IN THE LABOUR COURT OF SOUTH AFRICA
CASE NO: J5108/2000
In the matter between:
First Applicant
PROVINCIAL BARGAINING COUNCIL
Second Applicant
and
PUBLIC SERVICE COORDINATING
Respondent
REASONS FOR JUDGMENT
FRANCIS AJ
Introduction
1.On the 28 th February 2001, an urgent application was argued before me in terms of which the applicants had
applied to set aside a resolution that adopted by the respondent. After arguments were heard, I reserved
judgment until the 2 nd March 2001. On that day I reviewed and set aside the resolution that was adopted by
the respondent and ordered the respondent to pay the second applicant’s costs, including that of senior
counsel. These are the reasons for that order.
Background facts
2.On the 18 th April 2000 the respondent adopted resolution 3 of 2000 which is as follows:
“Noting that
* Schedule 7, Part D, item 14(2) and item 20(b), of the Labour Relations Act, No 66 of 1995 (“the LRA”)
read with Schedule 1, item 3(1) of the LRA, creates formal bargaining council structured in the provincial
administrations and the national departments that are not cost effective, or necessary
* Item 20(b)(i) and (ii) of Schedule 7 states that the provincial and national chambers created in terms of the
Public Service Labour Relations Act Proclamation No 105 of 1994 (“the PSLRA”) shall be deemed to be
the bargaining councils established in terms of section 37(3)(a) of the LRA. They have, therefore, been
1
deemed to be created by a collective agreement of the PSCBC.
* Section 37(3)(a) states that the Public Service Coordinating Bargaining Council (“the PSCBC”) may
designate any sector in the public service for the establishment of a bargaining council, and
* The PSCBC may amend any collective agreements that it has entered into.
The parties hereby resolve that:
1. The decision to designate bargaining councils in terms of the LRA (1995) in provincial administration and
national departments is withdrawn, subject to the following:
(a) The withdrawal of the decisions does not affect the establishment of the Education Labour Relations
Council, Safety and Security Sectoral Bargaining Council, Public Health & Welfare Sectoral Bargaining
Council and the General Public Service Sectoral Bargaining Council.
(b) Departmental and provincial bargaining councils in existence at the time of the coming effect of this
resolution shall continue to exist for a period of not longer than six months from such date.
(c) All agreements concluded in departmental and provincial bargaining councils and still valid at the expiry
of the period referred to in subparagraphs (b) above, will remain in force until amended or replaced by an
agreement concluded in the relevant sectoral bargaining council.
(2) Any dispute that arose in a departmental or provincial bargaining council before the expiry of the period
referred to in subparagraph (b) above, must be concluded in terms of the dispute resolution mechanism that
applied to such council at the time.
(3) The sectoral bargaining council designated by the PSCBC will, if necessary and in accordance with their
constitutions, establish chambers and/or committees in national and provincial administrations.
(4) The PSCBC may consider the establishment of provincial committees to facilitate and coordinate the
implementation of agreements reached at PSCBC and other sectoral bargaining councils.
(5) The agreement binds
(a) the employer;
(5) The agreement binds
(a) the employer;
(b) the employees of the employer who are members of the trade unions parties to this agreement; and
(c) the employees of the employer who are not members of any trade union parties to this agreement, but who
fall within the registered scope of council.
6. This agreement will come into effect from the date of signing.
7. If there is a dispute about the interpretation or application of this agreement any party may refer the matter
to the Council for resolution in terms of the dispute resolution procedure of the Council. Any dispute
arising concerning jurisdiction of the Chamber and/or other bargaining forums shall be dealt with in terms
of the provisions of the LRA.
8. The Council will monitor the implementation of this agreement.”
3.The effect of the withdrawal of the designation of Bargaining Councils meant that Bargaining Councils in the
Provincial Administrations (like the second applicant) and National Departments would therefore be dis
established and cease to exist.
4.The respondent passed a further resolution in terms of which the sixmonth period referred to in clause 1(b) of
Resolution 3 of 2000, was extended to 28 February 2001.
5.As a result of Resolution 3 of 2000, several meetings ensued between the applicants and the respondent in an
attempt to persuade the respondent to withdraw the said resolution. The respondent refused to do so. This
prompted the first applicant to launch this application.
6.On 24 November 2000, the second applicant gave notice that it intended to apply to be joined as a second
applicant in the above matter. The joinder application was granted on 5 January 2001.
Preliminary Issues
7.When the matter came before me, the respondent raised the issue of urgency. After the issue was argued, I ruled
that the matter was urgent. Whilst it is true that the respondent had passed its resolution on 18 April 2000,
the applicants had at all material times engaged the respondent in an attempt to persuade it to withdraw the
resolution. Several meetings had taken place which could not resolve the dispute. The respondent had
extended the sixmonth period to 28 February 2001 but was not prepared to extend it further.
8.The second preliminary point that was raised by the respondent was that the applicants had failed to comply with
the provisions of Rule 7 A of the Rules of the Labour Court.
9.Rule 7A was added to the Rules of the Labour Court to deal with reviews of arbitration awards under section 145
or 158(1)(g) of the LRA. Rule 7A(2)(b) requires an applicant for review to “call upon the person or body
under review to despatch ...... to the Registrar, the record of the proceedings sought to be corrected or set
aside, together with such reasons as are required by law or desirable to provide”. This rule is similar to Rule
3
53 of the Uniform Rules of the High Court. Rule 53 bears the same relationship to Rule 6 of the Uniform
Rules as Rule 7A has to Rule 7 of the Rules of the Labour Court. It was held in Jockey Club of South
Africa v Forbes 1993(1) SA 649 (A) at 661F that Rule 53 of the Rules of the High Court is for the benefit of
the applicant in review proceedings, and that an applicant’s decision to proceed in terms of Rule 6 without
calling for the record of the proceedings under review is not fatal to the application.
10.The record contemplated in Rule 7A(2)(b) is clearly the record, either hand written or electronically recorded, of
formal proceedings which require such a record. No such record exists in the present matter. The
applicants’ failure to comply with the provisions of Rule 7A was not fatal and was condoned by me.
11.The applicants had also applied for condonation of the late filing of their replying affidavits. The applications
were not opposed. I was satisfied with the reasons provided by the applicants and condoned their
applications.
The grounds for review
12.The grounds in support of the applicants prayer for review and setting aside of Resolution 3 of 2000, are that the
respondent’s actions in adopting the Resolution were ultra vires the provisions of the LRA and is therefore
void, alternatively voidable; and /or that respondent has contravened and/or infringed certain statutory
provision’s and/or statutory powers. The respondent did not have the power to take Resolution 3 of 2000.
13.The respondent contended that Resolution 3 of 2000 was intra vires for three reasons:
13.1 It is implicit in the provision of section 37(1) of the LRA, read with item 3(1) of Schedule 1, that the
respondent has the power to deestablish departmental and provincial bargaining councils.
13.2 The respondent’s power to designate a sector for the establishment of a council implies a reciprocal power
to reverse such a decision.
to reverse such a decision.
13.3 Since the departmental and provincial bargaining councils are deemed to have been established by the
respondent by collective agreement, the respondent could deestablish these councils by a collective
agreement.
The Issue
14. The crisp issue that I am required to determine is whether the respondent has the power to withdraw an
existing deemed designated bargaining council established in terms of item 3 of Schedule 7 and section
37(1) of the LRA.
Jurisdiction
15. This Court derives its power to review the decision of the respondent from the provisions of section 158(g)
of the LRA which provides that the Court may:
“review the performance or purported performance of any function provided for in terms of this Act or any
act or omission of any person or body in terms of this Act on any grounds that are permissible in law.”
16.The respondent is a statutory body, created by the LRA. It exercises its power and authority, and performs the
functions afforded to it, in terms of the LRA. This review concerns the exercise or purported exercise by
the respondent of its functions, powers and authority in terms of the LRA.
17.In considering whether the respondent’s decision should be set aside on the ground of illegality or irregularity,
the question appears to resolve itself into whether the respondent acted intra vires or not. If then the
respondent, whether as a consequence of misconstruing its powers or otherwise, does something which it is
not empowered to do, or fails to do something which it is obliged to do, it simply acts ultra vires.
18.A person or a body which derives its authority from legislation, cannot act validly if it is not granted that
authority by a statute, either expressly or implicitly. When considering the express provisions of a statute,
the normal rules of interpretation would have to be applied to determine whether the specific powers were
not exceeded.
5
Analysis of the facts and the arguments raised
19.The relief sought by the applicants depend upon a proper construction of certain statutory provisions.
20.It is common cause between the parties that the applicable statutory provisions are silent on the issue about
whether the respondent can deestablish a bargaining council or undesignate a sector.
21.Section 213 of the LRA defines a bargaining council and a sector as:
“A Bargaining council referred to in section 27 and includes, in relation to the public service, the
bargaining councils referred to in section 35.
A sector means, subject to section 37, an industry or services”.
22.Section 27 of the LRA deals with the establishment of bargaining councils. It reads as
follows:
“(1) One or more registered trade unions and one or more registered employers’ organisations may establish a
bargaining council for an area by
(a) adopting a constitution that meets the requirements of section 30; and
(b) obtaining registration of the bargaining council in terms of section 29.
(2) The State may be a party to any bargaining council established in terms of this section if it is an employer
in the sector and area in respect of which the bargaining council is established.
(3) If the State is a party to a bargaining council in terms of subsection (2), any reference to a registered
employer’s organisation includes a reference to the State as a party.
(4) A bargaining council may be established for more than one sector.”
23. Section 28 of the LRA sets out the powers and functions of bargaining councils. Section 29 of the LRA
deals with the registration of bargaining councils.
24. Section 30 of the LRA provides what the minimum provisions of a bargaining council’s constitution should
have.
25. Neither section 28, nor section 30, provides that a bargaining council can deestablish itself, or any other
bargaining council. Section 30(1)(q) requires that the constitution of any bargaining council must at least
provide for a procedure by which it may resolve to wind up.
26. Section 30(3) obliges the respondent to include a procedure for establishing a bargaining council in a sector
of the public service designated in terms of section 37(1) in its constitution. Again, there is no provision
made for the deestablishment of any bargaining council.
27. Part D of chapter III of the LRA deals with bargaining councils in the public service. Section 36 deals with
the Public Service Coordinating Bargaining Council. Section 36 provides as follows:
“36 Public Service Coordinating Bargaining Council
(1) The Public Service Coordinating Bargaining Council must be established in accordance with Schedule 1.
(2) The Public Service Coordinating Bargaining Council may perform all the functions of a bargaining
council in respect of those matters that
(a) are regulated by uniform rules, norms and standards that apply across the public service; or
(b) apply to terms and conditions of service that apply to two or more sectors; or
(c) are assigned to the State as employer in respect of the public service that are not assigned to the State as
employer in any sector.
28. Section 37 deals with bargaining councils in sectors in the public service. It provides
as follows:
“(1) The Public Service Coordinating Bargaining Council may designate a sector of the public service for the
establishment of a bargaining council.
(2) Despite subsection (1), the President, after consulting the Public Service Coordinating Bargaining
Council, may designate a sector of the public service for the establishment of a bargaining council if the
uniform rules, norms and standards applicable to the public service are not appropriate to regulate
employment in that sector.
employment in that sector.
(3) A bargaining sector for a sector designated by
(a) the Public Service Coordinating Bargaining Council must be established in terms of its constitution;
(b) the President must be established in terms of Schedule 1.
7
(4)(a) The President may designate a sector for the establishment of a bargaining council in respect of employees
of the State or organs of the State but who are not employees engaged in the public service.
(b) A bargaining council must be established in respect of a sector designated by the President in terms
paragraph (a) and the provisions of item 3(4) to (10) of Schedule 1 apply.
(c) A bargaining council established in terms of paragraph (b) will be deemed to be a bargaining council in the
public service for the purposes of this Act.
(5) A bargaining council established in terms of subsection (3) or (4) has exclusive jurisdiction in respect of
matters that are specific to that sector and in respect of which the State as employer in that sector has the
requisite authority to conclude collective agreements and resolve labour disputes”.
29. Item 2 of Schedule 1 of the LRA sets out a procedure for the establishment of the Public Service Co
ordinating Bargaining Council.
30. Item 3 of Schedule 1 of the LRA reads as follows:
“(1) The departmental and provincial chambers of the Public Service Bargaining Council are deemed to be
bargaining councils established in terms of section 37(3)(a) of this Act, subject to any designation in terms
of section 37(1) of this Act”.
31. Item 20 of Schedule 7 of the LRA reads as follows:
“When the Public Service Coordinating Council is established in terms of item 2 of Schedule 1
(a) the Public Service Coordinating Bargaining Council and its chamber at central level will cease to exists;
and
(b) the following chambers of the former Public Service Bargaining Council will continue to exist as juristic
persons, despite paragraph (a), namely
(i) the chamber for each department, which will be deemed to be a bargaining council that has been
established under section 37(3)(a) of this Act for that department;
(ii) the chamber for each provincial administration, which will be deemed to be a bargaining council that has
been established in terms of section 37(3)(a) for that provincial administration; and
(c) ..........
(d) ..........”.
32. In terms of item 20 of schedule 7 of the LRA, the departmental and provincial chambers of the previous
public service bargaining councils continued to exists as juristic persons. They are deemed to be bargaining
councils that were established under section 37(3)(a) of the LRA for their respective departments or
provincial administrations.
33.Section 37(1) confers upon the respondent the authority to designate a sector, but the establishment of the
bargaining council must be effected in terms of its constitution as is provided for in section 37(3)(a). In
other words all the respondent can do, is to designate a particular sector for the public service for the
establishment of a bargaining council. The respondent cannot establish a bargaining council. Once the
sector has been designated by the respondent, the parties involved in that sector will establish a bargaining
council for that sector in terms of its constitution. The parties will meet in an attempt to reach consensus on
the constitution. Provision will be made in its constitution on how the bargaining will cease to exist.
34.Section 37 of the LRA makes a distinction between ‘the designation of a sector for the establishment of a
bargaining council’ and ‘the actual establishment of the bargaining council’. The words used in section 37
are ‘designate’ and ‘establish’. The Shorter Oxford English Dictionary defines ‘designate’ and ‘establish’
as follows:
‘designate 1. To point out, indicate; to specify. 2. To point out by a name or description; to name,
denominate. 3. To appoint, nominate for duty or office; to destine to a purpose or fate.’
‘establish 1. To render stable or firm; to ratify; to confirm, settle; to restore (health) permanently. 2. To
fix, settle, institute or ordain permanently. 3. To set up on a secure basis; to found. 4. To set up in
business; to settle in pr at a place. 5. To set up or bring about permanently; to create (a precedent). Also
to create for oneself (a reputation, a position). 6. To place beyond dispute; to prove. 7. To position (a
church or religious body) in the position of a state chucrh.’
35.The words bear different meanings in the ordinary grammatical sense. In keeping with the fundamental
principles of interpretation that words must be given their ordinary grammatical meaning and must be
construed against the background of the statute as a whole and the jurisprudential context within which the
words were used, I am required to determine what the authority to ‘designate’ a sector for the establishment
of a council embraces.
9
36.The Legislature has expressly chosen to make a distinction between the earmarking or designation of a sector
and the actual establishment of the bargaining council which is to come into being. This distinction also
applies to councils established by the President. The latter have to be established in accordance with
Schedule 1 of the LRA which prescribes a detailed procedure for such establishment. Sectors designated by
the respondent, do not fall within the ambit of Schedule 1 and a new council is established in accordance
with the constitution which its members adopt.
37.There is nothing in section 37(1) which gives the respondent the right to deestablish any bargaining councils.
According to the respondent deestablishment amounts to a decision to no longer have these chambers
designated as bargaining councils. This is impermissible and contrary to the express provisions of the LRA.
38.New bargaining councils for the public service, i.e. councils which are established in addition to those existing at
the time when the LRA was enacted, come into being in the following manner:
38.1 The respondent designated a particular sector for the establishment of such a council;
38.2 The employer and employee parties have to meet and reach agreement on the constitution of the council,
which constitution must comply with the provisions of section 30(1) as is provided for in section 30(2).
38.3 The constitution is adopted by the parties agreeing thereto, whereupon the bargaining council is constituted
or comes into existence.
38.4 The newly established bargaining council applies to the registrar for registration, the registrar scrutinises its
constitution for compliance with section 30 and, if satisfied, enters the name of the council in the register,
whereupon the council obtains corporate status in accordance with section 50.
39.The designation by the respondent is therefore only a preliminary step which ultimately may lead to the
establishment of a new council. It is not the respondent who establishes new councils, the employer and
employees’ representatives do so.
40.I do accept that once the respondent has decided to designate a particular sector for the establishment of a
bargaining council, it will be entitled to withdraw that decision. It will be able to undesignate that particular
sector. The questions which must, however, be asked is at what stage it may do so.
41.The respondent may validly withdraw the designation of a sector prior to the establishment of the bargaining
council. Once a bargaining council has been established, however, the existence and affairs of the council
are regulated by the LRA. So, for example, such council is the body or party which may decide to dissolve
and indeed section 30(1)(q) of the LRA requires that the constitution of each council must provide for a
procedure by which it may resolve to be wound up. Once the council has been registered and has obtained
corporate status, its windingup has to be effected in accordance with the provisions of section 59.
42.The LRA does not confer upon the respondent the authority to change existing sectors within the public service
whether by abolishing one or other sector, by amalgamating two or more sectors, or otherwise. If the
Legislature had so intended, it would have said so, particularly in view of the effect which dissolution holds
for third parties, such as creditors. The Legislature has, however, not even conferred upon respondent the
authority to establish a council.
43.Once a bargaining council is established, it has an autonomous existence as a separate juristic person. Its
existence can only be ended by a decision taken in terms of its own constitution, its windingup in terms of
sections 59 and 60 of the LRA or the cancellation of its registration in terms of section 61 of the LRA. If it
was the Legislature’s intention that the respondent could take a decision to no longer have certain chambers
designated as bargaining councils, the LRA would not have had detailed provisions relating to the forming
and winding up of bargaining councils.
and winding up of bargaining councils.
44.The respondent has contended that implicit in the power given to the respondent by section 37(1) of the LRA to
designate sectors for the establishment of bargaining councils in the public service, read in conjunction with
11
item 3(1) of schedule 1 to the LRA, is the power to deestablish such councils. I do not agree. It is apparent
from section 37 and from Schedule 1 that the provisions of the said Schedule apply to councils established
by the President and to the establishment of respondent. It does not apply to existing councils, such as the
second applicant, which falls under the umbrella of Schedule 7, nor does it apply to councils established in
terms of section 37(3)(a).
45.In order for the respondent to arrive at a power or authority to dissolve or deestablish bodies corporate such as
the second applicant in terms of the LRA, the respondent must show that the power to designate can
properly be equated with the power to establish, which proposition runs contrary to the express wording of
section 37 of the LRA. The respondent must show that it is entitled to appropriate unto itself the power to
dissolve an established council, which offends against the express provisions of section 30(1)(q) and/or
section 59(1). It must also show that it is entitled to appropriate unto itself the power to apply for the
dissolution or windingup of a registered bargaining council, which is a body corporate, alternatively the
power to call upon the bargaining council concerned to do so itself. The express provisions of sections
30(1)(q) and 59 of the LRA militate against the appropriation of the former power. There is no provision in
the LRA in terms whereof the respondent has been given the latter power and a construction importing such
a power into the language of the LRA would offend against the provisions of section 37(5), and would result
in conflict with the cardinal rule of construction.
46. The respondent has contended that it resolved to ‘deestablish’ provincial bargaining councils, that this
resolution is tantamount to ‘a decision to no longer have these chambers designated as bargaining
councils’ and that ‘the practical implementation of this decision is still in the process of discussion with the
second applicant.’
47.The aforementioned allegation should be read against the background of the express wording of resolution 3.
Paragraph two of the preamble to the resolution refers to the provisions of item 20(b) of Schedule 7 and
concludes that, by virtue of such enactment the provincial and departmental councils ‘ have, therefore, been
deemed to be created by a collective agreement of the PSCBC.” In accordance with that view, the fourth
paragraph of the preamble states that ‘the PSCBC may amend any collective agreements that it has entered
into.”
48.The aforegoing clauses in the preamble to the resolution provide the rationale for the decision taken by the
respondent and that such rationale is fatally flawed.
49.Item 20 of Schedule 7 has expressly reserved the corporate status of the chambers of the former Public Service
Bargaining Councils. Instead of providing that such chambers be dissolved and that new councils for
national departments and provincial administrations be formed in accordance with the provisions of section
37(3), the Legislature has elected to preserve the corporate bodies intact. Whilst the provisions of section
37(3) are clearly required for the formation of councils in sectors where none had previously existed, the
Legislature has avoided such procedural steps in the case of the departmental and provincial bodies which
were already in existence.
50.The argument raised by the respondent that the departmental and provincial councils are deemed to have been
created by collective agreement of the respondent can, in any event, also not be sustained. As has been
stated above, the respondent does not have the power or authority to create a bargaining council in the sense
that it does not have the power to designate a sector for which a council should in its opinion be established.
The actual establishment of the council is a separate procedure which is not in the hands of the respondent.
51.The respondent had attempted to draw a distinction between the taking of its decision to deestablish the
provincial and departmental councils and the actual implementation of that decision which involves the
dissolution of the affected councils. In making such a distinction, respondent has contended that the
practical implementation of the resolution is still under discussion, the inference being either that the
13
continued existence of the affected councils has not yet been and will not be affected by the resolution when
it becomes effective on 1 March 2001, or that the councils will cease to exist albeit that they have not been
liquidated. Such contentions can similarly not be sustained, given the wording of clause 1 of the resolution
which unambiguously states that:
‘(b) Departmental and provincial bargaining councils in existence at the time of the coming into effect of this
resolution shall continue to exist for a period of not longer than six months from such date.’
52.The meaning and intent of the said clause (b) is readily apparent. Respondent’s intention is that the said
councils shall cease to exist and that their powers will devolve upon the newly established sectoral
bargaining councils. The respondent had admitted the allegation to this effect contained in the second
applicant’s papers.
53.The provincial or departmental bargaining council as a body corporate can only cease to exist once it has been
liquidated in terms of section 59 of the LRA. The adoption of a contrary interpretation would fly in the face
of the express provisions of section 59 and would negate the important legal consequences which flow from
corporate status. Not only the rights of the members of the councils would be infringed, but the rights of
third parties such as creditors would be disregarded.
54.The Legislature was clearly mindful of the rights of members of a council as well as those of third parties. If
this were not so, section 59 would not have been enacted. If respondent were to be able to terminate the
existence of a council by its decision, the aim and object if section 59 which revolves around the protection
of members and creditors, would be circumvented. The Legislature clearly cannot have been taken to have
intended such an anomalous result.
55.In support of its contention that it was entitled to adopt Resolution 3 of 2000, respondent alleged inter alia , that:
55.1 The legislation enacted prior to the LRA ‘created central negotiating structures in line with the centralised
management authority in the public service’;
55.2 ‘as managerial authority in the public service was centralised, these chambers (provincial and
departmental) were vested with very little power in relation to issues that could be bargained over;
55.3 ‘... the collective bargaining structures are located where managerial authority is vested in the public
sector;
55.4 ‘In real terms, the departmental and the provincial administration bargaining chambers are not sectoral
councils as, many straddle different sectors.’
55.5 ‘The continued existence of the departmental and provincial bargaining councils does not fulfil any
meaningful collective bargaining role.’
56.In making the express provision contained in item 20 of Schedule 7 to the LRA the Legislature has, in full
knowledge of the then existing chambers for the departments and provinces in the public service,
acknowledged that departments and provinces each have their own specific needs and that each department
and Province constitutes a specific sector of operations within the public service. The Legislature had, in
addition, safeguarded the autonomy of such sectors and their bargaining councils in terms of section 37(5)
and the construction opted by the respondent is clearly in conflict with such express language on the part of
the Legislature.
57.Moreover, if the existing departmental and provincial bargaining councils were to be dissolved, a lacuna would
be created. The Provinces would have no bargaining structures in place which could negotiate and conclude
binding agreements in terms of the LRA between the employer and the employees’ representatives and the
provincial employers would be unable to comply with their obligations as aforesaid. If the Legislature had
intended to dissolve existing departmental and provincial councils, or to afford respondent the authority to
do so, it would no doubt have said so and would, in addition, have provided for certain transitional
arrangements so as to ensure a smooth and regulated change to the existing structure of collective
bargaining and would have provided protection for the rights of third parties. The Legislature has not done
so. On the contrary, it has expressly preserved the existing bargaining structures and has entrenched the
15
autonomy of each council in section 37(5). Moreover, the Legislature has in section 36(2) expressly defined
respondent’s role in the collective bargaining process and has confined it to matters which:
‘(a) are regulated by the uniform rules, norms and standards that apply across the public service; or
(b)apply to terms and conditions of service that apply to two or more sectors; or
c)are assigned to the State as employer in respect of the public service which are not assigned to the State as
employer in any sector.’
as opposed to matters which fall within the exclusive prerogative of a provincial or departmental council.
58. In pursuing its contention that it has merely decided to withdraw a designation and that such withdrawal is
separate from dissolution, the respondent has further alleged that subsequent to its decision to ‘deestablish’
a council as aforesaid, the windingup and cancellation of such council falls to be dealt with in terms of the
provisions of sections 59 and 61 of the LRA and that the registrar may apply for its windingup if the
council fails to do so.
59.The respondent, however, appeared to have lost sight of the express provisions of section 59(1)(b) of the LRA.
The section expressly states that a Court may order the windingup of a council. Moreover, if a council,
such as the second applicant is unable to function because of the respondent’s unauthorised decision or
conduct in purporting to deestablish or dissolve it, the matter can be remedied. A Court may set aside the
unauthorised decision and the Court would be bound in law to do so if it finds that the actions of the
respondent were unauthorised and ultra vires the provisions of the LRA.
60.The power of the registrar to cancel the registration of a council in terms of section 61, comprises two distinct
scenarios. On the one hand, the registrar may effect such a cancellation in terms of sections 61(1) and (2)
once the Court has wound up a council. The registrar’s power to cancel the registration of a council other
than in terms of a Court order, is derived from section 61(3). The latter section provides two grounds upon
which the registrar may seek cancellation of registration:
60.1 if the council has ceased to perform its functions in terms of the LRA for a period in excess of 90 days prior
to notification being given by the registrar that he is considering cancellation (section 61(3)(a)); or
60.2 the council has ceased to be representative in terms of the provisions of the relevant Part, for a period in
excess of 90 days prior to the date of the registrar’s notice (section 61(3)(b).
61.Absent the unauthorised decision of the respondent to dissolve a council the Court when dealing with
cancellation in terms of section 61(5), would have to be satisfied that the council has indeed ceased to
perform its functions or has ceased to be representative.
62.The first applicant conceded that it has a continuous relationship with the respondent. Neither of the two parties
sought costs against each other in the event that they were successful. Both the second applicant and the
respondent sought costs against each other in the event that they were successful. This is a matter where
the second applicant should be entitled to its costs.
63.The decision taken by the respondent on 18 April 2000 was ultra vires.
FRANCIS AJ
JUDGE OF THE LABOUR COURT OF SOUTH AFRICA
: G C PRETORIUS SC INSTRUCTED BY
: M DE SWARDT SC INSTRUCTED BY
: ATTORNEY P MASERUMULE OF MASERUMULE INC
: 28 FEBRUARY 2001
: 2 MARCH 2001
: 26 APRIL 2001
17