (in terms of the
transitional provisions of
the
Labour Relations Act No 66 of 1995
) for the purpose of eliciting
the evidence required to make a proper order in respect of
compensation. But in my view this is not
a case where such a referral
to evidence is possible or appropriate. First, quite apart from the
time that has already been spent
on this litigation (nine years),
there is no reason for such a referral. I consider that an order for
reinstatement, retrospective
for a period of six months, as suggested
in his dissenting judgment by Nugent AJA, is the proper order in the
circumstances. It should
be borne in mind that it was open to the
first court, and indeed the court below, to order simple
reinstatement without retrospective
effect. Retrospectivity for six
months – the maximum possible – ensures that the respondents will
receive even further redress
for the wrongful conduct of the
appellant.
[38] Secondly,
as I have already indicated, there is nothing before this Court that
signifies even
prima facie
that compensation over and above
six months’ retrospective reinstatement is warranted. It was the
responsibility of the respondents
to place whatever evidence there
was supporting such a conclusion before the court
a quo
in the
event of the award by the Industrial Court having been changed, and
before this Court once the appellant lodged its further
appeal. If
there was evidence available then the respondents, knowing that there
was a prospect of success on appeal, should have
cross-appealed, and
asked for leave to place before this Court whatever relevant evidence
there had been before the court of first
instance.
[39] Thirdly,
it is not open to this Court, having found that a party has not
adduced sufficient evidence to establish a right to
compensation, or
to establish the extent of that compensation, to order what is in
effect a retrial. The respondents were represented
throughout this
litigation. They have not ever suggested that they were deprived of
the opportunity to present their claims as best
they could. There is
no reason at all to give them the opportunity to start afresh, some
nine years after the dismissal by the appellant
which gave rise to
their claims. A reference to evidence by this Court is of course
possible (s 22 of the Supreme Court Act 59 of
1959), but only in
exceptional circumstances. One of the requirements for a referral to
evidence is that there should be a ‘reasonably
sufficient
explanation, based on allegations which may be true, why the evidence
which it is sought to lead was not led at the trial’
(
S v De
Jager
1965 (2) SA 612
(A) at 613C-D,
Loomcraft Fabrics CC v
Nedbank Ltd
[1995] ZASCA 127
;
1996 (1) SA 812
(A) at 824H-825B; see also
Staatspresident v Lefuo
[1990] ZASCA 6
;
1990 (2) SA 679
(A) at 692B).
[40]
In the fourth place, litigation must reach an end at some point. In
this matter there have been two hearings before the Industrial
Court,
one before the Labour Appeal Court, an application for leave to
appeal against the decision of the majority of the Labour
Appeal
Court, a hearing in this Court in respect of the right to appeal
further, and now this appeal. A referral to evidence cannot
possibly
serve the interests of any of the parties. If there were affidavits
as to the losses suffered by the respondents before
the Industrial
Court, it appears that they no longer exist. Counsel for the
respondents was not able to tell this Court what had
become of those
affidavits. Counsel for the appellant knew nothing of them. There is
no reference to them in the award made by the
Industrial Court. In
the circumstances, in the event of a referral to another tribunal,
evidence would have to be reconstructed.
That is inherently
undesirable. The balance of convenience dictates that the litigation
should end in this Court (see
Simaan v South African Pharmacy
Board
1982 (4) SA 62
(A) at 81A-B.)
[41] Of course the
respondents are entitled to redress for their wrongful dismissal and
the selective reinstatement. In my view, that
redress is to be found
in an order that the respondents be reinstated with retrospective
effect for a period of six months.
[42] Although
the appellant succeeds on appeal, when deciding the question of costs
a discretion must be exercised after taking into
account the
requirements of law and fairness. Section 17C(2) specifically enjoins
this Court to decide the question of costs ‘according
to the
requirements of law and fairness’. The guidelines as to fairness
are set out in
NUM v East Rand Gold and Uranium Ltd
[1991] ZASCA 168
;
1992 (1)
SA 700
(A) at 738F-739G. (See also
Performing Arts Council of the
Transvaal v Paper Printing Wood and Allied Workers Union
[1993] ZASCA 201
;
1994 (2)
SA 204
(A) at 221A-C). The proper approach is to take account of the
conduct of the parties during the dispute and in the conduct of the
litigation. The general approach developed by courts acting in
terms of this Act is that costs do not automatically follow the
result, unless there are special or exceptional circumstances
justifying a costs order.
Mala fides
, unreasonableness and
frivolousness have been found to be factors justifying the imposition
of a costs order. (See
SA Chemical workers Union v Sasol
Industries (Pty) Ltd and another
(2) (1989) 10 ILJ 1031 (IC) at
1060A-H;
Director-General of the Cape Provincial Administration V
National Education Health and Allied Workers Union and others
(1995)
16 ILJ 233 (IC) at 235 I-236D.) In the case before us it is clear
that both parties were
bona fide
in their respective stances.
There can also be no suggestion of unreasonableness or frivolousness
by either party. The considerations
that weigh particularly in favour
of the respondents in this case are the length of time it has taken
this matter to reach finality;
the fact that the awards made in their
favour are likely to be entirely, or at least largely, used up by a
costs award against them;
and that their conduct in embarking on the
strike cannot be said to have been reprehensible. The respondents
considered that they
had a legitimate grievance which was not
accommodated by the appellant. In the circumstances I consider that
no costs award should
be made against the respondents despite the
appellant’s success, as well as in the court
a quo.
[43] 1 The appeal is
upheld.
2 The order of the
Labour Appeal Court is set aside and replaced with the following:
‘
The
appeal succeeds.
The reinstatement order
of the Industrial Court is set aside and replaced with the following:
“
The
applicants are reinstated in the employment of the Respondent
retrospective for a period of six months from the date of this
order”.’
D
MLAMBO
Acting Judge of Appeal
Concur:
Mpati DP
Zulman JA
Farlam JA
Lewis JA
1
Chevron Engineering (Pty) Ltd v Nkambule and others
(2001) 22
ILJ 627 (LAC)
2
Chevron Engineering (Pty)Ltd v Nkambule 2003(5)
SA 206 (SCA)
3
This section provided: ‘The function of the industrial court shall
be –to conduct arbitrations referred to it in terms of Section
45,
46 or 49.
4
This section provided: ‘The functions of the industrial court
shall be – to make determinations in terms of section 46 (9),’
5
Amalgamated Beverage Industries (Pty)Ltd v Jonker
(1994) 14
ILJ 1232 (LAC) at 1255 G,
Nelspruit
Drycleaners (Pty)Ltd v SA Commercial Catering and Allied
Workers Union and Others
(1994) ILJ 15 283 (LAC) at 288 E-F.
6
National Union of Metalworkers of SA v Henred Freuhauf Trailers
1995(4) SA 456 (AD) at 462 G-H.
7
Foodpiper cc t/a Kentucky Fried Chicken v Shezi
(1993) ILJ
126 (LAC) at 136 A-E,
Ferodo (Pty) Ltd v De Ruiter
(1993) 14
ILJ (LAC) at 981C-G.