IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG CASE NO.:J801/98
In the matter between:
NATIONAL UNION OF MINEWORKERS Applicant
and
ELANDSFONTEIN COLLIERY (PTY) LTD Respondent
JUDGMENT
[1] On 12 May 1998 the applicants filed an application in terms of section
191(5)(b)(ii) of the Labour Relations Act 66 of 1995 (“the Act”) under case
no. J801/98. The applicant alleged that the dismissals of its members by
the respondent were unfair, and sought their reinstatement. When the
matter was heard on 30 November 1998, the respondent raised the point
in limine that the matter was res judicata . That plea was upheld by this
Court, and the main application was dismissed with costs. The applicant
now seeks leave to appeal against that judgment, which is now reported
sub nom NUM v Elandsfontein Collieries [1999] 5 BLLR 511 (LC).
[2] It is not necessary for present purposes to repeat the reasoning in the
judgment that is the subject matter of this application. Suffice it to say that
the Court found that the matter before it was res judicata because the
principal issue raised by the applicant – namely, whether the respondent
had complied with the provisions of section 189 of the Act had been
decided upon and disposed of by the Court in an earlier application under
section 158(1).
[3] The earlier judgment upon which the Court relied for its finding was
handed down by Zondo J on 24 February 1998 in case no. J321/98. The
applicant now contends that this judgment could not provide the basis for
the application of the principle of res judicata in case no. J801/98 because
the judgment was a null and void. If I have understood the applicant’s
submissions correctly, that is the only argument it intends to advance
before the Labour Appeal Court if leave to appeal is granted.
[4] For purposes of this application, I accept that if the judgment in case no.
J321/98 is null and void, the judgment in J801/98 cannot be sustained.
The Court’s duty in this application is accordingly to assess whether there
is a reasonable possibility that another court could find that the Court
lacked jurisdiction or exceeded its powers when it heard the matter under
case no. J321/98.
[5] I understand the facts upon which the applicant relies to be common
cause. They are as follows. The respondent gave notice of its intention to
commence a retrenchment exercise in September 1997. On 16 February
1998 the applicant filed an urgent application for an interim order in the
following terms:
“2.1 Interdicting and restraining the respondent from retrenching
union members;
2.2 Directing the respondent to enter into consultations with the applicant as
required by section 189 of the Labour Relations Act No. 66 of 1995;
2.3 Directing the respondent to reinstate those employees,
members of the applicant, who have already been
retrenched.”
[6] As it transpired, when the matter was heard on 18 February 1998 the
respondent had in fact completed the retrenchment and all the employees
on whose behalf the application had been brought had already been
dismissed.
[7] The applicant now contends that the change in the factual circumstances
between the time the application was filed (when only some of its affected
members had been retrenched) and the time when the application was
heard (when all its affected members had been retrenched) deprived the
Court of jurisdiction to deal with the application. Hence, so it is argued, the
ensuing judgment was null and void.
[8] The first question to be considered is whether the applicant can be
permitted to seek relief by way of appeal against the judgment in case no.
J801/98 when its attack is in reality against the judgment in case no.
J321/98. The fact of the matter is that judgment has been handed down in
the latter case, and in the normal course a judgment stands until such time
as it is rescinded or set aside on appeal: see Dartprops (Pty) Ltd v CCMA
& others [1999] 2 BLLR 137 (LC) at 139FG.
[9] I must record that simultaneously with the present application the
applicant filed an application for rescission of the judgment in case no. J321/98
or, alternatively, leave to appeal against it. That application was due to be heard
by Zondo J on the day of this application, together with the necessary application
for condonation. However, it was withdrawn with the apparent consent of the
respondent, and the applicant proceeded only
with the present application. I accept, however, that if the applicant
succeeds in satisfying this Court that another court might find that the
judgment of Zondo J is null and void, this will provide sufficient basis to
grant leave to appeal against the judgment in J801/98.
[10] The applicant has not approached this Court in an attempt to to rescind
the judgment in case no. J321/98. There is thus no need for me to
consider whether the judgment of Zondo J was issued as a result of a
“mistake common to the parties”, as is required by section 165(c).
However, I must point out that I cannot accept the applicant’s claim that
neither it, the respondent nor the Court was aware that all of the
applicant’s affected members had been dismissed when the urgent
application came before Court on 18 February 1998. The Court’s
judgment in case no. J321/98 leaves no doubt about this. Zondo J records
at paragraph 6 that the applicant’s counsel informed him that the
respondent “had already implemented the retrenchment”, and that the
applicant was accordingly not pursuing prayer 2.1. The respondent could
hardly have been unaware that the retrenchments had already been
effected, as it had informed the applicant on 13 February that the affected
members would be dismissed on 14 February. Any further doubt about the
Court’s understanding of the factual position is dispelled when Zondo J
observes (at paragraph 9 of the judgment) that “the applicant comes to
this Court to challenge the implementation of the retrenchment and the
dismissal of its members”. It is therefore apparent that the Court delivered
its judgment well knowing that all the employees on whose behalf the
application was brought had been dismissed when the application was
heard. In my view, an application for rescission would have failed on that
ground alone. However, this would not have precluded an appeal against
the judgment, assuming that the Court would have been prepared to grant
condonation for the late filing of the application for leave to appeal. Such
an appeal would, however, have been a wasteful exercise, as in order to
obtain relief the applicant would still have had to bring an application for
leave to appeal, and if permitted to do so, appeal against the judgment in
leave to appeal, and if permitted to do so, appeal against the judgment in
case no. 801/98. I am therefore satisfied that the applicant has adopted
the correct procedure by bringing the application for leave to appeal in
respect of the latter judgment, and that it wisely abandoned its
applications for rescission of the judgments in case no. J321/98 and of the
judgment in this case.
[11] The applicant’s case in this application stands or falls on the proposition
that once employees have been dismissed, this Court lacks jurisdiction to
entertain disputes concerning their dismissals under section 158(1) of the
Act. That issue has been discussed in a number of reported judgments of
this Court.
[12] In Fordham v O K Bazaars (1929) Ltd (1998) 19 ILJ 1156 (LC), the
applicant sought variation of an order compelling the respondent to
consult. After having been dismissed, the applicant sought inclusion of an
order that the respondent reinstate the applicant pending the conclusion of
consultation. Revelas J observed as follows at paragraphs 7 and 8 of her
judgment:
“I am firmly of the view that this Court cannot in any event make such an
order because the applicant has an alternative remedy, namely, the process
of conciliation at the CCMA. The nature of relief sought by the applicant
is a status quo order. In terms of s 43 of the previous Labour
Relations Act 28 of 1956 (the 1956 Act), parties could approach the
Industrial Court on affidavit to obtain status quo orders pending
adjudication of disputes in respect of their dismissals. The absence
of this type of procedure under the 1995 Act is, in my view, not due
to an oversight on the part of the drafters of the Act. I believe the
exclusion to be deliberate. Parties to a labour dispute are obliged to
follow a conciliation process and if they cannot resolve their
differences in that process, their dispute is adjudicated or arbitrated
depending on its nature…. I am convinced that I cannot introduce a
new procedure whereby status quo orders can be granted in urgent
applications on affidavit under the guise of an application to compel
an employer to consult.”
[13] In SACCAWU v Shoprite Checkers (Pty) Ltd [1997] 10 BLLR 1360 (LC)
the applicants sought orders declaring their dismissals to be unfair, and
reinstating them retrospectively. Landman J was prepared to assume, for
the purposes of his judgment, that the Court “does in fact have the
necessary jurisdiction to grant interim relief pending the finalisation of a
matter before another forum such as the CCMA” (see at 2362CD). Since
the learned judge dismissed the application, it cannot be assumed that he
accepted the court in fact had jurisdiction.
[14] In University of the Western Cape Academic Staff Union & others v
University of the Western Cape (1999) 20 ILJ 1300 (LC) the applicants
also sought reinstatement pending the resolution of the dispute
concerning their retrenchment. In his judgment (which came to hand only
after this matter was argued) Mlambo J was prepared to state as a
general proposition that the Labour Court has the power in terms of
section 158(1) to grant relief akin to the old status quo orders. He said (at
paragraphs 11 & 12 of the judgment):
“The fact that the Labour Court is established as a court of law
equal in status to a provincial division of the High Court must mean
that the power given to the Labour Court to grant urgent interim
relief is not dissimilar to the power of the High Court to grant urgent
interim relief. The absence in the Act of a provision similar to s 43
does not, in my view, mean that the Labour Court lacks the power
to grant urgent interim relief in dissimilar cases.
In my view the Labour Court would be failing in its stated task if it were to deny
such relief even in circumstances where the unfairness sought to be prevented is
very glaring. Experience has taught us that even in this day and age one still
encounters high handed and unilateral conduct that ignored relevant provisions
and any semblance of fairness. In certain circumstances the detrimental
consequences of such conduct cannot be addressed by an award after
arbitration or adjudication has taken place.”
[15] In SACWU & others v Sentrachem [1999] 6 BLLR 615 (LC), which also
came to hand after this matter was argued, Revelas J considered the
apparent conflict between the views she expressed in the OK Bazaars
case supra and those expressed by Mlambo J in University of the Westen
Cape. She concluded at 618EF of the Sentrachem judgment:
“I do not believe that there is any difference between the views held by
Mlambo J and myself. The Fordham [v OK Bazaars] judgment does
not have the result that interim relief can never be granted by the
Labour Court, but emphasises the reluctance of the Labour Court to
grant status quo relief in dismissal matters, in other words,
reinstatement of dismissed employees, where there are alternative
remedies available.”
[16] The learned judge also referred to another Labour Court judgment Paledi
& another v Botswana Broadcasting Corporation case no. J323324/98
reported in 3,4 Labour Court Digest at 184, in which temporary relief was
granted to dismissed employees.
[17] The weight of authority therefore favours the view that this Court can in
appropriate circumstances come to the assistance of dismissed
employees who seek interim reinstatement via section 158(1) pending the
conciliation, adjudication or arbitration of the dispute in terms of the
procedure laid down in section 191. In OK Bazaars , Revelas J regarded
as prime among the considerations militating against the use of section
158(1) by dismissed employees to be that section 191 provides for
mandatory conciliation prior to the matter being adjudicated or arbitrated,
whereas section 158(1) enables the parties to approach the Court without
having gone through that process. Mlambo J, on the other hand, regarded
as the prime consideration favouring the exercise of the Court’s powers
under section 158(1) to assist dismissed employees in appropriate cases
to be the need to prevent them from incurring irreparable harm or loss
through flagrant violations of the Act by employers.
[18] The considerations raised in both cases are clearly important. However,
the problem at issue cannot be determined by choosing which is the more
important. The considerations mentioned by Revelas and Mlambo JJ are
relevant only in so far as they cast light on the intention of the legislature
as reflected by the words of the statutory provision under consideration, as
read in the light of its context, background and purpose. The task of the
Court is to decide whether, properly interpreted, section 158(1) expressly
or by necessary implication confers on this Court the power to make the
various orders listed therein in circumstances where the relief sought is on
behalf of employees who have been dismissed.
[19] In embarking on this exercise, one must commence with the words of the
provision itself, interpreted in accordance with their ordinary meaning. The
material parts of section 185(1) read:
1. Powers of the Labour Court
2. The Labour Court may –
(a) make any appropriate order, including –
(i) the grant of urgent interim relief;
(ii) an interdict;
(iii) an order directing the performance of any particular act which order, when
implemented, will remedy a wrong and give effect to the primary objects of
this Act;
…
(b) order compliance with the provisions of this
Act;
…
(c) deal with all matters necessary or incidental to
performing its functions in terms of this Act or
any other law.
[20] At first glance, the above provisions place no limitation on the Court’s
power to make orders of the kinds mentioned if the Court deems them to
be “appropriate”. This conclusion is fortified by the wording of subsection
(a)(iii), which contemplates that the orders envisaged therein may direct
the performance of any act that will “remedy a wrong and give effect to the
primary objects of the Act”. Unfair dismissal is one of the wrongs that can
be perpetrated against employees in terms of the Act. An order of
temporary reinstatement is clearly a possible remedy for such a wrong.
Circumstances can easily be imagined in which such a remedy will give
effect to the primary objects of the Act, which include the protection of the
subject’s constitutional right not to be unfairly dismissed and the effective
resolution of labour disputes (see section 1). Paledi v Botswana
Broadcasting Corporation supra provides one example – the loss of
accommodation of workers who have been unfairly dismissed. That such
relief can be afforded without prior recourse to conciliation does not in
itself lead to the conclusion that the legislature intended to exclude
dismissed employees from possible recipients of the relief envisaged in
section 158(1).
[21] The only basis for concluding that the legislature intended the wording of
subsection (a)(iii) to be read restrictively to exclude reinstatement is to
find some compelling indication elsewhere in the Act to warrant that
inference. In OK Bazaars , Revelas J considered as an indication that the
legislature did not intend to include reinstatement among the remedies
contemplated by subsection (a)(iii) the fact that no equivalent of section
43 of the 1956 LRA was included in the current Act. It is so that prior
legislation in pari materia can serve as a legitimate guide to the
interpretation of a statutory provision. But it does not follow that because
the legislature omitted expressly to provide for “ status quo ” relief in the
Act, it intended to strip the Labour Court of its power to grant such relief in
appropriate circumstances. On the contrary, the legislature could well
have considered it unnecessary to expressly provide for such relief
because the wording of section 158(1) is wide enough to include it.
Furthermore, the concern expressed by Revelas J about the possibility of
parties “leap frogging” conciliation should be allayed by the fact that the
Court retains its discretion to dismiss applications that are brought with
that objective in mind (which the Court has frequently done in the past,
and did so in the University of the Western Cape and Sentrachem cases
supra). The Court is in fact expressly granted authority to refuse to
entertain matters that have not been conciliated by section 157(4)(a). The
discretionary nature of that provisions has led at least one commentator to
discretionary nature of that provisions has led at least one commentator to
conclude that the Court may assume jurisdiction over a dispute in cases
where the dispute has not been conciliated (see Du Toit et al The Labour
Relations Act of 1995 (Butterworths 1996) p 333). And the Court’s
reluctance to accept that mere loss of income is a sufficient ground for the
grant or urgent relief presents a significant obstacle to employees who
wish to use section 158(1) merely to circumvent section 191.
[22] The only possible indication that the legislature intended 158(1) to be
restrictively interpreted in the manner urged by the applicant is the fact
that section 191 creates a special procedure for disputes concerning
dismissals: expressio unius est exclusio alterius . It is not necessary for
present purposes to repeat the provisions of section 191. Suffice it to say
that it requires conciliation as a mandatory precondition to the adjudication
or arbitration of such disputes. But again, it does not follow that the
provision of a special remedy to resolve disputes concerning alleged
unfair dismissals by trial or arbitration deprives or limits the power of this
Court to grant interim relief pending the resolution of such disputes in the
ordinary manner. On the contrary, one of the purposes of urgent relief is to
protect the rights of parties pending litigation. The existence of section 191
therefore does not necessarily imply that the powers conferred by section
158(1) cannot be exercised in such disputes merely because the dismissal
has been effected.
[23] I am therefore not persuaded on any principle of interpretation that this
Court should disregard the literal meaning of section 158(1)(a)(iii).
[24] The exercise of the powers conferred on this Court by section 158 are,
however, subject to the proviso that the Court has jurisdiction over the
parties and the subjectmatter of the dispute. It will have been noted that
both Revelas and Mlambo JJ approached the matter by considering the
extent of the Court’s powers. The applicant’s approach in this matter is
that dismissal of an employee deprives the Court of j urisdiction to
entertain any claim concerning such dismissal under section 158(1). The
jurisdiction of this Court is dealt with in section 157. That section, in
summary, states that the Court has exclusive jurisdiction “over all matters
that elsewhere in terms of this Act or any other law are to be determined
by the Labour Court” (subsection (1)), save that it has concurrent
jurisdiction with the High Court in respect of certain matters (subsection
(2)). The only express limitation on the Court’s jurisdiction is contained in
subsection (3), which deprives the Court of jurisdiction to adjudicate
unresolved disputes that are reserved for arbitration, except when it acts
as arbitrator with the consent of the parties.
[25] Subsection (1) of section 157 does not assist in the interpretation of
section 158(1). However, section 151(2) confers on this Court “authority,
inherent powers and standing, in relation to matters under its jurisdiction,
equal to that which a court of a provincial division of the High Court has in
relation to the matter under its jurisdiction”. Were it not for the provisions
of section 157(2) of the Act, the High Court would retain its jurisdiction
over disputes between employers and employees. In terms of its inherent
powers, the High Court could grant interim relief to dismissed employees.
It must follow, in my view, that the Labour Court has jurisdiction to do so
where it deems such relief to be appropriate.
[26] The above conclusion is fortified by the presumption that the legislature
wishes to retain the jurisdiction of the Courts except where it provides to
the contrary: see Devenish Interpretation of Statutes (Juta 1992) pp
195200 and the authorities there cited.
[27] In my view, there is no prospect of another Court reaching a different
conclusion on this issue. It follows, too, that since the applicants rest their
case solely on the proposition that the Court lacked jurisdiction to give
judgment in case no. J321/98, leave to appeal on that ground must be
refused.
[28] Even if the above conclusion is incorrect, there is another consideration
that is in my opinion fatal to the applicant’s prospects on appeal. This is
that its application in case no. J321/98 was not in fact confined to the
prayer for reinstatement. It will be recalled that the paragraph 2.2 of the
notice of motion requested the Court to grant an order directing the
respondent to “enter into consultations with the applicant as required by
section 189”. I did not understand the applicants to argue that such relief
is beyond the powers of this Court. In any event, it is clearly is within the
Court’s power to grant such an order: see, for example, NEWU & others v
Mintroad Saw Mills (Pty) Ltd [1998] 2 BLLR 159 (LC) at 169HI; FAWU v
Premier Foods Industries (Epic Foods Division) [1997] 6 BLLR 753 (LC);
NUMSA v Comark Holdings (Pty) Ltd [1997] 5 BLLR 589 (LC); FAWU v
Simba (Pty) Ltd [1997] 4 BLLR 589 (LC). The applicant’s contention that
the Court lost jurisdiction from the moment the employees were dismissed
does not touch upon the Court’s competence to consider prayer 2.2.
[29] The main focus of the judgment in case no. J321/98 was whether the
applicant had conformed with the requirements of section 189. In the view
of Zondo J, the applicant’s main complaint was that the decision to
retrench had been sprung upon them. The learned judge found that this
claim was not supported by the evidence before him. He found further that
the applicant’s reply to the respondent’s answering affidavit indicated that
management had issued the notice of retrenchment in September 1997,
and that the mediator’s report of a meeting on 3 February 1998 indicated
that “the basis on which the parties left the mediation was that it had been
agreed that the only matters which were outstanding for the parties to
consult about were logistics and, as it is said there, final points, of the
retrenchment package and that, therefore, it must be so that the union had
accepted that there was a need to retrench and that there were no
alternatives to the retrenchment which were viable”. Zondo J found that by
the end of the mediation exercise, the parties had agreed that the only
remaining issue for consultation was severance pay. What was fatal to
their case, according to the learned Judge, was that the shop stewards
had refused to continue consulting over that issue and had belatedly
sought to deny that there was a need to retrench, which issue, said the
Court, “quite clearly had been settled if one has regard to what happened
at the mediation”. It was in the light of these findings that the Court
concluded that the respondent had “discharged its obligations in terms of
section 189 of the Act in this case”. And it was in the light of that finding
that the Court found in case no. J801/98 that the principles of res judicata
applied to the application under section 191(5)(a)(iii).
[30] There is no indication in his judgment that Zondo J was concerned with
one or other of the remaining two prayers that the applicant was pursuing,
or with both. His focus was simply on whether the facts and allegations on
the papers supported the applicant’s contention that the respondent had
failed to consult. That inquiry was as relevant to prayer 2.2 as it was to
prayer 2.3. Had Zondo J found that the respondent had not complied with
the Act, the Court might have granted prayer 2.2 or 2.3, or both. Had the
respondent urged upon the Court the jurisdictional point now advanced by
the applicant, the Court might have found that it could not grant prayer 2.3,
but that it could grant prayer 2.2. The Court might have refused both
prayers and granted some alternative form of relief. Or the Court might
have resorted to the option afforded by section 157(2) and refused to
have resorted to the option afforded by section 157(2) and refused to
grant relief until the parties had attempted conciliation. We will never
know. But for present purposes the point is that any of these alternatives
would have fallen within the Court’s powers if it had confined itself to
considering only whether the respondent should be ordered to consult with
the applicant.
[31] It may well have been that an order in terms of prayer 2.2 would have
been brutem fulmen because the retrenchment had by that stage been
completed. But this does not mean that the Court lacked jurisdiction to
entertain that prayer which the applicant, as dominis litis , was pursuing. In
any event, the relief sought in prayer 2.2 need not have been an exercise
in futility. The application had been lodged in the name only of the
applicant union. The applicant clearly had a continuing relationship with
the respondent. If the retrenchment had not been completed, as the
applicant now alleges the Court believed and was in fact the case when it
drafted the notice of motion, it could nevertheless have wished to enter
into consultation in respect of members who had already been dismissed.
It might still have wished to do so in respect of its members even if they
had all been dismissed with a view, perhaps, to persuading the
respondent to relent and resume consultations, or to consult over the
amount of severance pay or an undertaking to reemploy. Again, we will
never know.
[32] Whatever the applicant intended by pursuing prayer 2.2, the relief sought
therein was within the Court’s jurisdiction. The Court declined that relief
because, in its view, the respondent had already complied with section
189. The applicant returned to this Court with the claim that it had not. And
this Court found that that issue had already been disposed of in case no.
J321/98. The applicant has not advanced any ground to persuade me that
the Court lacked jurisdiction to entertain at least prayer 2.2 in case no.
J321/98. I do not believe that it has any reasonable prospect of
persuading another court that it did not.
[33] There remains to consider whether there is any other ground on which the
Labour Appeal Court might conceivably overturn the judgment in case no.
J801/98. For the reasons set out in that judgment, I am of the view that the
principle of res judicata was correctly applied. I am also of the view that
the plea of res judicata can be raised in an application brought under
section 191(5)(b) if the essence of the applicant’s case, as disclosed by its
statement of claim, had already dealt with in motion proceedings: see now
also Dumisani & others v Mintroad Saw Mills (Pty) Ltd [1999] 5 BLLR 485
(LC).
[35] For the above reasons, the application for leave to appeal must fail.
[36] I accordingly make the following order:
The application for leave to appeal is dismissed with costs.
_______________
J G GROGAN
ACTING JUDGE OF THE LABOUR COURT
DATE OF HEARING: 14 June 1999
DATE OF JUDGMENT:
FOR THE APPLICANT: Mr K S Tip SC (with him Ms L P Nobanda) instructed
by Maserumele & Partners.
FOR THE RESPONDENT: Mr F G Barrie, instructed by Brink, Cohen, Le Roux &
Roodt Inc