IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG
CASE NUMBER: J1891/99
In the matter between:
NATIONAL POLICE SERVICES UNION Applicant
and
THE NATIONAL COMMISSIONER OF THE
NATIONAL POLICE SERVICES & OTHERS Respondents
J U D G M E N T
MARCUS AJ:
I. On 14 January 1999, the applicant to whom I shall
refer as “the Union” brought an urgent application in
this court in which it sought the following relief:
(a) Declaring a decision taken at a meeting of the
second respondent on 11 April 1997 setting a threshold
of representativeness for qualification for registration
as an employee organisation in terms of the South
African Police Service Labour Regulations published
under Government Gazette 1489 dated 27 September 1995 to
be invalid;
(b) Declaring the "deregistration" of the applicant in
terms of clause 6(7) of the South African Police Service
Labour Regulations R1489 of 27 September 1995 to be null
and void;
(c) Declaring the applicant to have complied with the
requirements of Regulation 1489 of 27 September 1995 for
registration as an employee organisation
(d) Interdicting and restraining the first respondent
from withdrawing the registration of the applicant as an
employee organisation.
II. The matter came before Landman J who granted
certain interim relief pending the finalization of the
matter. At that stage answering affidavits had not been
filed. The interim relief granted by Landman J was that
pending finalization, the Union could represent its
members at disciplinary inquiries.
III. On 3 February 1999 and after the filing of
answering and replying affidavits the matter was argued
before Van Niekerk AJ. Judgment was delivered on 10
February 1999. The application was dismissed. There
was no order as to costs.
IV. On 24 February 1999 Van Niekerk AJ granted leave to
appeal. A notice of appeal was duly filed with the
registrar on 17 March 1999. Subsequent to the filing of
the notice of appeal, the Union claims that it has
experienced "constant problems" with its recognition
within the South African Police Services. It claims to
have been refused permission to assist and represent
members at disciplinary hearings, to hold meetings, to
attend and take part in meetings of the second
respondent, to attend provincial negotiation meetings,
to use facilities of the employer and to represent
members in respect of grievance proceedings. The Union
complains that it has encountered particular problems in
KwaZuluNatal where, so it is alleged, the third
respondent has issued a circular informing members of
the Service that the Union's application to court was
unsuccessful, but omitting to mention that the matter is
on appeal. In consequence the Union alleges it is
losing support and that its members are confused and
dissatisfied.
(10)
(20)
(30)
V. The Union now seeks urgent relief in the following
terms:
"1. The decision by the first respondent to withdraw
the recognition of the applicant with effect from
20 December 1998 is suspended pending the outcome of the
appeal under case number J115/99 to the Labour Appeal
Court;
2. The first respondent is ordered to afford the
applicant its full organisational rights that it had up
until 20 December 1998 pending the outcome of the appeal
under case number J115/99 to the Labour Appeal Court;
3. The first respondent is ordered forthwith to
instruct all appropriate members under his command to
recognize all organisational rights of the applicant as
from the date of the order;
4. The first respondent is ordered to ensure that the
applicant is afforded its full organisational rights at
all levels in the South African Police Services;
5. The first respondent is ordered to ensure that all
circulars and/or memoranda and/or letters informing
members within the South African Police Services of the
"deregistration of NAPOSU" forthwith to be withdrawn and
all relevant parties to be informed of the correct
position with regard of the status of the applicant
within the South African Police Services pending the
applicant's appeal in this matter;
6. The second respondent is ordered to allow the
applicant its full organisational rights within the
South African Police Services."
VI. I would have preferred more time to deal with the
issues that have arisen but this is not possible due to
the exigencies of the situation. The attitude of the
Commissioner of Police is reflected in a letter dated 26
April 1999 written on his behalf which states:
"The normal procedure is that the status quo as at the
time of the court order against which the appeal is
lodged is retained. At the time of the judgment in this
application NAPOSU was deregistered by the National
Commissioner. There was, however, an interim order
granting NAPOSU the right to represent its members at
disciplinary hearings and they also still had their stop
order facilities as a result of an agreement between the
parties. In our opinion the status quo at the time of
the judgment, which will continue until the appeal is
heard, is the following:
1. NAPOSU is deregistered by the National
Commissioner;
2. NAPOSU retains the right to represent their members
at disciplinary hearings;
3. NAPOSU retains its stop order facility.
Apart from 2 and 3 NAPOSU has no further organisational
or other rights. The effect of leave to appeal can
never be to grant NAPOSU the relief which was refused in
the first instance."
VII. In the founding affidavit there is a bald
allegation to the effect that the Union has been refused
permission to assist and represent members at
disciplinary hearings. The answering affidavit, on
behalf of the respondents, says the following in this
regard:
I. "It is correct that the applicant, subsequent to
the application for leave to appeal, was refused trade
Union rights within the South African Police Service by
virtue of the fact that it had been properly
deregistered. The first respondent, however, allowed
the applicant to assist its members in disciplinary
proceedings and to collect membership fees by virtue of
stop orders against policemen's salaries. The aforesaid
measures were implemented merely as an indulgence
towards the applicant and not as a right."
VIII. Mr Ellis, who appeared on behalf of the
respondents, gave the assurance that the position with
regard to representation at disciplinary proceedings and
the collection of membership fees would continue. It is
thus not an issue in the present matter.
IX. The principal contention advanced by the Union is
that the letter written on behalf of the Commissioner
incorrectly reflects the legal position. The applicant
states that the correct legal position is as follows:
"At the time of the lodging of the application for
interim relief the applicant was attacking the validity
of the decision taken by the first respondent to
deregister it with effect from the 20th of December
1998. Furthermore the validity of a failure by the
first respondent to recognize the joint application by
the applicants and other registered trade Unions to
register it was being attacked as being invalid. These
decisions by the first respondent are the subject of the
appeal pending before the Labour Appeal Court. I have
been advised that these decisions by the first
respondent are as a result of the pending appeal
suspended pending the outcome of the appeal. It
therefore follows that the position which should apply
to the applicant is that which was in place as on the
20th of December 1998 on which date the applicant was
purported to have been deregistered by the first
respondent."
(10)
(20)
(30)
In the alternative the Union applies to suspend the decisions in question pending the
appeal to the Labour Appeal Court.
X. For purposes of the present application, I am not
called upon to consider the correctness of the judgment
of Van Niekerk AJ. That is a matter for the Labour
Appeal Court. The relief sought before Van Niekerk AJ
was declaratory and interdictory. The two remedies are
closely interrelated. An interdict is in the nature of
a declaration of rights. (See Van der Lith v Alberts &
Others, 1944 TPD 17 at 24.) Ordinarily, once a court
has granted a declaratory order, a public body would be
expected to give effect to its terms. In this way a
declarator usually serves the same purpose as an
interdict although where the declaratory order is
ignored, it can be enforced by a mandatary or
prohibitory interdict ( cf Estate Agents v Lek 1979 (3)
SA 104(A) at 1065H1066B.)
XI. Appeals to the Labour Appeal Court are governed by
section 166 of the Labour Relations Act 66 of 1995 ("the
Act"). That section is silent on the affect of noting
an appeal save that section 166(3) provides that "leave
to appeal may be granted subject to any conditions that
the court may determine".
XII. Rule 30 of the Rules of the Labour Court, which
concerns applications for leave to appeal, makes no
reference to the affect of noting an appeal.
XIII. The position in the Labour Court may be
contrasted with that which pertains in the High Court
where Rule 49(11) and (12) of the Uniform Rules
provides:
I. "49(11) Where an appeal has been noted or an
application for leave to appeal against or to rescind,
correct, review or vary an order of court has been made,
the operation and execution of the order in question
shall be suspended, pending the decision of such appeal
or application, unless the court which gave such order,
on the application of a party, otherwise directs.
49(12) If the order referred to in sub rule (11) is
carried into execution by order of the court the party
requesting such execution shall, unless the court
otherwise orders, before such execution enter into such
security as the parties may agree or registrar may
decide for the restitution of any sum obtained upon such
execution, the registrar's decision shall be final."
XIV. I do not suggest that the absence of similar
provisions in the Act and Rules of the Labour Court
would necessarily preclude the Labour Court from
achieving the same result as that contemplated in Rules
49(11) and (12) of the Uniform Rules. The power
conferred by section 166(3) of the Act to grant leave to
appeal subject to conditions as well as this court's
inherent powers conferred by section 151, might well be
capable of being utilized to similar effect.
XV. It seems to me, however, that the present is not a
case in which I should exercise such powers, assuming
that I possess them. The Union has been refused inter
alia an interdict by Van Niekerk AJ. It is now in
effect seeking from me an order granting the very
interdict which has been refused.
XVI. An analogous situation arose in Constantinides v
Jockey Club of South Africa , 1954 (3) SA 35(C). The
headnote captures the essence of the facts. It reads:
I. "After the Race Meeting Stewards had found that
applicant trainer had been a party to helping a jockey
to contravene Rule 102(F) and to make a bet and that he
was guilty of misconduct punishable under Rule 71(F) by
a decision of the Head Executive Stewards, his licence
was cancelled and he was subjected to certain other
penalties. The court dismissed an application by him
for an interim interdict restraining the Club acting in
any way upon this decision pending the decision of an
action to be instituted by him to have the said decision
set aside but granted leave to appeal. Applicant then
applied for an order suspending the execution of the
judgment until the Appeal Court had given its decision
in the contemplated appeal."
On these facts, Herbstein, J held at 53EH:
"What the applicant is seeking is not a stay of
execution for, as is correctly pointed out by Mr
Charles, the only portion of the order on which
execution could be levied is that which relates to
costs. What is being sought is an interdict restraining
the Jockey Club from acting upon its decision made on
the 1st December 1953 until an Appeal Court shall have
decided on the correctness or otherwise of the judgment
given by me in the main application. That Appeal Court
will have to decide whether I was correct in holding
that the applicant failed to show either a clear right
or a prima facie right which would justify the court in
granting the relief claimed in that main application,
namely, an interim interdict restraining the respondent
from acting upon its decision. For the time being and
until the higher court has decided that I was wrong, I
must act on the basis that my judgment is correct. I
must therefore decide whether this is a case in which I
should exercise my discretion to grant an interim
interdict and so prevent the respondent from acting upon
its decision. On the main application I held that the
applicant made out no case for an interdict. It seems
to me that I would be stultifying myself and frustrating
that judgment if I now held that the applicant is
entitled to an interim interdict pending the decision on
the appeal."
XVII. In the course of judgment, Herbstein J cited
with approval an unreported decision of Murray J in
Anschutz v Jockey Club of South Africa . In that case,
Anschutz was the holder of a trainer's licence which was
withdrawn by the Jockey Club. He obtained an interim
interdict restraining the Jockey Club from enforcing
withdrawal of his licence. The interim interdict was
discharged and Anschutz sought an extension of the
interdict pending appeal. Murray J refused the
application. He stated:
XVIII."After consideration of the argument addressed
to me yesterday I have come to the conclusion that I
should not exercise my discretion in favour of the
petitioner by granting this fresh interdict. The
petitioner's counsel placed reliance on the well known
authorities which lay down the principles on which the
court, the execution of whose judgment has automatically
been stayed by notice of appeal, should decide whether or
not to direct the execution of the judgment pending the
appeal. I do not think these authorities are in point:
The present position is entirely different. The present
case is not one in which, at the suit of the respondent,
the Jockey Club, I had granted an order specifically
authorising and declaring it, in view of the lawfulness of
its action in withdrawing the licence, to prevent the
petitioner from performing certain functions of a trainer,
which, until the time of the withdrawal of his licence, he
was entitled to discharge. If it is a question of
preserving the status quo ante that status consists of the
position before the petition in this case was launched.
At that time there was no order of court but merely a
notification by the respondent that it was not prepared to
allow the petitioner in future to enjoy the rights until
then flowing from the contract. I am now asked not to
preserve that, but to alter the position by compelling the
respondent club to specific performance until the decision
in the appeal of a contract which I found to be properly
terminated by it."
See also in this regard Laurenco & Others v Ferela (Pty)
Ltd, 1998 (3) SA 302(T) and Interkaap Ferreira Busdiens
v Chairman National Transport Commission , 1997 (4) SA
687(T).
XIX. In my view, the same approach governs the present
application. The Union's argument would lead to absurd
consequences. It would entail that where, for example,
a court of review declines to set aside a refusal to
grant a liquor licence, the noting of an appeal would
have the effect of awarding that licence ( cf S v
Pestana, (1985) (3) SA 275(T) at 282FI).
XX. There remains the alternative contention that I
should suspend the decisions of the first respondent
pending the appeal to the Labour Appeal Court. What the
Union is seeking, is analogous to leave to execute
pending the appeal. The guiding principles are to be
found in the judgment of Corbett, JA (as he then was) in
South Cape Corporation (Pty) Ltd v Engineering
Management Services (Pty) Ltd , 1977 (3) SA 534(A) at
545CG:
I. "The court to which application for leave to
execute is made has a wide general discretion to grant
or refuse leave and, if leave be granted, to determine
the conditions upon which the right to execute shall be
exercised (See Voet 49.7.3; Ruby's Cash Store (Pty) Ltd
v Estate Marks & Another Supra at p127). The discretion
is part and parcel of the inherent jurisdiction which
the court has to control its own judgments ( cf Fismer v
Thornton, 1929 AD 17 at p19). In exercising this
discretion the court should, in my view, determine what
is just and equitable in all the circumstances and in
doing so would normally have regard inter alia to the
following factors:
(1) The potentiality of irreparable harm or prejudice being sustained by the
appellant on appeal (respondent in the application) if leave to execute were to be
granted;
(2) The potentiality of irreparable harm or prejudice being sustained by the
respondent on appeal (applicant in the application) if leave to execute were to be
refused;
(3) The prospects of success on appeal including more particularly the question
as to whether the appeal is frivolous or has been noted not with the bona fide
intention of seeking to reverse the judgment but for some indirect purpose e.g. to
gain time or harass the other party;
(4) Where there is the potentiality of irreparable harm or prejudice to both
applicant and respondent the balance of hardship or convenience, as the case may
be."
XXI. In the present case there is nothing in the
founding affidavit concerning the prospects of success
on appeal. The onus is on the Union to satisfy the
court that there are good grounds for the exercise of a
discretion in its favour. It may be inferred that the
granting of leave to appeal by Van Niekerk AJ is some
indication of prospects of success but I have not been
asked to reconsider this issue. Indeed, the papers in
the original application are not even before me. It
seems to me, further, that the third factor mentioned by
Corbett JA postulates something different from the test
to be applied in an application for leave to appeal.
The "application" to suspend the decisions of the first
respondent pending the appeal comprises one paragraph in
the founding affidavit. It simply states:
"Should this honourable court be of the view that the pending appeal does not
have the effect of suspending the decisions of the first respondent that forms the
subject matter of the appeal, the applicant applies to this honourable court to
suspend the said decision pending the appeal to the Labour Appeal Court."
XXII. On the papers there is some evidence of
prejudice to the Union. What is required, however, is a
substantive application so as to enable the respondents
to deal with the matter properly.
XXIII. Contrary to the submission advanced by Mr
Dorfling, on behalf of the applicant, the factors set
out in South Cape Corporation (Pty) Ltd v Engineering
Management Services (Pty) Ltd (supra) are not
essentially legal in nature. Questions of hardship and
inconvenience are questions of fact. In my view the
manner in which the "application" to suspend the
decisions of the first respondent pending the appeal has
been made, is simply not sufficient to discharge the
onus resting on the applicant.
The application is accordingly dismissed with costs.
__________________
G J MARCUS
ACTING JUDGE OF THE LABOUR COURT
DATE OF HEARING: 4 JUNE 1999
DATE OF JUDGMENT: 4 JUNE 1999
For the Applicant: Adv D Dorfling instructed by
Nompumelelo Radebe and Ass.
For the Respondent: Adv P Ellis instructed by The
State Attorney