IN THE LABOUR COURT OF SOUTH AFRICA
(HELD AT BRAAMFONTEIN)
CASE NO J1119/00
In the matter between:
THE SOUTH AFRICAN DEMOCRATIC
FIRST APPLICANT
SECOND APPLICANT
THIRD APPLICANT
FOURTH APPLICANT
FIFTH APPLICANT
SIXTH APPLICANT
AND
THE HEAD OF THE NORTHERN PROVINCE
RESPONDENT
JUDGMENT
NKABINDE AJ
Introduction
[1] The applicants have approached this court for the award dated 10 February 2000 to be made
an order of court in terms of s. 158 (1) (c) of the Labour Relations Act No. 66 of 1995 (“the
Act”). They also seek an order of costs against the respondent.
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[2] The first applicant is the South African Democratic Teachers Union (commonly known as
SADTU), which represented the second to the sixth applicants during the conciliation
process. The second to the sixth applicants (collectively referred to as the “individual
applicants”), were teachers in the employ of the respondent. Their appointments, as will
become apparent hereunder, were unfairly withdrawn by the respondent, the Department of
Education in the Northen Province . I shall refer to the respondent as Department.
[3] The award sought to be made an order of court reads as follows:
“In the light of the above reasons, I find that the withdrawal of the appointments of the
Grievants by the Employer was unfair. I therefore, order the reinstatements of the
Grievants to the principalship posts, with retrospective effective” (presumably effect)
“within seven (7) days of receipt of this award.”.
[4] I may mention from the outset that the “Department” has accepted the decision of the
arbitrator that the individual applicants were unfairly withdrawn from their principal posts.
[5] The Department opposed this application on the basis that
5.1 the award does not require the individual applicants to be reinstated in the exact positions in
which they were immediately before the withdrawal of their appointments and that their re
instatement to the ranks of principal and awarding them the concomitant benefits connected
to that rank would constitute substantial compliance with the award;
5.2 the arbitration award is impossible to implement in that the posts to which the individual
applicants were appointed as principals were filled after the withdrawal of the individual
applicants’ appointments;
5.3 removing the present incumbents from such posts is likely to lead to further labour dispute
and unrest of the schools and the removal will not be approved by the School Governing
and unrest of the schools and the removal will not be approved by the School Governing
Bodies and may lead to actions against the applicants preventing them from taking up the
posts.
5.4 the department had made a settlement offer
5.4.1 promoting the individual applicants, without reinstatement, to the rank of principal;
5.4.2 paying them as if they were principals retrospectively from the date of their first
appointments; and
5.4.3 depending on the recommendation of the relevant School’s Governing Body, appointing the
individual applicants as principals at schools where principals posts may be vacant or may
become vacant in future.
5.5 the individual applicants have unreasonably rejected the settlement offer;
5.6 making the arbitration award an order of court will serve no purpose;
5.7 a review application by the Department is pending; and
5.8 the present incumbents were not joined as parties to the arbitration proceedings.
The factual background to the dispute
[6] The history of this matter is briefly that the individual applicants had been appointed by the
Department as principals at five different schools. After the interviews had been completed
the individual applicants were given letters of appointment. The letters of appointment
were, however, subsequently withdrawn by the Department. The applicants (including
SADTU), alleging that a dispute existed between them and the Department concerning the
withdrawal of their appointments, referred the dispute for arbitration. The arbitrator granted
the award which is the subject matter of this proceedings. The applicants launched this
application on 5 April 2000.
[7] On 2 June 2000 the Department filed its statement of defence and an application for review
of the award in terms of the Act, as well as an application for condonation for the delay in
filing the review application.
Condonation
[8] The Act provides for the review of matters under the Labour Court’s jurisdiction in three
sections. These are sections 145, 158(1)(g) and 158 (1) (h). It is not clear under what
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section the Department is seeking to review the award. I consider it reasonable to assume
that the Department sought to review the award under section 145 because section 145 deals
with review of award under the auspices of the Commission for Conciliation, Mediation and
Arbitration the (CCMA); section 158 (1) (g) deals with reviews of administrative functions
not specifically covered in sections 145 and 158 (1) (h). Section 158 (1) (h) deals with the
review of actions of the State as an employer (See: Carephone (Pty) Ltd v Marcus N O & Others [1998]
11 BLLR 1093 (LAC)). I shall, for the purpose of this judgment, not concern myself with the provisions of
sections 158 (1) (g) and 158 (1) (h).
[9] It is necessary to quote section 145 in full . It reads as follows:
“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 awards 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.”.
[10] The said award was made on 10 February 2000. It is common cause that it
was sent to the respective parties on 15 February 2000.The Department was
required, in terms of section 145, to apply to this court for an order setting aside the
arbitration award within six weeks of the service of the award. The Department
filed the application for review and condonation on 2 June 2000 i.e after the
prescribed time limit.
[11] The law with regard to condonation applications is well settled and had been laid down in a
number of court decisions. The factors which emerge from such decisions and are usually
relevant are the degree of lateness, the explanation therefor, the prospects of success and(in
some instances), the importance of the case. (See: Melane v Santam Insurance Co. Ltd
1962 (4) SA 531 at 532C; NEHAWU v Nyembezi (1999) 5 BLLR 463 (LAC) at para.
[5]; Ferreira v Ntshingila 1990 (4) SA 271 (A) at 281D; Darries v Sheriff Magistrate’s
Court Wynberg & Another 1998 (3) SA 34 (SCA) at 40J 41A). Another most material
factor in determining whether condonation should be granted or not is an element of actual
or potential prejudice to the opposing party ( See: Shepherd V Mossel Bay Liquor
Licensing Board 1954 (3) SA 852 (C)).
[12] The reasons advanced for the delay are contained in paragraphs 2.5 and 2.6 of the affidavit
in support of the application for condonation. It is explained that
12.1 The Department failed to bring this application earlier because it always regarded the re
instatement of the individual applicants to the rank of principal and not necessarily in the
instatement of the individual applicants to the rank of principal and not necessarily in the
post they occupied before their removal to constitute compliance with the award, and
12.2 The Applicants’ unreasonable approach, caused the delay.
[13] The Department has not dealt with the prospects of success at all. The Department, as I have
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indicated above failed to apply within the prescribed period. I must now examine the
explanation given to determine whether the period that has elapsed was, in the light of all the
circumstances, reasonable and acceptable. Firstly, it is stated that the applicants’
unreasonable rejection of the offer has caused the delay. I need to mention at this stage that
it is somewhat incorrect and misleading to state that the Department had made an offer to the
applicants with a view to settling the case. The correspondence between the parties hereto
clearly indicates that no offer was ever made by the Department to the applicants. All that
the Department did was to propose a round table conference to discuss what the Department
“was prepared to consider in an attempt to settle the matter”. Not an offer. Secondly, it is
stated that the Department always regarded that the reinstatement of the applicants to the
rank of principal and not necessarily in the posts they occupied before the withdrawal
constituted compliance with the award. A matter for great concern is that, notwithstanding
this view by the Department, no offer was made between 10 February 2000 and 2 June
2000 when the offer was mentioned for the first time in the statement of defence. I need to
mention that the offer, in any event, is certainly, not in substantial compliance with the
award. The Department merely offered to
“(a) promote the applicants concerned to the rank of principal; and
(b) remunerate them accordingly.”.
This is not what the award entails.
[14] Having examined the explanation given by the Department, it seems to me
that the delay was based on a deliberate and wilful decision not to comply with a
lawful and binding award. I am fortified in my view by what the Department has
stated in its defence, inter alia , that
stated in its defence, inter alia , that
(a) if the award is made an order of court in terms of s. 158 (1) (c), i.e. if the Department is
ordered to reinstate the individual applicants retrospectively
“... the making of the award an order of court would serve no purpose...”, and
(b) if the review application is refused the department will have no option but
“to commence retrenchment procedure in respect of each of the relevant applicants.”.
[15] The Department has not given an acceptable and/or satisfactory explanation
for its delay. The said explanation, in my view, displays a blatant disregard for the
decision of the arbitrator. There is no doubt that the applicants have suffered and
continue to suffer prejudice as a result of the failure to implement the award. In the
circumstances, I am not satisfied at all that good cause has been shown for this court
to excuse the Department’s delay Accordingly and without any need to enquire into
the merits, I consider it appropriate, as I hereby do, to refuse condonation .
Argument on the application to make the award an order of court
[16] Counsel for the applicants submitted that there is no merit in the contention that the award
is impossible of being implemented because
(a) the impossibility was of the Department’s creation;
(b) even on the Department’s view of what the award entails, there is still nothing impossible
about its implementation. For this he relied on Consolidated Frame Cotton Corporation
Ltd v The President, Industrial Court & Others 1985 (3) SA 150 (N) which was
confirmed on appeal and is reported in 1986 (3) SA 786 (A); (1986) 7 IJL 489 (A).
Mr Van der Riet submitted further that the Department is, by referring to possible unrest at
the Schools and to its intention to retrench the individual applicants if the award is made an
order of court, using an unacceptable strategy to create an emotional pressure on the
applicants and a bullying attitude. He further submitted that the individual applicants have
suffered prejudice as a result of the delay in implementing the award.
[17] Counsel for the respondent submitted that if the award means what it entails, making such
award an order of court will serve no purpose in that it would constitute brutum fulmen. In
this regard he referred this court to the case of Amalgamated Engineering Union V
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Minister of Labour 1949 (3) SA 637 (A) at 660 , where the learned Judge of Appeal
indicated that
“The court will not, for instance, issue a decree which will be a brutum fulmen because some
person who will have to cooperate in carrying it into effect will not be bound by it. Or
again, the Court will not, in a suit between A and B, order B to do something that affect C, if
C, by reason of his not being joined in the suit, will not be bound by the judgment and will
therefore be able to resist any attempt by B to obey the order.”.
The Law
[18] One of the supervisory functions of this court is the power to make an award an order of
court. This is the order which the applicants seek and which the Department is resisting.
This power is conferred by s. 143 read with s. 158 (1) (c) of the Act. These provisions, in so
far as are relevant, read as follows:
“143 (1) An arbitration award issued by a commissioner is final and binding and may be made an
order of the Labour Court in terms of s. 158 (1) (c), unless it is an advisory arbitration
award.
(2) ...
158 (1) The Labour Court may
...
(c) make any arbitration award or any settlement agreement, other than a collective agreement,
an order of the Court.”.
[19] The power to make an award an order of court is a discretionary one. The discretion must
however be exercised judicially. The trend in the decisions of this court indicates that this
court, generally speaking, is more in favour of lending enforceability of an award save
where, for example, it is alleged that the arbitrator failed to apply the rules of natural justice
or acted contrary to the rules or regulations designed to ensure compliance with the precepts
of natural justice.
[20] The pivotal question is whether the award is capable of being implemented. This question
turns on the meaning of the word “reinstate” or “reinstatement”. I shall, when dealing with
turns on the meaning of the word “reinstate” or “reinstatement”. I shall, when dealing with
this question, also consider the nonjoinder point raised by the Department. In determining
the meaning of the word “reinstate” or “reinstatement” it becomes necessary to visit the
empowering provision(s) of the Act. One of the remedies available to an employee unfairly
treated by his/her employer is reinstatement. The relevant section in this regard is section
193 of the Act. The relevant provisions are as follows :
“193 (1) If the Labour Court or an arbitrator ... finds that a dismissal is unfair, the court or
arbitrator may
(a) order the employer to reinstate the employee from any date not
earlier than the date of dismissal;
.......”
[21] It is trite law that in interpreting the provisions of a Statute the court should apply the golden
rule of construction. This rule is restated by Joubert JA in Adampol (Pty) Ltd v
Administrator, Transvaal 1989 (3) SA 800 (A), as follows:
“The plain meaning of the language in a statute is the safest guide to follow in construing the
statute. According to the golden or general rule of construction the word of a statute must be
given their ordinary, literal and grammatical meaning and if by so doing it is ascertained that
the words are clear and unambiguous, then effect should be given to their ordinary meaning
unless it is apparent that such a literal construction falls within one of those exceptional
cases in which it would be permissible for a court of law to depart from such a literal
construction, eg where it leads to a manifest absurdity, inconsistency, hardship or a result
contrary to the legislative intent.”. (At 804 BC)
[22] It is equally appropriate to follow this approach in the instant case when determining what
the legislature intended in enacting the provisions in s. 193, above. I must also have regard
to the context in which the word is used in the award. The order in terms of the award
simply requires the
“reinstatement of the Grievants to the principalship posts with retrospective effect.”.
[23] The ordinary meaning of the word “reinstatement” in the context in which the word is used
in the award, does not appear to require the employer to reinstate the individual applicants in
the very positions or posts which they occupied prior to the withdrawal of their
appointments: It would be impossible to reinstate them to such positions “with retrospective
effect”. The order, in my view, requires the Department to reinstate the individual
applicants with retrospective effect on terms and conditions of employment which are not
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less favourable than the terms and conditions applicable to them prior to such withdrawal.
In the words used by Mr Van der Riet, the Department does not have to kick the present
incumbents out. It follows, thus, that the award is capable of being implemented. I am
fortified in my view by what Thirion J stated, when he had occasion to determine the
meaning of the word “reinstate” within the context of s. 43 of the Labour Relations Act 28
of 1956 ( as repealed), in Consolidated Frame Cotton case , above, that
“... where a dispute has arisen concerning the termination of an employee’s employment, it
is competent for the industrial court to make an order requiring the employer to reinstate the
employee in his employ, despite the fact that the employee’s employment was terminated
through redundancy and the position in which reinstatement is sought no longer exists and
the employer is unwilling to have the employee reinstated.”. (At 158 J 159A).
The Appellate Division confirmed Thirion J’s view on appeal in Consolidated
Frame Cotton, at 494HI.
[24] Accordingly, I find that the award is not impossible to implement. I am not
unmindful of the practical problems which may flow from or accompany such
compliance. Such problems, if any, are not relevant to the question whether the award
should be made an order of court or not (See: Grogan, above, 114).
[25] As regards nonjoinder of the present incumbents to these proceedings, I need only say that
the award, as it stands, does not prejudice the rights of any party who is not before this court.
The case of Amalgamated Engineering Union, supra, was, in my view, a clear case of
joinder. It however bears little, if any, resemblance to the instant case.
joinder. It however bears little, if any, resemblance to the instant case.
[26] Of great concern to me is the fact that the Department has expressly demonstrated its
intention to disobey the order if the award is made an order of court (para 14, above) .I shall
have partly failed in my duty if I do not, upon consideration of the facts and the
circumstances of this case, express this court’s disapproval of the conduct of the
Department. In an era of the constitutional supremacy and rule of law such as that which
prevail in our country, conduct displayed by the Department should be discouraged. The
Department has deliberately and blatantly disregarded the law and the underlying purpose
and structure of the Labour Relations Act. It has stated in its statement of defence, that if
this court refuses its review application and make the award an order of court it will retrench
the individual applicants. This is distasteful indeed; It goes in the face of the rule of law; It
undermines the constitution and is repressive. I am not aware of any authority that
countenances behaviour of this kind. I need sound a caveat by referring to the well
articulated and famous Speech, by Mr Justice Braindeis of the US Supreme Court, quoted
with approval by the Honourable Acting Chief Justice Mr Chaskalson in his Speech that
“In a government of laws, existence of the government will be imperiled if it fails to observe
the law scrupulously ... government is the potent, the omnipresent teacher. For good or for
ill, it teaches the whole people by its example ... if the government becomes a law breaker, it
breeds contempt for the law, it invites every man to become a law unto himself, it invites
anarchy.”.
I could not agree more. The Provincial Department of Education in question needs to realise
that it is the “potent, the omnipresent teacher”to the people of this country. It must lead by
example.
[27] In the result, therefore, I make the following order:
30.1 The arbitration award dated 10 February 2000 be and is hereby made an order of Court in
terms of section 158 (1) (c) of the Labour Relations Act 66 of 1995 (as amended); and
30.2 The respondent/Department is ordered to pay the costs of this application.
B.E. NKABINDE
ACTING JUDGE OF THE LABOUR COURT
: H VAN DER RIET SC
: P VAN DER BYL SC
ATTORNEY FOR THE APPLICANTS : CHEADLE THOMPSON AND HAYSOM
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ATTORNEY FOR THE RESPONDENT : THE STATE ATTORNEY
: 23 MARCH 2001
: 30 MARCH 2001