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[2003] ZACC 7
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Xinwa and Others v Volkswagen of South Africa (Pty) Ltd (CCT3/03) [2003] ZACC 7; 2003 (6) BCLR 575; 2003 (4) SA 390 (CC); [2003] 5 BLLR 409 (CC); (2003) 24 ILJ 1077 (CC) (4 April 2003)
CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 3/03
XINWA and 1335
OTHERS Applicants
versus
VOLKSWAGEN OF SOUTH AFRICA (PTY)
LTD Respondent
Decided on : 4 April 2003
JUDGMENT
THE COURT:
[1]
The applicants are some 1336
individuals who are the former employees of Volkswagen (Pty) Ltd (Volkswagen),
the respondent. They
were dismissed by Volkswagen on 3 February 2000 following
their participation in a strike action. At all material times, the applicants
were members of the National Union of Mineworkers of South Africa (NUMSA), a
trade union which was the sole bargaining agent for
hourly paid workers at the
Volkswagen workplace. The applicants are seeking an order for (a) compensation
and (b) re-employment
in terms of the provisions of the Labour Relations Act of
1995
[1]
(LRA) and, as the supporting
affidavit indicates, an order declaring that their dismissal was procedurally
unfair.
[2]
The factual background to
this application has been fully set out in the judgments of the Labour Appeal
Court (LAC)
[2]
and the Labour
Court
[3]
as well as in the award
issued by the Commissioner.
[4]
It
need not be repeated here. Only those facts that matter for the purposes of
judgment will be repeated. It is apparent from
the two judgments and the
Commission for Conciliation, Mediation and Arbitration (CCMA) award that the
facts that give rise to the
present application were common cause. In their
application to this Court, the applicants do not suggest
otherwise.
[3]
The present application has
its genesis in an internal NUMSA dispute concerning shop stewards at the
workplace of Volkswagen. That
dispute led to the suspension of some 13 shop
stewards by NUMSA. On 20 January 2000, workers who were the supporters of the
suspended
shop stewards, including the applicants, embarked upon a strike
action. The intention of the workers was to persist in that strike
until NUMSA
lifted the suspension of the shop stewards. Attempts to resolve the dispute
with the union and the representatives of
the applicants proved fruitless. Both
management and NUMSA took the position that the strike was illegal and
unprotected. The intervention
by the Congress of South African Trade Unions, a
federation to which NUMSA is affiliated, calling upon the workers to return to
work
evoked little or no response. The workers stood fast on their demand that
the suspension of the shop stewards had to be lifted before
they would return to
work.
[4]
Various meetings were held
between Volkswagen and NUMSA, and between Volkswagen and the representatives of
the striking workers.
At these meetings management warned that workers who
continued to participate in the strike would face disciplinary action, which
included dismissal. On 21 January 2000, Volkswagen closed down the plant and
issued notices to all workers leaving the plant, warning
the workers once again
that their strike was illegal and that continued participation in it would
attract serious consequences, which
might include dismissal. The notice called
upon the workers to resume work on 24 January 2000. As the workers entered the
plant
on 24 January 2000, they were issued with notices requiring them to return
to their workstations or face possible dismissal. They
did not resume their
duties. When the workers did not heed that warning, management decided to close
down the plant in its entirety
until further
notice.
[5]
On 28 January 2000, NUMSA
and the management of Volkswagen concluded an agreement to end the strike. They
agreed that Volkswagen
would reopen the plant on 31 January and that if the
workers persisted in the strike, management would take disciplinary action,
which would include dismissal. In addition, Volkswagen informed NUMSA that if
the workers did not comply with the agreement it would
issue an ultimatum. This
agreement was widely publicised in notices, electronic media, radio and print
media. On 31 January 2000
a substantial number of workers were still absent
from work. A notice was distributed in various languages through the media and
some 50,000 copies of the notice were distributed in the area. The notice
called upon the workers to return to work by 3 February
or face dismissal. On 3
February, a substantial number of workers returned to work but the applicants
did not. They were accordingly
dismissed. A dispute arose between the
applicants and Volkswagen as to whether the dismissal was
fair.
[6]
Attempts by the CCMA to
resolve the dispute were unsuccessful. Following an agreement between the
applicants and Volkswagen, the
dispute was referred for arbitration. The senior
commissioner who arbitrated the dispute found that the dismissal of the
applicants
was substantively fair but procedurally unfair. He found that
Volkswagen had failed to comply with the
audi
alteram partem
principle (the
audi
principle) in that prior to the decision to
dismiss the applicants, there had been no invitation by Volkswagen “to
NUMSA or
for that matter, the striking workers or their representatives to
explain why their conduct should be tolerated, why an ultimatum
should not be
issued and why they should not be
dismissed.”
[5]
[7]
Thereupon, the Commissioner
ordered the reinstatement of the applicants but declined to do so
retrospectively. In granting that relief
the Commissioner took the view that
section 193(1)
[6]
of the LRA, does not
preclude an order for reinstatement or reemployment where the dismissal is only
procedurally unfair. The award
was promptly taken on review to the Labour Court
by Volkswagen. The applicants launched a counter-application for review
challenging
the Commissioner’s finding that their dismissal was
substantively fair.
[8]
The Labour Court upheld the
finding that the dismissal was substantively fair but procedurally unfair. The
scope of review by the
Labour Court is regulated by sections 145(1) and
(2)
[7]
of the LRA. In reviewing the
Commissioner’s award, the Labour Court held that although it could not
fault the procedure followed
by Volkswagen in dismissing the applicants, it
could not hold that the Commissioner’s decision in this respect
constituted
a reviewable misdirection within the terms of section 145. However,
it held that the Commissioner had misdirected himself in ordering
the
reinstatement of the workers as relief for the procedural unfairness. It held
that section 193 of the LRA does not permit the
reinstatement of workers whose
dismissal is procedurally, as opposed to substantively,
unfair.
[9]
On appeal, the LAC upheld
the finding that the dismissal was substantively fair but set aside the finding
that the dismissal was procedurally
unfair and replaced it with a finding that
the dismissal was procedurally fair. It found that both NUMSA and the
applicants were
given ample opportunity to make representations prior to the
decision to dismiss the applicants. It added that because the dismissal
had
been in accordance with the agreement to end the strike that was the end of the
applicants’ case. It concluded that the
Commissioner had misconceived the
nature of the enquiry in relation to the
audi
principle. But it went
further and considered the question whether reinstatement is a competent remedy
for a dismissal which is
procedurally unfair. It held that it was not and
concluded that in ordering reinstatement, the Commissioner had exceeded his
powers.
[10]
These motion proceedings
are a sequel.
[11]
We considered it
appropriate to deal with the matter at once in terms of rule
18(10)(b)
[8]
without waiting for the
opposition intimated by Volkswagen. We did so because in the first place, the
facts were not in dispute.
In the second place, the applicants said that they
had to sell their belongings to raise the fees for the appeal. They were left
without funds. They are indeed indigent. It is therefore clear that they would
not have been in a position to pay Volkswagen’s
costs. In these
circumstances, we considered it undesirable to require Volkswagen to incur any
further costs in this matter. Furthermore,
once we were satisfied that the
application was bound to fail, we considered it necessary to announce our
decision at once and bring
this matter to finality “so that the parties
can organise their affairs
accordingly.”
[9]
[12]
The present application is
not, on its face, an application for leave to appeal. It is an application for
an order declaring that
the dismissal of the applicants was procedurally unfair
and for an order of reinstatement and
compensation.
[13]
Pleadings prepared by
laypersons must be construed generously and in the light most favourable to the
litigant. Lay litigants should
not be held to the same standard of accuracy,
skill and precision in the presentation of their case required of lawyers. In
construing
such pleadings, regard must be had to the purpose of the pleading as
gathered not only from the content of the pleadings but also
from the context in
which the pleading is prepared. Form must give way to
substance.
[10]
While the
applicants’ notice of motion does not seek leave to appeal, what the
applicants are seeking is quite clear. They
are seeking to appeal against the
finding by the LAC that their dismissal was procedurally fair and the
consequential refusal to
reinstate them and to award them compensation. Their
application must therefore be construed as an application for leave to appeal
directly to this Court from the decision of the
LAC.
[11]
In addition, the
applicants are seeking condonation for the late filing of their application for
leave to appeal.
[14]
The only procedural problem
that remains in applicants’ way is their failure to obtain a certificate
under rule 18. No explanation
has been advanced as to why this was not done.
In the view we take of the matter, it is not necessary to deal with the
application
for condonation and the failure to obtain the rule 18
certificate.
[15]
The facts show that
management held meetings with the delegation of the striking workers and NUMSA,
separately, to try to end the
strike. At these meetings, management warned that
the strike was illegal and that those participating in it faced possible
dismissal.
Management resorted to the closure of its plant in an attempt to get
the workers to return to work. It required workers returning
to the plant to
resume their duties or face dismissal. This too did not work. The agreement
between NUMSA and management to end
the strike did not succeed in getting the
applicants back to work. Nor did the warning that those workers who did not
return to
work on 31 January would face disciplinary action which would include
dismissal. An ultimatum calling upon the workers to return
to work on 3
February 2000 and warning that failure to return to work would result in
dismissal did not succeed in getting the applicants
to return to work
either.
[16]
In the light of these
facts, the applicants have no prospect of persuading this Court that their
dismissal was procedurally unfair.
Having concluded that the dismissal was
procedurally fair, and in the absence of a challenge to the substantive fairness
of the
dismissal, it is not necessary to consider the question of the relief.
We express no opinion on whether section 193(1) precludes
the Labour Court or an
arbitrator from ordering reinstatement where the dismissal is unfair only
because the employer did not follow
a fair
procedure.
[17]
For these reasons, the
applicants have no prospects of success on the merits. In the circumstances, it
is not in the interests of
justice to grant the application for the condonation
of the late filing of the application for leave to
appeal.
[18]
In the event, the
application for leave to appeal is
dismissed.
Chaskalson CJ Langa
DCJ Ackermann J Goldstone J
Madala J Mokgoro J Moseneke
J Ngcobo J
O’Regan J Yacoob J
Applicants
in person.
For the Respondent: Bowman and Gilfillan Inc.,
Johannesburg
[1]
Act 66 of 1995.
[2]
Mzeku & Others v
Volkswagen SA (Pty) Ltd and Others
[2001] 8 BLLR 857
(LAC); 2001 (22) ILJ
1575 (LAC).
[3]
Volkswagen SA (Pty) Ltd v
Brand NO and Others
[2001] 5 BLLR 558
(LAC); 2001 (22) ILJ 993 (LC).
[4]
Mzeku and Others v
Volkswagen SA
2001 (22) ILJ 771 (CCMA).
[5]
Mzeku and Others v
Volkswagen SA
above n 4 at 794B.
[6]
Section 193 provides:
“(1) If the Labour Court or an arbitrator appointed in terms of this Act
finds that a dismissal is unfair, the Court or the
arbitrator
may—
(a) order the employer to re-instate the employee from
any date not earlier than the date of dismissal;
(b) order the employer to re-employ the employee, either in the work in which
the employee was employed before the dismissal or in
other reasonably suitable
work on any terms and from any date not earlier than the date of dismissal;
or
(c) order the employer to pay compensation to the employee.
(2) The Labour Court or the arbitrator must require the employer to re-instate
or re-employ the employee unless—
(a) the employee does not
wish to be re-instated or re-employed;
(b) the circumstances surrounding the dismissal are such that a continued
employment relationship would be intolerable;
(c) it is not reasonably practicable for the employer to re-instate or
re-employ the employee; or
(d) the dismissal is unfair only because the employer did not follow a fair
procedure.
(3) If a dismissal is automatically unfair or, if a dismissal based on the
employer’s operational requirements is found to
be unfair, the Labour
Court in addition may make any other order that it considers appropriate in the
circumstances.
(4) An arbitrator appointed in terms of this Act may determine any unfair labour
practice dispute referred to the arbitrator, on
terms that the arbitrator deems
reasonable, which may include ordering reinstatement, re-employment or
compensation.”
[7]
Section 145(1) and (2) provides:
“(1) Any party to a dispute who alleges a defect in any arbitration
proceedings under the auspices of the Commission may apply
to the Labour Court
for an order setting aside the arbitration
award—
(a) within six weeks of the date that the award was
served on the applicant, unless the alleged defect involves corruption; or
(b) if the alleged defect involves corruption, within six weeks of the date
that the applicant discovers the corruption.
(1A) The Labour Court may on good cause shown condone the late filing of an
application in terms of subsection (1).
(2) A defect referred to in subsection (1), means—
(a) that
the commissioner—
(i) committed misconduct in relation to the duties of the commissioner as an
arbitrator;
(ii) committed a gross irregularity in the conduct of the arbitration
proceedings; or
(iii) exceeded the commissioner’s powers;
or
(b) that an award has been
improperly obtained.”
[8]
Rule 18(10)(b) provides
that:
“Applications for leave to appeal may be dealt with summarily, without
hearing oral or written argument other than that contained
in the application
itself.”
[9]
NEHAWU v University of Cape Town and Others
2003 (2) BCLR 154
(CC) at
para 31.
[10]
In
Viljoen v Federated
Trust Ltd
1971 (1) SA 750
(O) at 757B-C, Steyn AJ, on the question of
pleadings by lay persons, said that:
“Where the pleadings to which exception is taken are drawn by a lay
litigant in person a Court will make allowance for the
fact that such a person
cannot be expected to display the same ability of draughtsmanship and precision
of language as is expected
by a legally trained and experienced pleader. On the
other hand the Court will not ignore the interests of the excipient and will
not
allow mere inexperience in matters of pleading to excuse serious non-compliance
with the requirements of the Rules of Court which
are, after all, based on
notions of justice and fair play to both sides in litigation.”
Similarly, pleadings prepared by laypersons in the United States
of America are held “to less stringent standards than formal
pleadings
drafted by lawyers.”
Haines v Kerner et al
[1972] USSC 29
;
404 US 519
(1971) at
520. In
Picking et al v Pennsylvania R.. Co. et al
151 F 2nd
240 at 244,
the court held that “where a plaintiff pleads pro se in a suit for the
protection of civil rights the court should
endeavor to construe the
plaintiff’s pleading without regard for technicalities.”
[11]
In
S v Twala (SA Human
Rights Commission Intervening)
[1999] ZACC 18
;
2000 (1) SA 879
(CC);
2000 (1) BCLR 106
(CC)
at paras 4–5, this Court construed a handwritten letter as an application
for leave to appeal even though the letter was
“not on its face an
application for leave to appeal but [was] described as an application in terms
of section 35(3)(o).”