REPUBLIC OF SOUTH AFRICA
THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
REPORTABLE
Case number: 026/03
In the matter between:
NATIONAL UNION OF METALWORKERS
OF SOUTH AFRICA and others Applicants
and
FRY’S METALS (PTY) LTD Respondent
BEFORE
: MPATI DP, CAMERON, NUGENT, CONRADIE JJA and
COMRIE AJA
HEARD: 22 FEBRUARY 2005
DELIVERED: 12 APRIL 2005
Constitution – appellate court structure – section 168(3) – appeal lies from Labour
Appeal Court to Supreme Court of Appeal – section 173 – court’s inherent power to
protect and regulate own process – requirement that special leave to appeal be
obtained imposed – Labour Relations Act 66 of 1995 – section 187(1)(c) –
automatically unfair dismissals – only those non-reversible dismissals where
employer’s reason for dismissal is to compel agreement with demand – approach of
Labour Appeal Court endorsed – leave to appeal refused
JUDGMENT
MPATI DP & CAMERON JA:
2
MPATI DP & CAMERON JA:
[1] Three questions arise in this application for leave to appeal. The first is whether
this court has jurisdiction to hear appeals from the Labour Appeal Court (LAC). If it
does, the second is whether leave to appeal must be obtained. The third is the
substance of the case the applicants seek to bring before us – whether the dismissal
or threatened dismissal of the second to fifty-seventh applicants by their employer,
the respondent company (the company), after they refused to agree to proposed
changes to their terms and conditions of employment in late 2000, qualifies as
‘automatically unfair’ under the Labour Relations Act 66 of 1995 (the LRA).
[2] The company’s primary business is smelting and refining lead from secondary
materials. The second to fifty-seventh applicants (the workers) are members of the
first applicant, the National Union of Metal Workers of South Africa (NUMSA) (the
union). We refer collectively to the union and the workers as ‘the union’. They seek
leave to appeal against an order of the LAC
1 reversing with costs an order the
Labour Court 2 granted inter alia interdicting the company from dismissing the
workers for their failure to accede to the company’s demands regarding the
implementation of a two-shift system and the withdrawal of a transport subsidy in the
context of proposed changes to terms and conditions of employment. The company
opposes the application for leave to appeal.
1 Fry’s Metals (Pty) Ltd v National Union of Metalworkers of SA (2003) 24 ILJ 133 (LAC) (Zondo JP, Nicholson JA and
Hlophe AJA concurring).
2 National Union of Metalworkers of SA v Fry’s Metals (Pty) Ltd (2001) 22 ILJ 701 (LC) (Francis AJ).
3
[3] The judges of this court who considered the petition for leave to appeal referred
it for oral argument.3 In terms of their order, the parties in two similar applications,
Rustenburg Platinum Mines Ltd v CCMA, 4 and Goodyear SA (Pty) Ltd v CCMA, 5
were invited to appear at the hearing and/ or to present written argument on the
question of appellate jurisdiction. Later further similar applications were lodged.
These were postponed pending the outcome of the present matter, with identical
invitations. In response, written argument was filed and counsel appeared on behalf
of both Algorax (Pty) Ltd
6 and Rustenburg Platinum. A notice of acquiescence was
filed on behalf of Goodyear. The Minister of Justice and Constitutional Development
and the Minister of Labour (the Ministers) were at their own request joined as
interested parties, and were jointly represented by counsel.
[4] Before dealing with the facts, we consider whether this court has jurisdiction.
Does the SCA have jurisdiction to hear appeals from the LAC?
[5] All public power, including the power that is wielded by the courts, emanates
from the Constitution. Chapter 8 of the Constitution vests the judicial authority of the
3 Section 21(3)(c)(ii) of the Supreme Court Act 59 of 1959.
4 Case no 596/03.
5 Case no 074/04.
6 Case number 430/2003.
4
Republic of South Africa in the courts. 7 Section 166 describes the courts in which
the judicial authority is vested. It says that these courts ‘are’:
‘(a) the Constitutional Court;
(b) the Supreme Court of Appeal;
(c) the High Courts, including any high court of appeal that may be established by an Act of
Parliament to hear appeals from High Courts;
(d) the Magistrates’ Courts;
(e) any other court established or recognised in terms of an Act of Parliament, including any
court of a status similar to either the High Courts or the Magistrates’ Courts.’
[6] Section 168(1) states that the Supreme Court of Appeal ‘consists of a President,
a Deputy President and the number of j udges of appeal determined by an Act of
Parliament’. Section 168(2) provides that a matter before the Supreme Court of
Appeal ‘must be decided by the number of judges determined in terms of an Act of
Parliament’. Section 168(3) is critical to the resolution of the issues the application
raises. It provides:
‘(3) The Supreme Court of Appeal may decide appeals in any matter. It is the highest court of
appeal except in constitutional matters, and may decide only –
(a) appeals;
(b) issues connected with appeals; and
(c) any other matter that may be referred to it in circumstances defined by an Act of
Parliament.’
7 Constitution s 165(1): ‘The judicial authority of the Republic is vested in the courts.’
5
[7] Various provisions of the LRA deal with the appellate jurisdiction of the LAC.
Section 157(1) confers, subject to the Constitution and s 173, exclusive jurisdiction
on the Labour Court in respect of all matters that elsewhere in the LRA or in terms of
any other law are to be dealt with by the Labour Court. Matters within the exclusive
jurisdiction of the Labour Court are those wh ich, in terms of the LRA or any other
law, ‘are to be determined by the Labour Court’ (s 157(1)). Section 157(2) provides
that the Labour Court has concurrent jurisdic tion with the High Court in respect of
Bill of Rights violations arising from employment and labour relations and related
matters. Section 166(4) provides –
‘Subject to the Constitution and despite any other law, an appeal against any final judgment or
final order of the Labour Court in any matter in respect of which the Labour Court has exclusive
jurisdiction may be brought only to the Labour Appeal Court.’
[8] Section 167(1) establishes the LAC as a court of law and equity. Sub-sections
(2) and (3) provide:
‘(2) The Labour Appeal Court is the final court of appeal in respect of all judgments and orders
made by the Labour Court in respect of the matters within its exclusive jurisdiction.
(3) The Labour Appeal Court is a superior court that has authority, inherent powers and
standing, in relation to matters under its jurisdiction, equal to that which the Supreme Court of
Appeal has in relation to matters under its jurisdiction.’
Section 173(1) determines the jurisdiction of the LAC:
‘Subject to the Constitution and despite any other law, the Labour Appeal Court has
exclusive jurisdiction –
6
(a) to hear and determine all appeals against the final judgments and orders of the Labour
Court;
(b) to decide any question of law reserved ….’
According to this provision, once a litigant in a matter in which the Labour
Court enjoys concurrent jurisdiction with the High Court decides to litigate in
the Labour Court, the LAC has exclusive jurisdiction to determine an
appeal. But because the Labour Court does not have exclusive jurisdiction,
s 167(2) of the LRA does not apply and the LAC would not, under that
section, be ‘the final’ court of appeal. Its decision is, however, made final
(subject to the Constitution) by s 183:
‘Subject to the Constitution and any other law, no appeal lies against any decision,
judgment or order given by the Labour Appeal Court.’
This applies in respect of all final judgments and final orders of the Labour Court;
questions of law reserved; and decisions of the LAC sitting as a court of first
instance. Section 175 provides that the LAC may sit as a court of first instance, in
which case it ‘is entitled to make any order that the Labour Court would have been
entitled to make’.
[9] These provisions undoubtedly constitute a legislative endeavour to vest final
appellate powers in the LAC. But they must be interpreted in accordance with the
Constitution. They expressly state themselves to be ‘subject to the Constitution’ (ss
157(1); 166(4); 173(1); 183). Section 167(2) does not; but the exception is only
7
apparent, since s 3 of the LRA states that its provisions must all be interpreted ‘in
compliance with the Constitution’.
[10] And indeed the Constitution incontrovert ibly qualifies the finality of the LAC’s
appellate powers. Most obviously in respect of constitutional questions it is not the
final court of appeal. For s 167(3)(a) of the Constitution states that the Constitutional
Court (the CC) ‘is the highest court in all constitutional matters’. The LRA can hardly
be read as excluding the CC’s final adjudicative power, since that would be plainly
unconstitutional;
8 and none of the parties disputed that the statute must to that
extent be qualified.
[11] But the point has broader significance. This is because the qualification is
nowhere expressly stated in the LRA (nor can the CC’s appellate jurisdiction over
the LAC derive tangentially, as was suggest ed in argument, from the fact that s
157(2) of the LRA vests concurrent jurisdiction in the High Court – and thence to the
CC – for Bill of Rights violations concerning labour matters). The appellate power is
general, and it derives not from its conferral in a statute, but from the Constitution,
and the Constitution alone.
[12] The starting point therefore must be that the LRA’s provisions conferring
finality on the LAC have to be read in conjunction with the appellate powers the
8 The Constitutional Court has asserted its appellate powers over the LAC in respect of constitutional questions arising
from the guarantee of fair labour practices (Bill of Rights s 23): National Education, Health and Allied Workers Union v
University of Cape Town 2003 (3) SA 1 (CC); National Union of Metalworkers of SA v Bader Bop (Pty) Ltd 2003 (3) SA
513 (CC); Xinwa v Volkswagen of South Africa (Pty) Ltd 2003 (4) SA (CC); Western Cape Workers Association v
Halgang Properties CC 2004 (3) BCLR 237 (CC); Dudley v City of Cape Town (2004) 25 ILJ 991 (CC), 2004 (8) BCLR
805 (CC). Compare South African Commercial Catering & Allied Workers Union v Irvin & Johnson Ltd 2000 (3) SA 705 (CC).
8
Constitution creates: and that premise goes a long way to resolving the question
before us. For from it follows that the LRA’s provisions must also be read in
conjunction with the appellate power the Constitution vests in this court; and this is
what the CC has held. In describing its ow n appellate jurisdiction over the LAC, it
has asserted also that of this court. It has found that ‘an appeal from the LAC on a
constitutional matter does lie to the SCA’,
9 and that ‘The provisions of the LRA which
give the LAC a status equal to that of the SCA and constitute it as the final Court of
appeal can have no application in constitutional matters’.10
[13] The court left open the validity and application of those provisions in non-
constitutional matters,
11 and that is the question that now confronts us. It seems to
us that acknowledgement of a constitutionally determined appellate structure
superior to the LAC has unavoidably general implications. For if this court has
appellate jurisdiction over the LAC, deriving from the Constitution, outside the
express terms of the LRA, there can be no reason to limit that power to
constitutional cases alone, for the Constitution gives this court such power in both
constitutional and non-constitutional matters, and constitutes it the highest court of
appeal in regard to the latter.
9 NEHAWU v UCT 2003 (3) SA 1 (CC) para 22, per Ngcobo J, on behalf of the court
10 NEHAWU v UCT, supra, para 20.
11 ‘Those provisions can apply only to matters that are within the exclusive jurisdiction of the LAC and the Labour Court
(whether these provisions are constitutional need not be decided now)’ – NEHAWU v UCT, supra, para 20.
9
[14] Indeed, the CC’s reasoning in NEHAWU v UCT 12 was based not on the
Labour Court’s non-exclusive jurisdiction in constitutional matters (s 157(2)), but on
the powers emanating from the Constituti on itself. Section 168(3) states not only
that this court ‘may decide appeals in any matter’ – a revocation of the position
under the interim Constitution,
13 which insulated this court from all constitutional
questions14 – but also that it is ‘the highest court of appeal except in constitutional
matters’.
[15] There can be no reason to give this provision anything less than its full
meaning in relation to both constitutional and non-constitutional matters. Counsel for
the Ministers suggested that the phrase ‘highest court of appeal’ establishes no
general appellate jurisdiction in this court, but simply fixes its position in the court
hierarchy. But the phrase ‘highest court’ appears also in s 167(3) of the Constitution,
which creates the CC ‘the highest court’ in all constitutional matters. It was in
reliance on this provision that Ngcobo J found that the CC is the highest court in
respect of all constitutional matters and that decisions of all other courts on
constitutional matters are accordingly subject to appeal to it.
15 It is a long-
established principle – based on concern for intelligibility of legislative language –
12 2003 (3) SA 1 (CC). Compare also Mabaso v Law Society, Northern Provinces 2005 (2) SA 117 (CC) para 23.
13 Interim Constitution Act 200 of 1993, s 101(5): ‘The Appellate Division shall have no jurisdiction to adjudicate any
matter within the jurisdiction of the Constitutional Court.’
14 Western Areas Ltd v The State 98/03, unreported judgment dated 31 March 2005, para 9, per Howie P (rejecting the
contention that the conferral in s 168(3) of jurisdiction ‘to decide appeals in any matter’ renders formerly non-appealable
matters appealable).
15 NEHAWU v UCT 2003 (3) SA 1 (CC) para 21.
10
that similar words in an enactment should be taken to carry the same meaning.16 It
thus follows from the CC’s reasoning in relation to its own appellate power, and this
court’s appellate power over the LAC in relation to constitutional issues, that
decisions of all other courts on both constitutional and non-constitutional matters are
subject to appeal to this court.
[16] We conclude that the Constitution vests this court with power to hear appeals
from the LAC in both constitutional and non-constitutional matters, and that the
provisions of the LRA that confer fi nal appellate power on the LAC must be read
subject to the appellate hierarchy created by the Constitution itself. This follows from
the subordination to the Constitution that the LRA itself mandates. It does not entail
that any provisions of the LRA are unconstitutional any more than the recognition of
the appellate jurisdiction of the CC and of this court in constitutional matters required
a finding of unconstitutionality.
[17] This conclusion conforms with the reasoning in Chevron Engineering (Pty) Ltd
v Nkambule.
17 The applicant there sought leave to appeal to this court against an
order of the LAC dismissing its appeal agains t a judgment of the industrial court
ordering it to reinstate dismissed workers . When the LRA came into effect on 11
November 1996 the dispute was already pending in the industrial court, which
functioned under the Labour Relations Act, 28 of 1956 (the old LRA). The LRA
16 Minister of the Interior v Machadodorp Investments (Pty) Ltd 1957 (2) SA 395 (A) 404D; More v Minister of
Cooperation and Development 1986 (1) SA 102 (A) 115C.
17 2003 (5) SA 206 (SCA); merits of appeal from LAC determined: 2004 (3) SA 495 (SCA).
11
repealed the old LRA, but the proceedings in the industrial court continued by virtue
of item 22 of Schedule 7 of the LRA. Sub-item (6) provides that despite any other
law ‘but subject to the Constitution no appeal will lie against any judgment or order’
of the Labour Appeal Court given on appeal from the industrial court.
[18] The question was whether, on a proper interpretation of item 22(6), an appeal
lay to this court from all decisions of the LAC given on appeal to it from the industrial
court. The applicant argued that item 22(6) should be read so as to be consistent
with the provisions of s 168(3) of the Constitution. Farlam JA held that ‘[i]f it were not
for the inclusion of the words “subject to the Constitution”, the wording would impel
one to the conclusion that the drafters did not intend to permit such appeals, which
would raise squarely the question whether the provision could withstand
constitutional scrutiny, given the clear wording of s 168(3) of the Constitution’ (para
15). Given the qualification, however, this court held that the applicant was entitled
to appeal against the LAC’s decision.
[19] The union rightly contended that the core of Chevron was the reasoning in
regard to s 168(3), with the result that there is no distinction between an appeal to
this court originating in the old industrial court and one emanating from the Labour
Court. We come later to the second question in Chevron, namely whether leave to
appeal is a prerequisite. For now we observ e that although the existence of a
12
procedure for lodging and prosecuting an appeal might indicate that a right to appeal
exists, its absence does not necessarily mean there can be no appeal.18
[20] Counsel for the Ministers contended t hat s 168 of the Constitution is merely
‘declaratory’; that the section as a whole describes this court’s composition, its
quorum and its place in the hierarchy, but c onfers no authority at all; that the
provision establishes this court’s structure but does not define its particular function
or jurisdiction, and that it simply confirms the outer limits of its jurisdiction and its
place as a final court of appeal except in constitutional matters. He did not flinch
from the implications of this reasoning – t hat this court would have jurisdiction to
entertain an appeal only if statute (most notably the Supreme Court Act)
19 confers it:
the phrase ‘in any matter’ in s 168(3) must be interpreted, he said, to mean ‘in any
matter in which national legislation conf ers jurisdiction on the Supreme Court of
Appeal. He invoked item 16 of Schedule 6 to the Constitution, dealing with
transitional arrangements, in terms of which when the Constitution came into effect
this court continued ‘to function and to exercise jurisdiction in terms of the legislation
applicable to it’. He cross-linked this to s 171 of the Constitution, which provides that
‘all courts function in terms of national l egislation’. His suggestion was that this
court’s constitutional jurisdiction derives not from s 168(3) – which, on his argument,
is declaratory only of statutorily derived powers – but from s 169, which confers on
the High Courts jurisdiction to decide ‘any constitutional matter’ except those
18 Cf S v Botha 2002 (1) SACR 222 (SCA); S v Viljoen 2002 (2) SACR 550 (SCA) para 26.
13
reserved for the CC (s 169(a)(i)). The upshot of the argument was that this court
exercises constitutional jurisdiction through the Supreme Court Act, which gives it
jurisdiction to decide appeals from judgments or orders of the High Court (s 21).
[21] But this is far too convoluted. And it does the clarity of the constitutional
language no justice. It ignores the plain meaning and structure of the provisions that
create appellate court powers, and overlooks the clear difference in phraseology
between the opening provisions of s 168(3) – which is unqualified – and that of s
168(3)(c) (which provides that apart from appeals and issues connected with
appeals, this court may decide ‘any matter that may be referred to it in
circumstances defined by an Act of Parliament’). It does not take into account that
item 16(1) of Schedule 6 to the Constitution is made ‘subject to consistency with the
Constitution’. If s 168(3) of the Constitution confers jurisdiction on this court, the item
cannot remove it. Section 166 of t he Constitution recognises other courts
‘established or recognised in terms of an Act of Parliament’. Item 16(1) of Schedule
6 was therefore necessary to ensure their continued functioning.
[22] And the contention that the conferral of appellate jurisdiction ‘in any matter’
must mean ‘in any matter in which national legislation grants jurisdiction’ gives no
interpretative weight to the fact that the very next provision, s 169, expressly
19 Act 59 of 1959.
14
subjects the constitutional and ordinary jurisdiction of the High Courts to exception
by Act of Parliament,20 whereas s 168 contains no such reservation.
[23] It is true that in Moch v Nedtravel (Pty) Ltd t/a American Express Travel
Service,21 Hefer JA said that the jurisdiction of the Appellate Division ‘derives from
the Supreme Court Act and other statutes’. This conformed with the interim
Constitution, which was then in force.
22 This court does not have original jurisdiction:
its jurisdiction derives from the Constitution.23 It is also correct that at common law a
court has no automatic jurisdiction to hear an appeal from another court: ‘An appeal
can only lie by virtue of some statutory provision.’24 Yet Chapter 8 of the Constitution
superseded both the common law and the int erim Constitution. It subsumed the
common law powers of this court, and not only conferred jurisdiction in constitutional
matters on it,25 but constituted it the highest court of appeal in all matters except
constitutional matters.26 It did so in unqualified terms, and those terms are now the
20 Constitution s 169: ‘A High Court may decide –
(a) any constitutional matter except a matter that –
(i) only the Constitutional Court may decide; or
(ii) is assigned by an Act of Parliament to anot her court of a status similar to a High Court; and
(b) any other matter not assigned to another court by an Act of Parliament.’
21 1996 (3) SA 1 (A).
22 Interim Constitution s 101(2): ‘Subject to this Constitution, the Supreme Court [which then included the Appellate
Division] shall have the jurisdiction, including the inherent jurisdiction, vested in the Supreme Court immediately before
the commencement of this Constitution, and any further jurisdiction conferred upon it by this Constitution or by other
law.’
23 Pharmaceutical Society of South Africa v Minister of Health [2005] 1 All SA 326 (SCA) para 19, per Harms JA.
24 Minister of Labour v Building Workers’ Industrial Union 1939 AD 328 at 330, per Stratford CJ, applied in S v
Pennington 1997 (4) SA 1076 (CC) para 20 (pointing out, by contrast, that the CC was established under the interim
Constitution and its authority as a court recognised and reaffirmed by the 1996 Constitution).
25 S v Pennington 1997 (4) SA 1076 (CC) para 8, per Chaskalson P: ‘This was changed by the 1996 Constitution which
gave the Supreme Court of Appeal jurisdiction to decide appeals in respect of any matter.’
26 Compare S v Basson 2005 (1) SA 171 (CC) paras 103-105, per Chaskalson CJ (s 168 provides the legal framework
within which the powers of the SCA must be determined: ‘B asically, subject to the provisions of the Constitution, it
adopts and continues the legal framework that existed before the interim Constitution was adopted’).
15
source of this court’s jurisdiction.27 They must, we consider, be given their full effect
in interpreting the provisions of the LRA.
[24] As pointed out earlier, s 166 of the C onstitution lists the courts comprising the
Republic’s judicial system. It says that those courts ‘are’:
(a) the Constitutional Court;
(b) the Supreme Court of Appeal;
(c) the High Courts, including any high court of appeal that may be established by an Act of
Parliament to hear appeals from High Courts;
(d) the Magistrates’ Courts; and
(e) any other court established or recognised in terms of an Act of Parliament, including any
court of a status similar to either the High Courts or the Magistrates’ Courts.
The argument that final appellate power can be vested in a court other than this
court (subject only to the CC) requires that s 166(b) be read thus: ‘The Supreme
Court of Appeal, or any similar court of appeal that may be established by an Act of
Parliament’. This encrustation on the clear f orm and wording of s 166 is neither
possible nor necessary. 28 The constitutional typology of final appellate courts is
exhaustive. It does not envisage other appellate courts with authority equivalent to
that of this court or of the CC.
27 S v Basson 2005 (1) SA 171 (CC) paras 109, per Chaskalson CJ (SCA has no jurisdiction to hear an appeal against a decision of
another court unless conferred on it by the Constitution or by statute).
28 Rennie NO v Gordon NO 1988 (1) SA 1 (A) 22F, adopted in Bernstein v Bester 1996 (2) SA 751 (CC) para 105: Words cannot by
implication be read into a statute – or the Constitution – unless the implication is necessary in the sense that without it effect cannot be
given to the enactment as it stands.
16
[25] Read in the light of the Constitution, as it must be, s 167(3) of the LRA thus
merely describes an equivalence of ‘authority, inherent powers and standing’
between this court and the LAC in relation to matters within their respective
jurisdictions, without depriving this court of its role and function as ‘the highest court
of appeal except in constitutional matters’, having power to ‘decide appeals in any
matter’, including both constitutional and non-constitutional appeals from the LAC.
[26] The implications of the contrary conclusion must be emphasised. If, despite
the provisions of s 168(3), the LRA creates a final court of appeal in labour-related
matters to the exclusion of this court’s appellate powers, it would have to follow that
the legislature could create final courts of appeal also in other areas –crime, welfare,
environment, land, personal injuries, contract, commerce, landlord and tenant,
company law, family law and administrative matters. The list is theoretically endless.
The entire jurisdiction of this court could on this approach be assigned piecemeal or
wholly to one or more other appellate tribunals of similar authority.
[27] We do not think that the Constitution envisages this. Final appellate courts
other than this court and the CC are not contemplated in the court hierarchy the
Constitution itemises. ‘Our constitutional democracy envisages the development of a
coherent system of law that is shaped by the Constitution’.
29 That includes a
coherent appellate structure, laid out in the Constitution, in which this court takes its
29 National Education, Health and Allied Workers Union v University of Cape Town 2003 (3) SA 1 (CC) para 16, per
Ngcobo J.
17
place as the court of appeal with authority that is final in all matters, barring
constitutional matters.30
[28] What distinguishes the ambit of th is court’s powers from those of the CC,
which has both original and appellate jurisdiction,31 is that this court may decide only
appeals (s 168(3)(a)). The precondition to the exercise of this court’s jurisdiction is
thus a right of appeal. It was suggested in argument that if legislation cannot validly
preclude a general right of appeal from the LAC to this court, it must follow that
legislation cannot preclude appeals in any matter. Examples cited included
judgments of the small claims courts,
32 and arbitration awards, 33 in both of which
appeals are expressly barred. It was suggested that the conclusion reached above
would entail that appeals must lie as of right to this court also in such matters.
[29] But this is to confuse the existence of appellate jurisdiction with the question
whether a right of appeal exists at all. The scope of institutional authority is one
thing; the question whether and under what c onditions it can be invoked is quite
another. Differently stated, a general right of appeal from all other appellate bodies
to this court does not entail that every determination of a justiciable right must be
appealable.
30 Compare the judgment of Chaskalson CJ in S v Basson 2005 (1) SA 171 (CC) paras 90 and 103.
31 Constitution s 167(6); S v Pennington 1997 (4) SA 1076 (CC) para 11.
32 Small Claims Courts Act, 61 of 1984 s 45: ‘A judgment or order of a court shall be final and no appeal shall lie from it.’
33 Arbitration Act, 42 of 1965 s 28: ‘Unless the arbitration agreement provides otherwise, an award shall, subject to the
provisions of this Act, be final and not subject to appeal and each party to the reference shall abide by and comply with
the award in accordance with its terms.’
18
[30] The access to courts provision in the Bill of Rights (s 34) provides that –
‘Everyone has the right to have any dispute that can be resolved by the application of law
decided in a fair public hearing before a court or, where appropriate, another independent and
impartial tribunal or forum.’
[31] Counsel for the company submitted t hat this right must in principle include
access to all courts of appeal from the court or forum of first instance. We do not
agree. The provision does not explicitly include a right of appeal.34 In this it stands in
pronounced contrast to s 35(3)(o), which expressly entrenches within an accused’s
person’s right of fair trial a right of appeal or review to a higher court.
35 We do not
consider that s 34 by necessary implication entails the same right; 36 and even if it
did, it would be capable of reasonable and justifiable limitation:37 all such decisions
are in any event subject to the principle of legality, and thus to constitutional review.
The suggestion that the assertion by this court of a general appellate jurisdiction
entails the appealability of all justiciable rights can therefore not be maintained.
34 Pharmaceutical Society of South Africa v Minister of Health [2005] 1 All SA 326 (SCA) para 30, per Harms JA.
35 Bill of Rights s 35(3): ‘Every accused person has the right to a fair trial, which includes the right – … (o) of appeal to,
or review by, a higher court.’
36 See Besserglik v Minister of Trade, Industry and Tourism 1996 (4) SA 335 (CC) para 10, per O’Regan J for the court
(though not necessary for decision, ‘some doubt’ expresse d as to whether comparable provision under interim
Constitution necessarily entailed a right of appeal.
37 Bill of Rights s 36.
19
[32] The question before us is in any event not whether all constitutionally
recognised rights are intrinsically appealable, but whether a provision that purports
to restrict a litigant’s right of appeal to a hierarchy of specialised courts, to the
exclusion of this court, complies with the Constitution. We find only that once
appellate jurisdiction falls to be exercised, this court is empowered to exercise it
finally (apart from the CC), since final appellate tribunals with authority similar to this
court are not envisaged in the Constitution. We add only the obvious corollary: that
the conferral on this court of general appellate power does not render all judgments
and orders immediately appealable.
38
[33] It follows that this court has jurisd iction to decide appeals from the LAC also in
matters within the exclusive jurisdiction of the Labour Court. This conclusion makes
it unnecessary to consider whether the case the union seeks to bring raises
constitutional issues.
Is leave to appeal to this court necessary?
[34] The second question in Chevron was whether the applicant required leave to
appeal. Farlam JA pointed out that ‘leave is not a prerequisite in the Constitution or
the [LRA] and there is also no provision in the Supreme Court Act 59 of 1959 which
requires such leave: it would be different if the LAC were a division of the High Court
38 Western Areas Ltd v The State 98/03, unreported judgment dated 31 March 2005, paras 6-17, per Howie P
20
because ss 20 and 21 of Act 59 of 1959 would then apply’. 39 The conclusion
reached in Chevron was that the applicant neither needed nor was entitled to an
order granting it leave to appeal against the LAC judgment. That conclusion, in its
terms, was clearly right. But we now face a different question: whether, in the light of
our conclusion that all matters are appealable from the LAC to this court, we should
not develop a requirement that leave to appeal must be obtained; and, if so, on what
terms.
[35] Strong considerations suggest that the path from the LAC to this court should
not be untrammelled. The first is the benefit of institutional expertise. The second is
the imperative of expedition. The third (and only last in order of importance) is the
workload of this court, which is already such as to burden its members very
considerably, without a new inundation of cases. Nothing more need be said about
this consideration,
40 and we turn to the first two.
[36] In the LAC the legislature created a specialist tribunal, functioning in a
specialised area of law. Their special expertise, as Ngcobo J has pointed out, itself
conduces to expedition:
‘The LAC and the Labour Court were established by Parliament specifically to administer the
LRA They are charged with the responsibility for overseeing the ongoing interpretation and
application of the LRA and the development of labour relations policy and precedent. Through their
39 Chevron Engineering (Pty) Ltd v Nkambule 2003 (5) SA 206 (SCA), para 19.
40 In 2004, this court heard and disposed of 200 appeals and 434 petitions for leave to appeal.
21
skills and experience, Judges of the LAC and the Labour Court accumulate the expertise which
enables them to resolve labour disputes speedily.
By their very nature labour disputes must be resolved expeditiously and be brought to finality
so that the parties can organise their affairs a ccordingly. They affect our economy and labour
peace. It is in the public interest that labour disputes be resolved speedily by experts appointed for
that purpose.’41
[37] These considerations led the CC to conclude that it would be ‘slow to hear
appeals from the LAC unless they raise important issues of principle’. They impel us
to the same conclusion. And the Constitution provides for regulation to that end. In
the case of the CC, the Constitution requi res that national legislation must grant
direct access to it only ‘when it is in the interests of justice and with the leave of the
Constitutional Court’ (s 167(6)). In the case of this court, the Constitution does not
require that the legislature must enact access-regulating measures. That is no doubt
because, while the CC was a new court, the Constitution’s provisions concerning
this court have ‘a significant background history’
42 featuring legislation that already
regulated appeals from the High Court. But, as Chevron recognised, that legislation
could not take account of specialist intermediate appellate tribunals such as the LAC
because they did not then exist.
41 National Education, Health and Allied Workers Union v University of Cape Town 2003 (3) SA 1 (CC) paras 30-31, re-
emphasised in Dudley v City of Cape Town (2004) 25 ILJ 991 (CC) para 9.
42 Western Areas Ltd v The State 98/03, unreported judgment dated 31 March 2005, para 9, per Howie P (read with paras
10-17).
22
[38] Despite the novelty of the problem, the Constitution does not leave us bereft of
solutions. That seems to us to lie in s 173, which provides that –
‘The Constitutional Court, the Supreme Court of Appeal and the High Courts have the inherent
power to protect and regulate t heir own process, and to develop the common law, taking into
account the interests of justice’.
[39] In S v Pennington,43 the CC confronted a not wholly dissimilar problem. The
legislature had not yet enacted the legislation required to fulfil the direct access-
regulating requirement. Did that mean that litigants were entitled without more to
bring constitutional matters before the CC? No, said Chaskalson P. Section 167(6)
made it clear on what terms the legislature was required to regulate access. But until
the legislation was enacted, s 173 gav e the CC the inherent power to regulate
access to it along the lines the Constitution envisaged. The fact that the litigants had
already had the benefit of an appeal to the Supreme Court of Appeal was relevant to
determining the breadth of that access.
44
[40] The same principles apply here. Al though the Constitution spells out no
principles on which access to this court should be regulated, we consider that this
court’s inherent power to regulate its own process, ‘taking into account the interests
of justice’, empower it to lay down the requirement that prospective appellants from
the LAC apply for special leave to appeal. While it is true that this court’s inherent
power to protect and regulate its own process is not unlimited – it does not, for
43 1997 (4) SA 1076 (CC), paras 11-28, per Chaskalson P on behalf of the court.
44 S v Pennington above para 24.
23
instance, ‘extend to the assumption of jurisdiction not conferred upon it by statute’45
– the inherent regulatory power the Constitution confers is broad and unqualified.
The CC has recently emphasised the ambit of this power, and the importance of
interpreting it so as to enhance ‘the SC A’s autonomous regulations of its own
process’.
46 We consider it broad enough to deal with the situation here.
[41] As in Pennington,47 leave to appeal from the LAC is necessary to protect the
process of this court against abuse by appeals from the LAC that have no merit, and
it is in the interests of justice that the requirement of special leave be imposed, for if
appeals were allowed without trammel, the expeditious resolution of labour disputes
would be unconscionably delayed, and the justified objects of the LRA impeded.
[42] We therefore hold, exercising this court’s constitutional power to protect and
regulate its own process, that applications for leave to appeal from the LAC must be
on petition to this court, in accordance with the existing application procedure from
the High Court.
48 We hold further that applicants must show not merely that the
appeal has reasonable prospects of success, but that there are special
considerations why, having already had an appeal before a specialist tribunal, there
should be a further appeal to this court.
49
45 Moch v Nedtravel(Pty) Ltd t/a American Express Travel Service 1996 3 SA 1 (A) 7F.
46 Mabaso v Law Society, Northern Provinces 2005 (2) SA 117 (CC) para 23.
47 1997 (4) SA 1076 (CC) para 26.
48 Supreme Court Act 59 of 1959 ss 20 and 21.
49 Explained by Corbett CJ in Westinghouse Brake & Equipment (Pty) Ltd v Bilger Engineering (Pty) Ltd 1986 (2) SA
555 (A) 560F-565E.
24
[43] The procedures for applying for leave to appeal, and the factors relevant to
obtaining special leave, are well-established. They are set out in the Supreme Court
Act 59 of 1959 and in the decisions of this court, including Westinghouse Brake &
Equipment (Pty) Ltd v Bilger Engineering (Pty) Ltd .50 The criterion for grant of
special leave to appeal is not merely t hat there is a reasonable prospect that the
decision of the LAC will be reversed – but whether the applicants have established
‘some additional factor or criterion’.51 One is ‘[w]here the matter, though depending
mainly on factual issues, is of very great importance to the parties or of great public
importance’.
52 No doubt every appeal is of great importance to one or both parties,
but this court must be satisfied, notwithstanding that there has already been an
appeal to a specialist tribunal, and that the public interest demands that labour
disputes be resolved speedily, that the matter is objectively of such importance to
the parties or the public that special leave should be granted. We emphasise that
the fact that applicants have already enjoyed a full appeal before the LAC will
normally weigh heavily against the grant of leave. And the demands of expedition in
the labour field will add further weight to that.
[44] As also in Pennington,
53 the petition for special leave in accordance with the
existing High Court procedure will require this c ourt to consider the merits of the
50 Above pages 564H-565E.
51 Westinghouse 1986 (2) SA 555 (A) 561E-F 563E.
52 Westinghouse 1986 (2) SA 555 (A) 565B.
53 1997 (4) SA 1076 (CC) para 27.
25
appeal. Considering the petition is therefore itself an exercise of the appellate
jurisdiction vested in this court.54
[45] In this case we have a full application for leave to appeal, which was referred
for oral argument on the merits together with the full record of the proceedings in the
courts below. We can therefore now consider whether leave should be granted on
the basis of the above principles.
The merits of the application for leave to appeal: should leave be granted?
[46] The first question is whether the union has reasonable prospects of success. If
not, we need not consider whether it has established the ‘additional factors’ required
for special leave.
[47] With this in mind, we consider t he facts. These are comprehensively set out in
the judgment of the LAC.
55 A brief summary will place the issues in perspective. In
mid-2000 a firm of consultants the company had appointed produced a report
reviewing the company’s production methods and suggesting ways of increasing
productivity. Meetings took place between management and shopstewards. The
company wished to introduce operational changes that necessitated alterations to
the workers’ terms and conditions of employment. Among these was a radical
change in the shift system and the withdraw al of a transport allowance. The
company hoped to negotiate a collective agreement on the proposed changes and
so tried to convince the workers t hat the changes would ensure an increase in
54 Compare S v Rens 1996 (1) SA 1218 (CC); S v Steyn 2001 (1) SA 1146 (CC).
26
productivity, resulting in its continued viability and consequently enhanced job
security. But no agreement was reached. The proposed changes in the shift system
and the withdrawal of the transport allowance were a particular sticking point.
[48] At a meeting in late Sept ember 2000 management announced that workers
who were prepared to accept the intended changes would be retained in their
positions, while those who refused ‘may be retrenched’. In early October the
company distributed notices informing the affected workers of their impending
retrenchment on 13 October 2000. The workers rejected the notices. On 18 October
2000 the company issued letters of dismissal. The union responded with an urgent
application in the Labour Court. The basis for the application, which the Labour
Court upheld, was that the intended dismissals were sought to be effected to compel
them to agree to the proposed changes to their terms and conditions of
employment, contrary to the provisions of s 187(1)(c) of the LRA:
‘A dismissal is automatically unfair if the employer, in dismissing the employee, acts
contrary to section 5 [which protects those exercising union rights] or, if the reason for the
dismissal is –
(a) . . .
(b) . . .
(c) to compel the employee to accept a demand in respect of any matter of mutual
interest between the employer and employee;
. . . .’
55 Fry’s Metals (Pty) Ltd v National Union of Metalworkers of SA (2003) 24 ILJ 133 (LAC) paras 3-17.
27
[49] After management’s September lett er, a further meeting was held on 10
October 2000, where the discussion centred on the change to the proposed two-
shift system. Still no agreement could be reached. The last meeting was held on 17
October 2000. The letters of dismissal issued to the workers on 18 October 2000 set
the date of dismissal at 20 October 2000.
[50] In the founding affidavit (to which Mr Johannes Maboya, a shopsteward,
deposed) the union alleges that ‘the proposed dismissals would be unfair’; that the
company ‘is proposing to dismiss the [workers] as a result of their failure to agree to
changes to their terms and conditions of employment’; that this ‘constitutes a step to
compel a demand, and if implemented such dismissals would be automatically unfair
dismissals in terms of s 187(1)(a)’. Mr Gideon Viljoen, the company’s human
resources manager, responded in the answering affidavit that it needed to introduce
a two shift system for economic (higher productivity), health and environmental
reasons. He denied that the retrenchments were ‘a step to compel a demand’,
insisting that the proposed change in the shift system was an operational
requirement. The heading to the first paragraph of the letter of retrenchment reads:
‘NOTICE TO RETRENCHED EMPLOYEES
Because you have rejected the new two-sh ift system operationally required by the
company, you have been given notice of your retrenchment and your employment will
terminate on 20 October 2000.’
In reply, the union states that it disputed that the company had established
28
‘that a two-shift system will definitely reduce lead-blood concentration levels or
that productivity will improve’, and that ‘the dispute over the failure to reach
agreement on the new shift system and associated matters is a dispute over a
matter of mutual interest which ought to be dealt with by the dispute procedure
governing such dispute’.
[51] The complexity in the matter stem s from the fact that the LRA permits
employers to make changes justified by ‘operational requirements’ (ss 67, 188, 189).
These are defined as requirements ‘based on the economic, technological,
structural or similar needs of an employer’ (s 213). Though it requires the employer
to prove fairness, the statute permits dismissals based not only on an employee’s
conduct or capacity, but also on the employer’s ‘operational requirements’ (s
188(1)(a)(ii)). Even during a protected strike , an employer is not precluded from
fairly dismissing an employee for an operational requirements reason (s 67(5)).
Thus the employer’s leeway.
[52] On the other hand, the statute is at pains to erect a system that scrupulously
protects and encourages collective bargaining between workers and employers, so
as to facilitate the conclusion of collective agreements, which are defined as written
agreements ‘concerning terms and conditions of employment or any other matter of
mutual interest’ (s 213). It is in this setting that s 187(1)(c) renders automatically
unfair dismissals whose reason is ‘to compel the employee to accept a demand in
respect of any matter of mutual interest between the employer and employee’. On
29
them it imposes significant procedural and other penalties, including the possibility
of interdictory relief, as the union obtained in this case.
[53] In an influential article , Professor Clive Thompson
56 argued that dismissal can
never be a permissible form of leverage in the bargaining process. An operational
requirements dismissal falls outside the area of collective bargaining, since it
involves a claim that the employer has the right to dismiss the employee. That can
never occur, he suggested, in disputes about ‘the wage-work bargain’: it is
permissible only in disputes over business restructuring where viability is at issue.
The difficulty his argument sought to reconcile is not only that the two categories of
dispute manifestly overlap, since wage-work issues may ultimately affect viability,
but that ‘viability’ is itself a imprecise concept. When, therefore, will it be permissible
for the employer to invoke operational requirements to dismiss employees? He
suggested a flexible court-scrutinised test: such a dismissal would pass muster if the
employer could show ‘a demonstrably sensible business analysis that has been
probed in the consultative process, is not unreasonable in context nor
disproportionate in the trade-off between gains and hardships’.
57
[54] Prof Thompson acknowledges that ‘the world of work and business defies
sharp categorisation’. To deal with the apparently over-lapping categories the LRA
56 ‘Bargaining, Business Restructuring and the Operational Requirements Dismissal’ (1999) 20 ILJ 755.
30
creates, he suggested that the courts would have to determine on a case-by-case
basis when a employer/employee disput e had permissibly ‘migrated’ from the
bargaining domain (where matters of mutual interest cannot legitimately trigger
dismissals) to the ‘legal domain’ (where the employer is permitted to dismiss for
operational reasons). The core difficulty with this argument is that the dichotomy
between matters of mutual interest and questions of ‘right’ do not in our view form
the basis of the collective bargaining struc ture that the statute has adopted. The
unavoidable complexities that arise from the supposed ‘migration’ of issues from
matters of mutual interest to matters of ‘right’ demonstrate in our view that the
dichotomy does not form the basis of the statutory structure, and s 187(1)(c) cannot,
accordingly, be interpreted as if the legislation proceeds from that premise.
[55] In the LAC, Zondo JP implicitly – and in our view correctly – rejected the
‘migration’ approach. He considered that the construction of s 187(1)(c) should start
with the meaning of ‘dismissal’ as it appears in s 186(1)(a). Section 186(1) defines
‘dismissal’ as meaning, inter alia, that
‘(a) an employer has terminated a contract of employment with or without notice’.
The learned Judge-President concluded that there was a difference between a
dismissal as defined in s 186(1) and a dism issal as contemplated by s 187(1)(c).
The two categories do not overlap. A s 187(1)(c) dismissal must be effected ‘for the
57 (1999) 20 ILJ 755 at 770.
31
specific purpose given in s 187(1)(c) and that purpose is absent in an ordinary
dismissal such as is defined in s 186(1)(a)’. Zondo JP expanded (para 31):
‘… there is a distincti on between a dismissal for a reason based on operational
requirements and a dismissal the purpose of which is to compel an employee or employees
to accept a demand in respect of a matter of mutual interest between employer and
employee. The distinction relates to whether the dismissal is effected in order to compel the
employees to agree to the empl oyer’s demand which would result in the dismissal being
withdrawn and the employees being retained if t hey accept the demand or whether it is
effected finally so that, in a case such as this one, the employer may replace the employees
permanently with employees who are prepared to work under the terms and conditions to
meet the employer’s requirements.’
[56] The LAC’s solution to the conundrum of the statutory concepts was thus to
assign a distinctive meaning to ‘dismissal’ in s 187(1)(c), and then to restrict this
category of automatically unfair dismissals to those effected for the purpose of
inducing employees to change their minds regarding the employer’s demand. On
this approach, only conditional dismissals can fall under s 187(1)(c), and it is this
that distinguishes them from the broader category of dismissals where the employer
– irreversibly – ‘has terminated’ the employment contract. Dismissals intended to be
and operating as final – not, in other words, reversible on acceptance of the demand
– can thus never have as their reason ‘to compel the employee to accept’ that
demand. They will therefore not be automatically unfair. In such cases, the only
factual inquiry confronting a court is the employer’s reason for effecting the
32
dismissal: once compulsion to accept the disputed demand (with ensuing reversal of
the dismissal) is excluded, no further inquiry into the nature or categorisation of the
demand is required.
[57] Mr Tip for the union subjected the approach of the LAC to careful criticism,
urging us to find that the LAC had misinterpreted s 187(1)(c). He sought to interpret
s 187(1)(c) within the context of a collective bargaining structure premised on the
dichotomy we have described and which we have rejected. He proceeded from the
premise that the structure of the statute requires disputes of mutual interest to
‘migrate’ to the ‘rights’ sphere. He submitted further that because of the ‘complicated
interface’ characterising this case, it was insufficient to embark on an examination
solely of whether the company intended the dismissals as final. Indeed, he argued, it
had never been the union’s case merely that the dismissals themselves were
intended to induce the workers to change their minds. Its case was that the threat of
dismissal during collective bargaining and up to implementation was calculated to
force the workers to accept the company’s demands: correspondingly, the
dismissals, if implemented, would have been because the employees had not
changed their minds.
[58] Of central significance, Mr Tip therefore contended, was an enquiry into
whether the dispute on the proposed change to the shift system was or was not a
‘matter of mutual interest’. He submitted that a change in a shift system is a material
change in conditions of employment and once accepted it becomes a term of
33
employment and an enforceable right. Where an employer seeks to change its
position, this must be pursued in collective bargaining. It was in this context that he
invoked the concept of ‘migration’ – had it been shown that the dispute had
‘migrated’ from the ‘matters of mutual interest’ category (which must be resolved by
collective bargaining) to the ‘operational requirements’ category (which entitles the
employer to dismiss); and if so at what stage? The company, he said, had not been
able to show that the dispute had ‘m igrated’, and the dismissals were thus
prohibited.
[59] In our view neither s 187(1)(c) nor the collective bargaining structure of the
statute as a whole contemplates the ‘mi gration’ of disputes from one part of the
LRA’s taxonomy to another. Nor can we a ccept the union’s contention that the
category of dismissals protected by s 187(1)(c) must be more expansively construed
than the LAC found.
[60] The conceptual impasse that the conc ept of ‘migration’ of disputes creates
drives us to the solution the LAC embraced. For the reasons fully set out in the LAC
judgment, it seems clear to us that the particular legislative history of the concept of
dismissals designed to induce agreement to an employer’s demand illuminates the
distinctive nature of the protection accorded to those dismissals that are truly
designed to make employees change their minds in a dispute with an employer on
matters of mutual interest.
58 Only they are prohibited as automatically unfair. If the
58 (2003) 24 ILJ 133 (LAC) paras 24-25.
34
dismissal lacks the proscribed statutory purpose – and we agree with the LAC that
‘reason’ in s 187 must in the context of sub-para (c) mean the same as ‘purpose’ –
the dismissal is not automatically unfai r, and the sole inquiry is whether the
employer can establish under s 188 that the dismissal was based on its operational
requirements.
[61] The cogent reasoning and exposition of the LAC disposes of the legal
contentions raised; but the union sought to attack the LAC’s finding on another
ground as well. This concerns the LAC’s assessment of what facts were before it. As
will be recalled, the LAC found that the union had failed to establish that the
dismissals were not based on the com pany’s operational requirements. That the
company initially sought to have the issue of the proposed shift change negotiated
and only later withdrew it from the table on the basis that it was not a matter of
mutual interest but an operational requirement made no difference.
[62] Zondo JP observed (para 35) that in the founding affidavit the union did not
substantiate its averment that the dismissals constituted ‘a step to compel a
demand, and, if implemented such dismissa ls would be automatically unfair’. The
answering affidavit categorically denied that the dismissals constituted a step to
compel a demand and asserted that they were necessitated by economic, health
and environmental factors. The union’s replying affidavit merely disputed that the
company had established that a two-shift system would improve productivity. This
impelled the learned Judge President to conclude that there was a material dispute
35
of fact before the Labour Court, which had wrongly failed to apply the well-known
formula for motion court fact determination in Plascon-Evans Paints Ltd v Van
Riebeeck Paints (Pty) Ltd.59
[63] Before us the union contended that the LAC inappropriately elevated a denial
asserted as a conclusion to a dispute of fact that could be resolved only by oral
evidence, and that the true difference between the parties is a matter of the correct
construction of the facts: these, it urged, were almost entirely common cause when
regard is had to the history of the parties’ dealings. The union submitted further that
the matter could not be determined on the basis of the ‘mere say-so’ of the parties,
the test being objective in the light of all the relevant facts and circumstances.
[64] We emphasise that it will be seldom that the LAC’s approach to the resolution
of factual issues will be sufficient to cons titute the ‘special circumstances’ that we
have laid down are required for leave to appeal, bearing in mind the experience the
LAC has of the setting in which the oft en complex factual inquiry falls to be
assessed. We see no reason in this case to interfere with the LAC’s approach in
arriving at its factual findings or with the findings themselves.
[65] There are thus no proper grounds for allowing the union to appeal. We make
the following order:
(a) The application for condonation for the late filing of the application for
leave to appeal is granted. The applicants are ordered to pay the costs.
59 1984 (3) SA 623 (A) at 634H-635C, per Corbett CJ.
36
(b) The application for special leave to appeal is dismissed with costs.
_________________
MPATI DP
CAMERON JA
CONCUR
:
NUGENT JA
CONRADIE JA
COMRIE AJA