Sneller Verbatim/HVR
IN THE LABOUR COURT OF SOUTH AFRICA
BRAAMFONTEIN CASE NO: J788/03
2003-
In the matter between
PLACER DOME WESTERN AREAS JOINT Applicant
VENTURE T/A SOUTH DEEP
and
NATIONAL UNION OF MINEWORKERS Respondent
__________________________________________________________
J U D G M E N T
__________________________________________________________
LANDMAN J: On 15 April my sister, REVELAS J, granted a rule
nisi, prohibiting the National Union of Mine Workers and its
members from participating in an unprotected strike against
Placer Dome Western Areas Joint Venture.
The respondents in that application, NUM and its
members employed at Placer Dome, were entitled to
anticipate the rule on 12 hours' notice. They have done so.
They seek to have the interim interdict discharged.
The basic facts of this matter are the following:
1. A dispute about the length of an Easter break arose between
Placer Dome and NUM.
2. On 6 February 2003 NUM referred the dispute about the break
to the CCMA. In its referral, form LRA711, it cited
Mr Abey Mataboge as the employer.
3. It was common cause that Mr Mataboge is the IR Manager of
Placer Dome.
4. On 1 April NUM and Placer Dome recorded that NUM will apply
to substitute Placer Dome as a party to the CCMA proceedings.
Placer Dome recorded that it would not oppose the application.
The conciliation process was postponed to 10 April.
5. On 11 April Placer Dome's attorney confirmed that no order
had yet been made substituting his client as a party to the
proceedings. The attorney confirmed that the jurisdictional
issue had still to be decided by Commissioner Johnson.
6. On 14 April NUM served a strike notice on Placer Dome to the
effect that the strike will commence at 19:00 on 16 April.
7. An application for an interdict was launched and the order
mentioned above was granted.
8. On the same day, in the absence of Placer Dome, Senior
Commissioner Radebe listened to NUM's application to change
the citation in the referral and ordered that the citation be
changed from Mataboge to Placer Dome Western Areas Joint
Venture.
9. This led to today's anticipated return date. It is argued, on
behalf of NUM, that the union has complied with section 64 of
the Labour Relations Act 66 of 1995 after having the defective
referral cured.
One of the issues which was argued, is whether the
senior commissioner amended the citation or substituted the
party. The second issue was whether Placer Dome had
accepted that it was a party and waived its right to object to
the defective referral.
It was also contended by Mr Cassim, SC, who appeared
on behalf of Placer Dome, that the ruling of the senior
commissioner did not give legal force to the strike notice.
I do not propose to consider whether NUM's application
was brought in terms of rule 26 or rule 27 of the Rules of the
CCMA for the Conduct of Proceedings before the CCMA. See
Government Notice 961 in Government Gazette 23611 of 25
July 2002.
In terms of section 115(6) of the LRA the CCMA was
empowered to publish such rules. The rules were said to be
made in terms of section 115(2)(A). This section was inserted
in the LRA by the Labour Relations Amendment Act 12 of 2002.
This Act came into operation on 1 August 2002 after the rules
allegedly came into force.
The result would appear to be that the rules are ultra
vires. However, it is unnecessary for me to decide this. But I
should point out that the previous rules were reppealed on the
same day, namely 25 July 2002 by Government Notice, R956,
in the same Government Gazette. In consequence there may
have been no authority for the senior commissioner to have
changed the citation or substituted the party on the referral
form.
Section 64(1)(a) and (b) of the LRA reads as follows:
"Every employee has the right to strike and every employer
has recourse to lock out if;
(a) the issue in dispute has been referred to a council or to the
commission as required by this act and
(i) a certificate stating that the dispute remains unresolved has
been issued; or
(ii) a period of 30 days, or any extension of that period agreed to
between the parties to the dispute, has elapsed since the
referral was received by the counsel or the commission, and
after that;
(b) in the case of a proposed strike, at least 48 hours' notice of the
commencement of the strike in writing has been given to the
employer.
For present purposes, a proper referral of a dispute for
conciliation as contemplated by section 64(1) of the LRA is a
dispute which is identified in form 7.11 in which the employer
party is named and which is served on that employer.
Form 7.11, as completed by NUM, stated that Mr
Mataboge was the employer. He is, of course, not the
employer of the second and further applicants.
Mr Mataboge knew that NUM did not intend him to be the
employer. He knew that the document referred to Placer
Dome. It was processed as such. Placer Dome informed NUM
that the referral was defective. It agreed that it would not
object to an application for the citation of the employer party
in form 7.11 to be amended but it reserved its rights regarding
the jurisdictional issue.
In my view Placer Dome and NUM knew that the dispute
concerned the Easter break, that this was a dispute between
Placer Dome and NUM, that the reference to the employer
party in form 7.11 was intended to be and was a reference to
Placer Dome, and that it was envisaged that if the dispute was
not conciliated a strike would be called against Placer Dome.
NUM could have withdrawn the referral and referred the
matter afresh. I do not believe it was obliged to do so. It may
rely on the existing form. There has, in my view, been
substantial compliance with the requirements of section 64(1)
as regards the referral and with regulation 11 of the Labour
Regulations (R939 of 25 July 2002 published in Government
Gazette 236111) insofar as such regulations are valid.
In the premises, I am satisfied that the respondents
have complied with section 64(1) of the Labour Relations Act
and that paragraph 1.9 of the rule nisi, should be discharged
with costs and it is so discharged.
SIGNED AND DATED AT BRAAMFONTEIN ON 27 MAY
2003
__________________
A A LANDMAN
JUDGE OF THE LABOUR COURT OF SOUTH AFRICA
FOR APPLICANT: ADV N CASSIM
APPOINTED BY: PERROT, VAN NIEKERK & WOODHOUSE
FOR RESPONDENT: ADV LENGANE
APPOINTED BY: MASERUMULE INC