IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG
CASE NO: J123/99
In the matter between :
P S KRUGER First Applicant
J J PRETORIUS Second Applicant
and
R I MACGREGOR N.O. First Respondent
SALOMON SENEKAL BELEGGINGS (EDMS)
BPK Second Respondent
JUDGMENT
MARCUS AJ:
INTRODUCTION
1 The applicants apply in terms of section 145 of the Labour Relations Act
66 of 1995 (“the Act”) to review an arbitration award delivered on 21
September 1998 by the first respondent, to whom I shall refer as the
arbitrator. The facts giving rise to the dispute between the parties are not
presently germane. It suffices to state that the applicants alleged that they
had been unfairly dismissed by the second respondent. The arbitrator
found that in terms of an agreement between the parties, all claims arising
from the termination of the applicants’ employment with the second
respondent had been settled. The arbitrator further found that the
applicants were independent contractors and hence the dispute fell outside
the jurisdiction of the CCMA.
2 It is common cause that the application for review was instituted outside
the six week period stipulated in section 145 of the Act. The application
was some 10 weeks out of time and was not accompanied by any
application for condonation. I accordingly invited counsel to address me
on whether it was competent for the review to be entertained at all. The
applicants were represented by Adv J G Blignaut and the second
respondent by Advocate SJ Coetzee. I am grateful to both counsel for
their assistance and the sensible manner in which they approached the
issues.
3 I should point out that although the issue presently under consideration
initially arose at the stage of conciliation, the decision in question was
properly characterised as an arbitration award. Counsel were in
agreement that the first respondent was exercising his powers as an
arbitrator and the matter was argued on this basis.
THE RELEVANT PROVISIONS OF THE ACT
4 Section 145 of the Act provides:
“145 Review of arbitration awards
(1) Any party to a dispute who alleges a defect in
any arbitration proceedings under the auspices of the
Commission may apply to the Labour Court for an
order setting aside the arbitration award
(a) within six weeks of the date that the
award was served on the applicant, unless the
alleged defect involves corruption; or
(b) if the alleged defect involves corruption,
within six weeks of the date that the applicant
discovers the corruption.
(2) A defect referred to in subsection (1), means
(a) that the Commissioner
(i) committed misconduct in relation
to the duties of the Commissioner as an
arbitrator;
(ii) committed a gross irregularity in
the conduct of the arbitration
proceedings; or
(iii) exceeded the Commissioner’s
powers; or
(b) that an award has been improperly
obtained.
(3) The Labour Court may stay the enforcement of
the award pending its decision.
(4) If the award is set aside, the Labour Court may
(a) determine the dispute in the manner it
considers appropriate; or
(b) make any order it considers appropriate
about the procedures to be followed to determine
the dispute. ”
5 The issue which arises for my consideration is whether noncompliance
with the time limits prescribed by section 145 of the Act is fatal to any
application for review. The Act contains a general power of
condonation. Section 158(1)(f) provides that the Labour Court may
“subject to the provisions of this Act condone the late filing of any
document with, or the late referral of any dispute to, the Court ”.
The phrase “ subject to ” in such a context “ is to establish what is
dominant and what subordinate or subservient ” per Miller JA in S v
Marwane 1982 (3) SA 716 (A) at 747 H . At issue, therefore, is whether
section 145 ousts this general power of condonation.
THE CASE LAW
6 The issue before me has been the subject of competing decisions of the
Labour Court. In Queenstown Fuel Distributors CC v Labuschagne
N.O. & Others (1999) 3 BLLR 268 (LC) Landman J concluded that the
six week period referred to in section 145 of the Act had to be complied
with and that the Court enjoyed no power of condonation. This
conclusion was followed by Jajbhay AJ in National Union of
Mineworkers v Commission for Conciliation, Mediation and
Arbitration & Others (Labour Court, Case No. J1918/98, 7 May 1999,
unreported). A contrary conclusion was reached by Gon AJ in
Dimbaza Founderies Ltd v Commission for Conciliation, Mediation
and Arbitration and Others (Labour Court, Case No. P216/98, 14
May 1999, unreported) .
7 In Queenstown Fuel Distributors CC v Labuschagne N.O. (supra)
Landman J reasoned thus at paras 7 8:
“7 Litigation is invariably subject to time constraints.
For a discussion on the aims and objects of prescription
clauses, see Saner Prescription in South Africa at para 1.2.
Common law reviews are subject to a time limitation. They
must be brought within a reasonable time. See Wolgroeiers
Afslaers (Edms) Bpk v Munisipaliteit van Kaapstad 1978 (1) SA
13 (A) . A statutory review, such as the present application,
must be brought within the time permitted by the relevant Act.
Where it is brought out of time the question of condonation
arises. Whether condonation may be granted or not depends
upon the interpretation of the statute in question. Generally,
there appears to be no inherent power residing in a court to
condone a failure to comply with the time limits laid down by
statute. See the remarks of Didcott J in Mohlomi v Minister of
Defence 1996 (12) BCLR 1559 (CC) at 1568 D E .
8 The legislature was aware in enacting the Labour
Relations Act 66 of 1995 that circumstances might arise where
the time limits it sets might not be met by parties subject to the
Act and has, for the most part, provided for the appropriate
authority to condone a failure to comply with them usually on
good cause being shown. See for example ss 111(4) and 191(2)
of the Act.
9 The inevitable conclusion to be drawn from the
omission of the legislature to do so in relation to section 145(1)
must be that it intended the six week period to be complied
with, and that the Court should not have the power to condone
a failure to comply with the time periods specified in that
section.”
Landman J envisaged the possibility that the six week limitation period
might infringe section 35 of the Constitution of the Republic of South
Africa, 1996 (Act 108 of 1996) (“the Constitution”). Nevertheless, he
held that the Labour Court was not empowered to adjudicate on the
constitutionality of the laws it applies.
8 In National Union of Mineworkers v Commission for Conciliation,
Mediation and Arbitration (supra) Jajbhay AJ endorsed the approach of
Landman J. He elaborated on his reasons for reaching the same
conclusion at paras 22 23 of the judgment in the following terms:
“22 Unresolved disputes fester and spread infection of
discontent. They cry out for resolution. Disputes in the field
of labour relations are particularly sensitive. Work is an
essential ingredient in the lives of most South Africans.
Labour disputes deal with a wide variety of work related
problems. They pertain to wages and benefits, working
conditions, hours of work, job classification and seniority.
Many of these issues are emotional and volatile. If these
disputes are not resolved quickly and finally they can lead to
frustration, hostility and even violence. Both the members of
the workforce and management have every right to expect that
the differences will be, as they should be, settled expeditiously.
Further the provision of goods and services in our complex
society can be seriously disrupted if there were no time
constraints to expeditiously finalise a review application in
terms of section 145 of the LRA. Thus society as a whole as
well as the parties has an interest in their prompt resolution.
23 In my judgment the drafters have recognised the
importance of a speedy determination of labour disputes. By
the enactment of the LRA they have sought to provide a
mechanism for a fair, just and speedy conclusion of the issues.
In this particular instance, they have gone further and allowed
a maximum time period of six weeks to institute proceedings in
terms of section 145 of the LRA. ”
9 Gon AJ in Dimbaza Foundaries Ltd v Commission for Conciliation,
Mediation and Arbitration (supra) came to the opposite conclusion.
She concluded at para 55:
“... [i]t cannot have been the intention of the legislature, in the
circumstances, that the limited right to review CCMA
arbitration awards had to be confined to a six week period,
arbitration awards had to be confined to a six week period,
without the possibility of condonation for good cause shown, in
the event that the referral was late. It is my view, that by
making it a matter that, if not brought within a six week period
could not be condoned, this would not lead to effective dispute
resolution. Awards that are justifiably reviewable but cannot
be reviewed by virtue of being rigidly confined by a time limit,
would lead to the primary purpose of arbitration under the
Act, namely fairness, being thwarted with severe consequences
for the affected party and thereby bring the adjudicative
functions of the CCMA into disrepute. ”
In reaching this conclusion Gon AJ was strongly influenced by a
comparison between section 145 of the Act and the provisions of the
Arbitration Act 42 of 1965. She was of the view that “ it is most likely
that the drafters took their cue from the Arbitration Act, being the
longstanding piece of legislation governing private arbitration which
became a significant form of alternative dispute resolution after the
Wiehahn era commenced in labour relations ” (at para 48). The
grounds of review of arbitration awards under the Labour Relations Act
and the Arbitration Act are similar, although not identical. Under both
statutes reviews must be instituted within six weeks. The Arbitration
Act, however, vests a court with a general discretion to extend any time
period on good cause shown. Gon AJ concluded that the failure to
incorporate a similar provision in the Labour Relations Act “ was an
omission and not a deliberate act ” (at para 46).
10 Finally, I should mention the decision of the Labour Appeal Court in
Librapac CC v Fedcraw & Others (Labour Appeal Court, Case No.
JA49/98, 11 March 1999, unreported) . In that case, the Labour
Appeal Court, although alive to the issues, found it unnecessary to decide
whether the failure to institute review proceedings in terms of section 145
of the Act within the six week limit could be condoned.
11 Apart from the cases referred to above in which the interpretation of
section 145 has been considered, there are many judgments of the Labour
Court in which it has been assumed that noncompliance with the six week
period is not fatal. As a result of the competing decisions on this issue,
however, a situation of undesirable uncertainty has arisen. Much of the
work of the Labour Court is taken up with reviews of arbitration awards.
The issue of whether noncompliance with the time period stipulated is
fatal, faces Labour Court judges on a weekly basis. In my respectful
view a decision on this issue by the Labour Appeal Court is required as a
matter of urgency. This judgment will merely add to the growing
number of competing decisions. It is unavoidable, however, not simply to
resolve the dispute presently before me, but also because the approach
which I adopt differs from that reflected in the decided cases.
THE INTERPRETATION OF SECTION 145
12 In attempting to resolve this issue, it may be helpful to identify and
analyse the applicable interpretative injunctions. In my view these fall
into three categories: The common law, the Act and the Constitution.
The Common Law
13 Landman J and Gon AJ drew inferences of legislative intent but came to
different conclusions. Landman J was primarily influenced by the
absence of a specific power of condonation in section 145 and the
presence of such power in section 111(4) and 191(2). While a
consideration of other provisions of the Act is permissible, I am not
convinced that this comparison is helpful in the present case. Section
111(4) deals with appeals from decisions of the Registrar. Section
191(2) deals with the power of a Bargaining Council or the CCMA to
extend the period for the referral of disputes. The subject matter of these
sections is different from section 145 as is their language, structure and
purpose. Gon AJ inferred that by reason of the similarity between
section 145 of the Act and the relevant provisions of the Arbitration Act,
the absence in section 145 of an express power of condonation was an
omission and not deliberate. In my respectful view, this line of reasoning
is also compatible with the very opposite conclusion. In my view, the
enquiry ought to focus, in the first instance, on the wording of section 145
itself.
14 Regard must be had to the long established principles of statutory
interpretation. At common law, there is a vast body of case law which
deals with the distinction between statutory requirements that are
peremptory or directory and, if peremptory, the consequences of non
compliance. The starting point, in my view, is the decision in Sutter v
Scheepers 1932 AD 165 . Wessels JA laid down certain guidelines at
173 174:
“A long series of cases both here and in England have evolved
certain guiding principles. Without pretending to make an
exhaustive list I would suggest the following tests, not as
comprehensive but as useful guides. The word ‘shall’ when
used in a statute is rather to be construed as peremptory than
as directory unless there are other circumstances which
negative this construction Standard Bank Ltd v Van Rhyn
(1925 AD 266 ).
(1) If a provision is couched in a negative form it is to be
regarded as peremptory rather than as a directory mandate.
To say that no power of attorney shall be accepted by the
Deeds Office unless it complies with certain conditions rather
discloses an intention to make the conditions peremptory than
directory: though even such language is not conclusive.
(2) If a provision is couched in positive language and there
is no sanction added in case the requisites are not carried out,
then the presumption is in favour of an intention to make the
provision only directory. Thus in Cole v Greene (L.J.C.P., vol
13 at p 32) Tindall, CJ approving of a decision of Lord
Tenterden and dealing with this same question as to when
‘shall’ is to be interpreted as peremptory and when as
directory, says: ‘It may be observed here as it was by Lord
Tenterden ... in the case of The King v Justices of Leicester that
the words are in the affirmative only and that there are no
negative words; nor are the words so stringent as in those of
the Marriage Act 4 Geo. IV c.76, s 16 whereby it was enacted
the Marriage Act 4 Geo. IV c.76, s 16 whereby it was enacted
‘that the father, if living, of any party under twenty one years
of age (such party not being a widower or widow), or if the
father shall be dead, the guardian or guardians, etc, shall have
authority to give consent to the marriage of such parties; and
such consent is hereby required for the marriage of such
parties so under age, unless there shall be no person authorised
to give such consent:’ and yet, in The King v Birmingham it was
held that those words are directory only. Lord Tenterden, in
giving judgment, says ‘the language of this section is merely to
require consent; it does not proceed to make the marriage void
if solemnised without consent’. So here, the Act says, the
contract shall be signed by the commissioner, or three of them,
or by their clerk; it does not say it shall be void unless so
signed.’
(3) If, when we consider the scope and objects of a
provision, we find that its terms would, if strictly carried out,
lead to injustice and even fraud, and if there is no explicit
statement that the act is to be void if the conditions are not
complied with, or if no sanction is added, then the presumption
is rather in favour of the provision being directory.
(4) The history of the legislation will also afford a clue in
some cases. ”
15 In applying these guidelines to section 145 of the Act, two observations
are apposite. First, section 145 is silent on the effect of noncompliance
with the six week time period. No sanction is prescribed if the requisites
are not met. Second, there is manifestly scope for injustice if the six week
period were to be strictly enforced.
16 The more recent authorities focus not so much on whether a particular
provision is peremptory or directory, but on whether or not the failure to
comply strictly with a peremptory provision is fatal. This was the
approach adopted by the Appellate Division in Maharaj & Others v
Rampersad 1964 (4) SA 638 (A) . Van Winsen AJA, having concluded
that the provision under consideration was imperative, went on to consider
whether the absence of strict compliance therewith was fatal. He
formulated the appropriate test at 646 C in the following terms:
“The enquiry, I suggest, is not so much whether there has been
‘exact’, ‘adequate’ or ‘substantial’ compliance with this
injunction but rather whether there has been compliance
therewith. This enquiry postulates an application of the
injunction to the facts and a resultant comparison between
what the position is and what, according to the requirements of
the injunction, it ought to be. It is quite conceivable that a
Court might hold that, even though the position as it is is not
identical with what it ought to be, the injunction has
nevertheless been complied with. In deciding whether there
has been a compliance with the injunction the object sought to
be achieved by the injunction and the question of whether this
object has been achieved are of importance. ”
(See also: Shalala v Klerksdorp Town Council & Ano 1969 (1) SA
582 (T) and Mathope & Others v Soweto Council 1983 (4) SA 287
(W))
17 As Wiechers Administrative Law (1985) points out, the fundamental
question is whether noncompliance with a formal or procedural rule will
result in nullity. At 198 199 he states:
“In the question whether noncompliance with a statutory
provisions results in nullity it is usually asked whether the rule
in question is ‘peremptory’ or merely ‘directory’. If it is
peremptory, failure to comply with it results in nullity; but if
the rule is merely directory, noncompliance is not visited with
nullity. Although this construction is easy to understand, it is
not sound. All statutory rules are peremptory . If this were not
so, it would have to be accepted that some statutory provisions
are not really binding legal rules but merely nonobligatory
suggestions for desirable conduct. ....
In practice, however, it often happens that formal and
procedural rules are not complied with, either by the
administrative organ itself or by the subject who, by his action,
enters into an administrativelaw relationship or exercises his
rights and privileges within an existing relationship. The
question that now arises is not whether the formal or
procedural provision in question is peremptory or directory
because it must simply be accepted that the rule, being a rule of
positive law, is indeed peremptory but whether the
administrative organ that failed to comply with the rule was
authorised not to comply with it or to condone the subject’s
noncompliance with it. The question is simply whether the
organ has the power to dispense with the rule in question. In
order to answer the question of the possible existence of a
dispensing power, the rule itself must be examined. If the rule
is peremptory, that is, if absolute compliance is required, there
can be no dispensing power, but if the rule is directory, there
will be such a power. Now the objection may be raised that
one eventually returns to the same point after all whether the
rule is peremptory or directory. In truth, however, there are
two altogether different approaches involved: The view that
the enquiry is aimed purely at the question whether the rule is
directory or peremptory, is based on the false premise that
some statutory rules are binding while others are merely
indications. As explained above, such a view is in conflict
with the elementary principle that a statute contains generally
binding rules. The view that one is dealing with a power to
binding rules. The view that one is dealing with a power to
permit that the rules of a binding legal provision be dispensed
with, depending on the peremptory or directory nature of the
statutory provision, places the entire problem in the correct
perspective: First, that all statutory rules are binding or
peremptory, but that some rules leave room for a dispensing
power because of their directory nature; secondly, that the
power to dispense with a requirement is a legal power which
vests in the administrative organ by virtue of the statute itself.
The authority to permit dispensation with a formal or
procedural statutory rule in a particular case is an implied
discretionary power conferred on the administrative organ by
the statute.” (emphasis in the original)
18 There is another relevant common law principle of interpretation. The
curtailment of the powers of a Court of law will not be presumed in the
absence of an express provision or a necessary implication to the contrary.
See, De Wet v Deetlefs 1928 AD 286 at 290; Lenz Township Co. (Pty)
Ltd v Lorentz NO en Andere 1961 (2) SA 450 (A) at 455 A D;
Minister of Law & Order and Others v Hurley & Ano 1986 (3) SA 568
(A) at 584 A C; Administrator, Transvaal & Others v Traub &
Others
1989 (4) SA 731 (A) at 764 E F
The Act
19 Section 3 of the Act provides:
“3 Interpretation of this Act
Any person applying this Act must interpret its
provisions
(a) to give effect to its primary objects;
(b) in compliance with the Constitution; and
(c) in compliance with the public international
obligations of the Republic. ”
20 With regard to the requirements of section 3 of the Act, if there is any
conflict between the objects of the Act and the requirements of the
Constitution, the latter must prevail. This is because the Constitution is
the highest law. The supremacy clause in the Constitution is contained in
section 2 which provides:
“This Constitution is the supreme law of the Republic; law or
conduct inconsistent with it is invalid, and the duties imposed
by it must be performed. ”
21 Section 1 of the Act states that its purpose is, among other things, to
advance “ social justice ” and “ labour peace ”. Included in the primary
objects of the Act are “ the effective resolution of labour disputes ”.
22 In my view there is no conflict between the primary objects of the Act and
the Constitution. While it is correct, as Jajbhay AJ has pointed out, that
there is a need for the expeditious resolution of labour disputes, this does
not mean that fairness in decision making must be sacrificed. The
learned Judge rightly states that disputes in the field of labour relations are
particularly sensitive and that many of the issues are emotional and
volatile. These are factors which ought to militate in favour of judicial
supervision of arbitration awards for otherwise, there exists the possibility
that palpably wrong decisions would be allowed to stand unchallenged.
This holds the very danger of aggravating labour relations rather than
resolving issues.
The Constitution
23 Turning to the Constitution itself, there are at least three relevant
constitutional rights.
First, section 23(1) of the Constitution provides :
“Everyone has the right to fair labour practices ”.
Second, section 34 of the Constitution provides :
“Everyone has the right to have any dispute that can be resolved by
the application of law decided in a fair public hearing before a
court or, where appropriate, another independent and impartial
tribunal or forum. ”
Finally, Section 33 of the Constitution provides:
“33 (1) Everyone has the right to administrative action
that it lawful, reasonable and procedurally fair.
(2) Everyone whose rights have been adversely
affected by administrative action has the right to be
given written reasons.
(3) National legislation must be enacted to give effect
to these rights and must
(a) provide for the review of administrative
action by a Court or, where appropriate, an
independent and impartial tribunal;
(b) impose a duty on the State to give effect to
the rights in subsections (1) and (2); and
(c) promote an efficient administration. ”
By reason of section 241 read with Item 23 of Schedule 6, until the
legislation envisaged in section 33(3) has been enacted, the guarantee of
administrative justice is in the following terms:
“Every person has the right to :
(a) lawful administrative action where any of their rights or
interests is affected or threatened;
(b) procedurally fair administrative action where any of
their rights or legitimate expectations is affected or threatened;
(c) be furnished with reasons in writing for administrative
action which affects any of their rights or interests unless the
reasons for that action have been made public; and
(d) administrative action which is justifiable in relation to
the reasons given for it where any of their rights is affected or
threatened.”
24 The centrality of the Bill of Rights and its foundational values to the newly
created democracy is expressed in section 7 of the Constitution which
provides:
“Rights
7 (1) This Bill of Rights is a cornerstone of democracy
in South Africa. It enshrines the rights of all people in our
country and affirms the democratic values of human dignity,
equality and freedom.
(2) The State must respect, protect, promote and
fulfil the rights in the Bill of Rights.
(3) The rights in the Bill of Rights are subject to the
limitations contained or referred to in section 36, or
elsewhere in the Bill. ”
25 Section 7(2) is couched in imperative terms. It imposes a positive
obligation upon the State to “ respect, protect, promote and fulfil the
rights in the Bill of Rights. ”
26 The Constitution creates an ethos of accountability. The State and its
officials, where appropriate, must be called to answer for their actions and
must be subject to critical scrutiny ( S v Makwanyane 1995 (3) SA 391
(CC) at 431 para 88 and Carephone (Pty) Ltd v Marcus N.O. &
Others (1998) 19 ILJ 1425 (LAC) at 1434 H ).
27 The Constitutional Court has repeatedly emphasised that constitutional
rights must be generously and purposively interpreted. See: S v Zuma &
Others
1995 (2) SA 642 (CC) at 650 H 651 I; S v Makwanyane 1995 (6)
BCLR 665 (CC) at 676677, paras 910; S v Williams & Others 1995
(3) SA 632 (CC) 648649 paras 5154.
A “purposive” interpretation will not always correspond with a generous
interpretation. Sometimes, a purposive interpretation of rights will
require a restrictive rather than a generous interpretation of the rights (see
S v Makwanyane & Ano 1995 (3) SA 391 (CC) at para 325;
Soobramoney v Minister of Health, KwaZuluNatal 1998 (1) SA 765
(CC) at para 17 ).
28 The Constitution itself lays down certain principles of interpretation.
“Interpretation of Bill of Rights
39 (1) When interpreting the Bill of Rights, a
court, tribunal or forum
(a) must promote the values that
underlie an open and democratic society
based on human dignity, equality and
freedom;
(b) must consider international law;
and
(c) may consider foreign law.
(2) When interpreting any legislation, and
when developing the common law or customary
law, every court, tribunal or forum must
promote the spirit, purport and objects of the
Bill of Rights.
(3) The Bill of Rights does not deny the
existence of any rights or freedoms that are
recognised or conferred by common law,
customary law or legislation, to the extent that
they are consistent with the Bill. ”
The role of section 39(2) of the Constitution in the interpretation of
legislation is particularly important. In S v Letaoana 1997 (11) BCLR
1581 (W) I stated at 1591 A B:
“Section 39(2) of the present Constitution reflects an important
change in wording from its forerunner in section 35(3) of the
interim Constitution. The latter required a court, when
interpreting a statute to have “due regard” to the spirit,
purport and objects of the chapter on Fundamental Rights.
Section 39(2), by contrast, provides that a court “must
promote” the spirit, purport and objects of the Bill of Rights.
To “promote” in this context, means to further or advance. It
means more than taking into proper account.
29 Section 35(2) of the interim Constitution contained what may be described
as a presumption of constitutionality. It stated:
“No law which limits any of the rights entrenched in this
Chapter, shall be constitutionally invalid solely by reason of
the fact that the wording used prima facie exceeds the limits
imposed in this Chapter, provided such a law is reasonably
capable of a more restricted interpretation which does not
exceed such limits, in which event such law shall be construed
as having a meaning in accordance with the said more
restricted interpretation. ”
A similar provision was contained in section 232(3) of the interim
Constitution which dealt with laws which were prima facie inconsistent
with provisions of the Constitution other than the Chapter on Fundamental
Rights.
30 Under the final Constitution, these provisions have not been repeated. In
my view, however, this in no way detracts from the obligation of a Court
of law to interpret a statutory provision in a manner that preserves its
constitutional validity if this is linguistically possible. This is the
approach that has been followed by other courts (see Zimbabwe
Township Developers (Pvt) Ltd v Lou’s Shoes (Pvt) Ltd 1984 (2) SA
778 (ZSC) at 783 A D ). It is also consistent with the approach adopted
by the Labour Appeal Court in Carephone (Pty) Ltd v Marcus N.O. &
Others (supra) at 1433 G, para 28 .
31 In my view, an interpretation of section 145 of the Act which excludes any
power of condonation would result in a prima facie violation of the right
of access to Court embraced by section 34 of the Constitution and the right
to lawful administrative action embraced by section 33 of the Constitution
(read with section 241 and Item 23 of Schedule 6).
32 The common law presumption against ousting the jurisdiction of the Court
has been reinforced by secton 34 of the Constitution referred to above. In
Mohlomi v Minister of Defence 1997 (1) SA 124 (CC) , the
Constitutional Court, dealing with section 22 of the interim Constitution
(which guaranteed access to courts in terms similar to the present
guarantee in section 34), observed at para 16:
“The nature and importance of the right proclaimed by section
22 speak for themselves and call for no elaboration. ”
See also, Concorde Plastics (Pty) Ltd v NUMSA & Others 1997 (11)
BCLR 1624 (LAC) at 1644 D 1645 H .
33 I should add that the provisions under consideration in Mohlomi’s case
differ from the matter presently before this Court. At issue was section
113(1) of the Defence Act 44 of 1957 which provided that “ no civil action
shall be capable of being instituted against the State ... if a period of
six months ... has elapsed since the date on which the cause of action
arose, and notice in writing of any such civil action and of the cause
thereof shall be given to the defendant one month at least before the
commencement thereof. ” That section, unlike section 145 of the Act,
contained the sanction of invalidity.
34 The question of the constitutional validity of section 113(1) of the Defence
Act arose in Mohlomi’s case (supra) precisely because the section had
been held by the Appelate Division to be incapable of an interpretation
which conferred any power of condonation (leaving aside cases of
impossibility of compliance). It is precisely that kind of interpretation
which flows from the approach of Landman J and Jajbhay AJ. Obviously
if the language of section 145 of the Act, taken in the context of the Act as
a whole and in the light of the relevant principles of interpretation, permits
no other result, then all that would be left would be a possible challenge to
the constitutional validity of section 145 of the Act. In approaching the
proper interpretation of section 145 in the light of the relevant principles, it
is appropriate to confront the consequences of the approach of Landman J
and Jajbhay AJ squarely. In this regard, the observations of Didcott J in
Mohlomi’s case (supra) in relation to section 113(1) of the Defence Act
are apposite. After noting the disparity between the time periods
stipulated by the Prescription Act and those contained in the Defence Act,
the learned Judge observed at para 14:
“That disparity must be viewed against the background
depicted by the state of affairs prevailing in South Africa, a
land where poverty and illiteracy abound and differences of
culture and language are pronounced, where such conditions
isolate the people whom they handicap from the mainstream of
the law, where most persons who have been injured are either
unaware of or poorly informed about their legal rights and
what they should do in order to enforce those, and where
access to the professional advice and assistance that they need
so sorely is often difficult for financial or geographical reasons.
The severity of section 113(1) which then becomes conspicuous
has the effect, in my opinion, that many of the claimants whom
it hits are not afforded an adequate and fair opportunity to
seek judicial redress for wrongs allegedly done to them. They
are left with too short a time within which to give the requisite
notices in the first place and to sue in the second. Their rights
in terms of section 22 are thus, I believe, infringed. ”
The same consequences flow from an interpretation of section 145 which
precludes any power of condonation.
OVERVIEW
35 In my view, the weight of considerations points strongly against
construing noncompliance with the six week period as being fatal.
Firstly, the section contains no sanction for noncompliance. Seconly,
there is undoubtedly the possibility of great hardship where, for example,
the delay is insignificant and could not result in any material prejudice to
other affected parties. Thirdly, there is a well recognised and strong
presumption against ousting the jurisdiction of the superior courts. In this
case, the interpretation adopted by Landman J and Jajbhay AJ precludes
the Court from exercising its historical and traditional powers of review
which are designed to prevent the abuse of power. Fourthly, such an
interpretation entails a prima facie violation of constitutionally protected
rights.
36 It remains only to consider whether there are factors which point to a
different conclusion. The most cogent factor is that advanced by Jajbhay
AJ, namely, the need for expeditious resolution of labour disputes. This
in turn leads to certainty and finality in the employment relationship.
These are undoubtedly important factors. In my view, however, they
should not be exaggerated. There are important countervailing factors,
not the least of which is the need to ensure that labour disputes are fairly
resolved.
37 Jajbhay AJ also points out that disputes in the field of labour relations are
emotional and volatile. I have already suggested that the absence of
judicial review may serve to aggravate existing tensions rather than
resolve them. In this regard, I am of the view that the learned Judge does
not give sufficient weight to the role of courts in dispute resolution. This
issue is discussed in greater detail in Concorde Plastics (Pty) Ltd v
NUMSA & Others 1997 (11) BCLR 1624 (LAC) . In that case, I drew
attention to the importance of access to justice as a safeguard against self
help and violence. I pointed out that although the Constitution of
the United States does not expressly embody a right of
access to court, the "due process" clauses of the Fifth and
Fourteenth Amendments have been interpreted as
guaranteeing such a right. The purpose underlying the
guarantee was described by Justice Harlan in Boddie v
Connecticut 401 US 371; 28 L Ed 2d 113 at 117:
"At its core, the right to due process reflects a
fundamental value in our American
constitutional system. ... Perhaps no
characteristic of an organised and cohesive
society is more fundamental than its erection
and enforcement of a system of rules defining
the various rights and duties of its members,
enabling them to govern their affairs and
definitively settle their differences in an
orderly, predictable manner. Without such a
`legal system', social organisation and
cohesion are virtually impossible; with the
ability to seek regularised resolution of
conflicts individuals are capable of
interdependent action that enables them to
strive for achievements without the anxieties
that would beset them in a disorganised
society. Put more succinctly, it is this
injection of the rule of law that allows society
to reap the benefits of rejecting what political
theorists call the `state of nature'. ...
It is to courts, or other quasi-judicial official
bodies, that we ultimately look for the
implementation of a regularised, orderly
process of dispute settlement. Within this
framework, those who wrote our original
Constitution, in the Fifth Amendment and later
those who drafted the Fourteenth Amendment,
recognised the centrality of the concept of due
process in the operation of this system.
Without this guarantee that one may not be
deprived of his rights, neither liberty nor
property, without due process of law, the
State's monopoly over techniques for binding
conflict resolution could hardly be said to be
acceptable under our scheme of things. Only
by providing that the social enforcement
mechanism must function strictly within those
bounds can we hope to maintain an ordered
society that is also just. It is upon this
premise that this court has through years of
adjudication put flesh upon the due process
principle."
38 This does not mean, of course, that periods of prescription
do not play a vital role in any legal system. Here,
however, we are dealing with a very short period of time
within which to institute proceedings for review.
Moreover, we are doing so in a context in which those
affected, as pointed out by Didcott J in Mohlomi’s case
(supra), will frequently be poor people lacking in legal
knowledge and without access to the kinds of resources
necessary to protect their rights.
39 I accordingly conclude that noncompliance with the six week period
mentioned in section 145 of the Act is not fatal to the institution of review
proceedings. It remains to consider whether the delay in the present
matter ought to be condoned. There is no formal application for
condonation before me. However, I have been furnished with an
affidavit by the applicants’ attorney dealing with aspects of the delay in
the present proceedings. Mr. Blignaut, on behalf of the applicants,
accepts that this affidavit on its own does not constitute an application for
condonation. However, he has argued that in the event of it being held
that the failure to institute review proceedings within six weeks is capable
of being condoned, he would seek leave to move a formal application for
condonation in due course. Although there is no formal application for
condonation before me, I consider it appropriate to say something about
condonation, particularly in the light of certain submissions made by Mr
Coetzee on behalf of the second respondent.
CONDONATION FOR DELAY
40 In Dimbaza’s case (supra) Gon AJ applied the test for condonation laid
down in Melane v Santam Insurance Co. Ltd 1962 (4) SA 531 (A) . In
that case, the appellant was described as “ a bantu mine worker in the
Transvaal with rural ties in the Transkei ”. He sought leave to appeal
in forma pauperis ” against a judgment of Snyman J delivered in the
Witwatersrand Local Division of the Supreme Court. His petition for
leave to appeal was out of time by several weeks. Holmes JA observed
at 532 C F:
“In deciding whether sufficient cause has been shown, the basic
principle is that the Court has a discretion, to be exercised
judicially upon a consideration of all the facts, and in essence it
is a matter of fairness to both sides. Among the facts usually
relevant are the degree of lateness, the explanation therefore,
the prospects of success, and the importance of the case.
Ordinarily these facts are interrelated: they are not
individually decisive, for that would be a piecemeal approach
incompatible with a true discretion, save of course that if there
are no prospects of success there would be no point in granting
condonation. Any attempt to formulate a rule of thumb
would only serve to harden the arteries of what should be a
flexible discretion. What is needed is an objective conspectus
of all the facts. Thus a slight delay and a good explanation
may help to compensate for prospects of success which are not
strong. Or the importance of the issue and strong prospects
of success may tend to compensate for a long delay. And the
respondent’s interest in finality must not be overlooked. ”
In that case, the report of the decision does not reflect the discussion of the
prospects of success on appeal. Ultimately, these prospects were
considered to be “ so remote as to be unappreciable ” (at 533 A). This
was considered to be decisive, notwithstanding the appellant’s attempts to
raise funds for the appeal which prompted the observation that “ in this
country one has a human, and I trust judicial, measure of sympathy
for a humble Bantu struggling to reconcile an alien concept of urgency
with the unplentiful subject of cash ” (at 532 H).
41 While I am in agreement that the test in Melane v Santam Insurance Co.
Ltd (supra) is appropriate for applications for condonation for the late
noting of review proceedings in terms of section 145 of the Act, Mr
Coetzee placed great stress on the need for finality in labour disputes.
Where, for example, the question of reinstatement arises, it would be
manifestly unfair if such an order were made long after the events in
question. This is a problem which is by no means new to labour law.
In my view, however, it is important to keep the question of condonation
separate and distinct from the question of an appropriate remedy.
42 It may be of some assistance to consider the approach of our courts to the
question of delay in instituting proceedings for review at common law.
The procedure for review is governed by Rule 53 of the Rules of the High
Court. No time limits are prescribed for instituting review proceedings.
The courts have held that such proceedings must be instituted within a
reasonable time and the failure to do so may in itself be grounds for
dismissing the review.
43 At common law, the test to determine whether review proceedings are to
be dismissed on the grounds of delay is twofold:
(a) Were the proceedings brought within a reasonable time; and
(b) If not, should the Court nonetheless condone the failure to bring
the proceedings within a reasonable time.
(See, Wolgroeiers Afslaers (Edms) Bpk v Munisipaliteit van Kaapstad
1978 (1) SA 13 (A) at 41 H 42 D and Setsokosane Busdiens (Edms)
Bpk v Voorsitter, Nasionale Vervoerkommissie en 'n Ander 1986 (2)
SA 57 (A) at 86 A G ).
44 Prejudice is usually an important factor in the second stage of the test
(Wolgroeiers Afslaers (supra) at 42 A D ).
45 In Mkhwanazi v Minister of Agriculture & Forestry, KwaZulu 1990
(4) SA 763 (D) it was suggested, obiter, that a court could mero motu take
the point of an unreasonable delay in enrolling an application for review.
The applicant in Mkhwanazi’s case was employed by the KwaZulu
government as a driver. He allegedly absented himself from work
without permission and was therefore deemed to have been discharged
from his employment. He instituted proceedings for his reinstatement
and the payment to him of his full salary for the period of his
unemployment (at 765 C). There was a substantial delay in enrolling
the matter for hearing. The presiding Judge personally contacted the
attorneys for the parties and indicated that he required argument as to
whether the delays in bringing the matter to Court were not such as to
render the application unfit for hearing. Affidavits were filed in response
to this invitation (at 765 E F).
46 The Court considered that the delay in enrolling the application was fatal.
(However, in any event, it was held that the matter failed on its merits).
The Court reasoned thus
(a) The principle requiring the launching of review proceedings within
a reasonable time applies also to enrolling such matters. “ In cases such as
this, the applicant could notionally be better off than in the others
because here there is no real likelihood of evidence being lost. In all
other respects the reasoning underlying the principle that delays may
be fatal to an application must apply equally to both classes of case. ”
at 766 G H. The Court relied, in this regard on Wolgroeiers Afslaers
(Edms) Bpk v Munisipaliteit van Kaapstad 1978 (1) SA 13 (A) at 41 .
(b) The Court held that:
“The rule against undue delay is a procedural rule
(Wolgroeiers case at 41 G H) and can therefore be
enforced by the Court’s mero motu .” at 767 E
(c) The Court finally held that the nature of the relief sought “ is
however conclusive in the present case ” at 767 F.
(d) In dealing with the question of reinstatement, the Court held that
after a lapse of three years it was not even known whether the employment
was still available. at 767 G. Moreover, the Court held that “ the longer
the delay the longer the applicant seeks payment for in fact not
working” at 768 A.
47 In my respectful view, the learned Judge in Mkhwanazi’s case erred in
his observations concerning the power of a court to raise the question of
undue delay in enrolling a matter. The judgment proceeds from an
erroneous understanding of the Wolgroeiers case (supra). The
Wolgroeiers case concerned the time within which review proceedings
must be instituted. The question arose solely by reason of the fact that the
Rules of Court, while granting the right to institute review proceedings,
were silent on the time within which this must be done. This basic
principle was apparently overlooked by the court in Mkhwanazi’s case .
The statement referred to above that “ the rule against undue delay is a
procedural rule (Wolgroeiers case at 41 G H) and can therefore be
enforced by the Court’s mero motu ” misinterprets the central issue in
that case. As is made clear in the Wolgroeiers case at 41 H 42 A, the
Court’s powers of intervention, by reason of their inherent jurisdiction, are
limited to cases not governed by the Rules of Court or other statutory
provision:
“By gebrek aan statut êre of ander wettige voorskrifte rakende
die prosedure wat gevolg moet word, word die prosedure, wat
tydsbeperking insluit, deur die Howe self voorgeskryf . Wat
wel deur ons Howe voorgeskryf is, is dat verrigtinge binne
redelike tyd ingestel moet word en, soos ek reeds genoem het,
staan dit die Hof vry om, na gelang van omstandighede, en by
die uitoefening van sy diskresie, onredelike vertraging oor die
hoof te sien in geskikte gevalle. ” (emphasis added)
48 Apart from the aforegoing, it should be pointed out that it always lies
within the power of a respondent to set down on application where there
has been a failure by the applicant to enroll the matter and once the time
period for the filing of a replying affidavit has lapsed.
49 While I am of the view that Mkhwanazi’s case was wrongly decided on
this issue, the result in that case may nevertheless be sustainable, but for
different reasons. In considering delays in the institution of review
proceedings, the enquiry into prejudice will frequently necessitate an
investigation of the consequences which will flow from allowing a review
out of time. Where there are questions of reinstatement, then the impact
of the relief ultimately sought must be weighed together with the other
relevant factors. It may well be that the remedy of reinstatement may not
be appropriate in particular circumstances by reason of undue delay.
That, however, is a separate question from whether or not condonation for
the delay ought to be granted. Each case, however, would require
consideration on its own facts.
50 As indicated, there is presently before me no application for condonation.
Given the uncertainty surrounding the time period within which review
proceedings must be instituted, I am of the view that it would be
appropriate to afford the applicants the opportunity to file a substantive
application for condonation. Mr Coetzee argued that if I were to hold
that the failure to institute proceedings within the six week period is
condonable, the applicants should nevertheless pay the costs of the present
proceedings because it was within the applicants’ power to bring a proper
application for condonation. This is particularly so since the parties were
advised in advance of the hearing that I would require argument on the
issue. Had the applicants brought an application for condonation
timeously, the respondents would have been able to file answering
affidavits and the question of condonation could have been decided. I
agree with Mr Coetzee’s contentions in this regard.
51 I accordingly make the following order:
(a) The applicants are given leave to file a substantive application for
condonation;
(b) The matter is postponed to a date to be arranged by the Registrar;
(c) The applicants are to pay the respondents’ wasted costs.
G J MARCUS
Acting Judge of the Labour Court
Date of Hearing: 10 June 1999
Date of Judgment: 18 June 1999
For the applicants: Adv J G Blignaut
Instructed by Philip Du Toit Inc
For the respondents: Adv S J Coetzee
Instructed by : Geyser and Coetzee