IN THE LABOUR COURT OF SOUTH AFRICA
(HELD AT CAPE TOWN)
CASE NO: C718/00
DATE: 1-3-2002
In the matter between:
THE DEPARTMENT OF JUSTICE Applicant
and
THE COMMISSION FOR CONCILIATION, Second and Further
MEDIATION AND ARBITRATION & OTHERS Respondents
J U D G M E N T
(Application for Leave to Appeal)
WAGLAY, J:
1. This is an application for leave to appeal against the judgement of this
Court handed down on 7 September 2001.
2. The matter originally concerned an application to review and set
aside the finding of the Commission for Conciliation, Mediation and
Arbitration Commissioner concerning the alleged unfair failure to
promote the fourth and fifth respondents. The Commissioner
found that the non-promotion of the respondents amounted to an
unfair labour practice within the meaning of Item 2(1)(b) of
Schedule 7 of the Act. He accordingly ordered what he took to be
the effective instatement of the respondents' to the positions they
had applied for. The decision of this Court was to review and set
aside the arbitration award with costs.
3. The finding of this Court was based on the following
considerations:
3.1. Based on general principles of law; the factors to be taken into
account in determining how the question of jurisdiction should be
resolved where there are two possible main causes of action, each
with a different forum having jurisdiction.
3.2. After applying the consideration in 1 above in the form of the
general test for causation, the Court held that where more than
one cause constituted a proper cause of action applicant could
select the cause he wished to pursue.
3.3. The Court agreed with the applicant in its contention that the fact
that the positions could have been filled by external candidates
precludes the possibility that the appointments were promotions
as opposed to appointments.
3.4. That the finding of the Commissioner, that the National Director for
Human Resources Development should have been aware that the
ultimate appointees were not suitable for the position in question
was not rationally connected to the evidence before him.
3.5. The nature of the CCMA award: This Court held that insofar as the
award effectively usurped the function of the Public Service
Commission which was not joined as a party to the proceedings,
the Commissioner had exceeded its powers and committed an
irregularity.
4. In its prayer for leave to appeal, the respondent effectively
challenges the findings of this Court in their entirety. It must be
noted that the majority of applicant's points were those raised in
the course of the trial and had accordingly already been dealt with
in the judgement. Nevertheless, applicant is correct in its
submission that the matter is one of general importance worthy of
consideration by the Labour Appeal Court. Further, many of the
issues dealt with in the judgement are ones that had not been
exhaustively dealt with by the Legislature. In particular:
4.1. The general principles applied by the Court regarding the correct
process by which the primary cause of action is to be established
for purposes of jurisdiction were derived from various comparative
examples in the field of labour law such as unfair dismissal and
basic conditions of employment. Being the first time that these
principles, to this Court's knowledge, have been applied to the
distinction between unfair labour practice and unfair
discrimination, it is possible that another Court may arrive at a
different interpretation and decide that other factors are relevant
or apply the stated principles in a manner which leads to a
different outcome.
4.2. The finding of this Court that the filling of the advertised
positions amounted to appointments and not promotions based
on the fact that the positions were open to be filled by external
candidates may be open to a different interpretation. The Labour
Appeal Court may choose to view the question of promotion purely
from the standpoint of the respondent.
4.3. The issue of the Public Service Commission which was not
raised in argument by either of the parties. It is possible that the
Labour Appeal Court may come to a conclusion at variance with
this Court's assumptions that in review proceedings the Court may
consider relevant matters which have not necessarily been argued
before it.
Although this Court has found the award of the Commissioner to be
fatally flawed the Labour Appeal Court may find otherwise.
5. Leave to appeal against the whole judgement of this Court is
therefore granted. The issue of costs of this application should
be
dealt with on appeal.
______________
WAGLAY J