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[2014] ZAWCHC 140
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O Thorpe Construction and Others v Minister Of Labour and Others (9380/2013) [2014] ZAWCHC 140; (2015) 36 ILJ 935 (WCC) (9 September 2014)
IN THE HIGH COURT OF
SOUTH AFRICA
(WESTERN CAPE DIVISION,
CAPE TOWN)
CASE NO: 9380/2013
DATE: 09 SEPTEMBER 2014
Reportable
In the matter between:
O THORPE
CONSTRUCTION
..............................................................................
First
Applicant
C M STODDART t/a GC
STODDART &
SON
......................................................
Third
Applicant
TOPAZ LAKE t/a JVR
CONSTRUCTION
(PTY)
...............................................
Fourth
Applicant
RG PAVING
CC
....................................................................................................
Fifth
Applicant
G & H ONTWIKKELINGS
t/a HJH KONSTRUKSIE BK
…
.........................................................................................................................
Sixth
Applicant
DESHELF 26 CC t/a
LIGHTHOUSE CONSTRUCTION
…
.....................................................................................................................
Seventh
Applicant
DRIES LE ROUX
KONSTRUKSIE
CC
................................................................
Eight
Applicant
BETTY’S BAY
BUILDERS t/a HENNIE HENN CONSTRUCTION
…
........................................................................................................................
Ninth
Applicant
AMAKAYA CONSTRUCTION
CC
.....................................................................
Tenth
Applicant
DELLE DONNE (PTY) LTD
t/a EXCLUSIVE WORKS
.................................
Eleventh
Applicant
TOMMY OCTOBER
BOUERS
........................................................................
Twelfth
Applicant
L & M
CARPENTERS
................................................................................
Thirteenth
Applicant
GT
PROJECTS
...........................................................................................
Fourteenth
Applicant
DIRK ROMIJN & SEUNS
KONSTRUKSIES BK
..........................................
Fifteenth
Applicant
WALKER BAY DECKING
CC
......................................................................
Sixteenth
Applicant
THETYER PROPERTY
DEVELOPMENTS (PTY) LTD t/a TPD CONSTRUCTION
…
..............................................................................................................
Seventeenth
Applicant
CHARLES TAYLOR
CONSTRUCTION
.....................................................
Eighteenth
Applicant
And
THE MINISTER OF
LABOUR
..........................................................................
First
Respondent
THE BARGAINING COUNCIL
FOR THE BUILDING INDUSTRY (CAPE OF GOOD HOPE)
…
...................................................................................................................
Second
Respondent
BOLAND MEESTER BOUERS &
VERWANTE BEDRYWE VERENIGING
…
......................................................................................................................
Third
Respondent
MASTER BUILDERS AND
ALLIED TRADES ASSOCIATION, CAPE PENINSULA
…
....................................................................................................................
Fourth
Respondent
BUILDING CONSTRUCTION
AND ALLIED WORKERS UNION
…
......................................................................................................................
Fifth
Respondent
THE BUILDING WOOD AND
ALLIED WORKERS UNION OF SOUTH AFRICA
…
.....................................................................................................................
Sixth
Respondent
THE BUILDERS WORKERS
UNION
.........................................................
Seventh
Respondent
NATIONAL UNION OF MINE
WORKERS (NUM)
......................................
Eighth
Respondent
EMPLOYEES OF FIRST
APPLICANT
............................................................
Ninth
Respondent
EMPLOYEES OF SECOND
APPLICANT
.......................................................
Tenth
Respondent
EMPLOYEES OF THIRD
APPLICANT
.....................................................
Eleventh
Respondent
EMPLOYEES OF FOURTH
APPLICANT
....................................................
Twelfth
Respondent
EMPLOYEES OF FIFTH
APPLICANT
....................................................
Thirteenth
Respondent
EMPLOYEES OF SIXTH
APPLICANT
...................................................
Fourteenth
Respondent
EMPLOYEES OF SEVENTH
APPLICANT
.................................................
Fifteenth
Respondent
EMPLOYEES OF EIGHTH
APPLICANT
...................................................
Sixteenth
Respondent
EMPLOYEES OF ELEVENTH
APPLICANT
..........................................
Seventeenth
Respondent
EMPLOYEES OF TWELFTH
APPLICANT
...............................................
Eighteenth
Respondent
EMPLOYEES OF THIRTEENTH
APPLICANT
.........................................
Nineteenth
Respondent
EMPLOYEES OF FOURTEENTH
APPLICANT
.........................................
Twentieth
Respondent
EMPLOYEES OF FIFTEENTH
APPLICANT
...........................................
Twenty
First Respondent
EMPLOYEES OF SIXTEENTH
APPLICANT
......................................
Twenty
Second Respondent
EMPLOYEES OF
SEVENTEENTH APPLICANT
..................................
Twenty
Third Respondent
THE REGISTRAR OF LABOUR
RELATIONS
....................................
Twenty
Fourth Respondent
THE DEPARTMENT OF
LABOUR
.........................................................
Twenty
Fifth Respondent
JUDGMENT
: 09 September 2014
DAVIS J
Introduction
[1] The applicants seek an
order setting aside a decision of the first respondent to extend a
collective agreement concluded in
the Building Industry Council for
the Building Industry Cape of Good Hope (BIBC) to non-parties within
its registered scope, including
those located in the Overstrand
Region for the period 27 December 2012 to 31 October 2013 (‘the
Ministers decision’).
[2] To this end the
applicants have raised the following grounds of review:
1. The Minister failed to
extend the agreement to non-parties within 60 days of BIBC requesting
her to do so in terms of s 32 (2)
of the Labour Relations Act 66 of
1995 (‘LRA’)
2. The Minister did not
herself determine the date for commencement of the extension notice
published in the Government Gazette
as required in terms of s 32 (2)
of the LRA.
3. The extension date is
rendered invalid by reason of the fact that the notice published by
the Minister in the Government Gazette
which was intended to cancel
the previous extension notice but ing in fact cancelled the wrong
notice; and
4. The Minister could not
reasonably have satisfied herself that the employer
representativeness requirements of s 32(3) of the
LRA were met.
[3] Mr Stelzner, who
appeared together with Ms McChesney on behalf of the applicants, did
not press the third of these points but
relied on the remaining
grounds to justify the relief which applicants seek from this court.
Apart from these questions, the
second respondent (‘the
Bargaining Council’) raised on limine point, namely that the
application fell to be dismissed
on the basis that this court lacked
jurisdiction to hear the matter. A further in limine point was
raised with regard to an argument
that the review application was
brought after an unreasonable delay.
[4] Manifestly if either
of these in limine points is good, the merits of this application
falls to be dismissed. I turn therefore
to deal with the question
of jurisdiction.
Jurisdiction
[5] In a most instructive
argument Mr Freund, who appeared for second respondent together with
Ms Cronje, developed his argument
in a series of stages each of which
requires a careful analysis of certain provisions of the LRA; in
particular s 157 (1) and (2)
which, in his view, must be interpreted
through the prism of the LRA read as a whole. The preamble to the
LRA provides, inter
alia, that the purpose of the Act is, ‘to
establish the Labour Court and the Labour Appeal Court as superior
courts, with
exclusive jurisdiction to decide matters arising from
the Act.’ Section 3 (a) of the LRA provides that any person
applying
this Act must interpret its provision to give effect to its
primary objects.
[6] The importance of
these provisions was emphasised by Ngcobo J (as he then was) in
Chirwa v Transnet Ltd and others
[2007] ZACC 23
;
2008 (4) SA 367
(CC) at para 110 –
111:
‘The objects of LRA
are not just textual aids to be employed with the language which is
ambiguous. This is apparent from
the interpretive injunction of s 3
of LRA which requires anyone applying the LRA to give effect to its
primary objects and the
constitution. The primary objects of the LRA
must inform the interpretive process and the provisions of the LRA
must be read in
the light of its objects. Thus where interpretation
of the LRA is capable of more than one plausible interpretation, one
which
advances the objects of the LRA and the other which does not a
court must prefer the one which effectuate the primary objects of
the
LRA… When enacting the LRA Parliament … went on to
entrust the primary interpretation application with rules
to specific
and specially constituted tribunals and forums and prescribed
particular procedure for resolving disputes arising under
the LRA.’
[7] This analysis is vital
when a court is required to interpret the key section which will
unlock this dispute, namely s 157 of
the LRA. This section reads
thus insofar as it is relevant to this dispute:
Jurisdiction of Labour
Court. - (1) Subject to the Constitution and section 173, and except
where this Act provides otherwise, the
Labour Court has exclusive
jurisdiction in respect of all matters that elsewhere in terms of
this Act provides or in terms of any
other law are to be determined
by the Labour Court.
(2) The Labour Court has
concurrent jurisdiction with the High Court in respect of any alleged
or threatened violation of any fundamental
right entrenchment in
Chapter 2 of the Constitution of the Republic of South Africa, 1996,
and arising from –
(a) employment and from
labour relations
(b) any dispute over the
constitutionality of any executive or administrative act or conduct,
or any threatened executive or administrative
act or conduct, by the
State in its capacity as an employer, and
(c) the application of any
law for the administration of which is the Minister is responsible.
[8] A further important
provision is s 158 entitled ‘Powers of the Labour Court’.
Section 158(1)(g) provides that the
Labour Court may, subject to s
145, review the performance or purported performance of any function
provided for in this Act on
any grounds that are permissible in law.
According to Mr Freund, this section is a jurisdictional conferring
provision and should
be contrasted, for example, to s 158(1)(a) which
provides that the Labour Court may make any appropriate order
including inter
alia;
(i) granting of urgent
interim relief
(ii) an interdict
(iii) an order directing
a performance of any particular act which order, when implemented,
will remedy a wrong and give effect
to the primary objects of this
Act
All of these powers appear
to be focussed on a menu of relief options that the court might
grant.This is to be contracted with s
158 (1)(g), or for example, s
158(1)(h) which provides that the Labour Court may review any
decision taken or any act performed
by the State in its capacity as
employer on such grounds as are permissible in law.
[9] These latter sections
were read by Ngcobo J in Chirwa, supra at para 119 as follows:
‘The objective to
establish a one-stop court for labour and employment relations is
apparent in other provisions of the LRA.
Section 157(3) confers on
the Labour Court jurisdiction to review arbitrations conducted under
the
Arbitration Act, 1965
‘in respect of any dispute that may
be referred to arbitration in terms of the [the LRA]’. The
Labour Court has the
power to review the performance of any function
which is provided for in the LRA; and to review any decision taken or
any act performed
by the State in its capacity as an employer. All
these provisions are designed to strengthen the power of the Labour
Court to
deal with disputes arising from labour and employment
relations.
Viewed in this context,
the primary purpose of
s 157
(2) was not so much to confer
jurisdiction on the High Court to deal with labour and employment
relations disputes, but rather
to empower the Labour Court to deal
with causes of action that are founded on the provisions of the Bill
of Rights but which arise
from employment and labour relations. The
constitutional authority of the legislature to confer that power on
the Labour Court
is found in s 169(a)(ii) of the Constitution. That
provision authorises Parliament to assign any constitutional matter
‘to
another court of a status similar to a High Court’
and to deprive the High Court of the jurisdiction in respect of a
matter
assigned to another court.’
[10] This reading leads to
an investigation of the meaning of s 157 (2) of the LRA which is
relied upon by the applicants in their
submission that this court
does have the necessary jurisdiction. In this connection Ncgobo J
gave content to the wording of s
157 (2) of the LRA when at para 123
of his judgment in Chirwa, supra he said:
‘While s 157 (2)
remains on the statue book it must be construed in the light of the
primary objectives of the LRA. The first
is to establish a
comprehensive framework of law governing the labour and employment
relations between employers and employees
in all sectors. The other
is the objective to establish the Labour Court and labour Appeal
Court as superior courts, with exclusive
jurisdiction to decide
matters arising from the LRA. In my view the only way to reconcile
the provisions of s 157(2) and harmonise
them with those of s 157(1)
and the primary objects of the LRA is to give s 157(2) a marrow
meaning. The application of s 157(2)
must be confined to those
instances, if any, where a party relies directly on the provisions of
the Bill of Rights. This of course
is subject to the constitutional
principle that we have recently reinstated, namely, that ‘where
legislation is enacted to
give effect to a conditional right, a
litigant may not bypass that legislation and rely directly on the
Constitution without challenging
that legislation as falling short of
the constitutional standard’.
[11] In the present case,
applicants contend that this Court has jurisdiction to determine
their application, which rests on allegations
of failure by the
Minister to properly apply the provisions of s 32 of the LRA which
reads, insofar as its text is relevant to
the present dispute:
‘(1) A bargaining
council may ask the Minister in writing to extend a collective
agreement concluded in the bargaining council
to any non-parties to
the collective agreement that are within its registered scope and are
identified in the request, if at a
meeting of the bargaining council-
(a) one or more registered
trade unions whose members constitute the majority of the members of
the trade unions that are party
to the bargaining council vote in
favour of the extension; and
(b) one or more registered
employers’ organisations, whose members employ the majority of
the employees employed by the members
of the employers’
organisations that are party to the bargaining council, vote in
favour of the extension.
(2) Within 60 days of
receiving the request, the Minister must extend the collective
agreement, as requested, by publishing a notice
in the Government
Gazette declaring that, from a specified date and for a specified
period, the collective agreement will be binding
on the non-parties
specified in the notice.’
[12] Putting these
provisions together, Mr Freund contended, particularly on the basis
of the interpretation given to s 157 by the
Constitutional Court in
Chirwa, that it was clear that disputes which turned on a specific
provision of the LRA, such as s 32
of the LRA, were disputes relating
to matters which fell directly within the LRA. In other words, the
present dispute was a matter
which turned exclusively on a provision
of the LRA and hence it was the Labour Court which was clothed with
exclusive jurisdiction
to determine the dispute. So much, in Mr
Freund’s view, was clear from the dicta which I have cited of
Ngcobo J in Chirwa.
[13] By contrast, Mr
Stelzner contended that there were areas of concurrent jurisdiction
which were to be sourced in s 157(2) of
the Act. Thus, when an
employee brings a contractual claim, she can elect to proceed to the
High Court or the Labour Court for
the purposes of enforcing her
contractual claim. This proposition finds support in
s 77
(3) of
the
Basic Conditions of Employment Act 5 of 1997
. Mr Stelzner
further submitted that, in a case where the Minister acts contrary to
the principle of legality, this principle
is so fundamental a
constitutional value underlying the very basis of law that it must
follow that the High Court would have jurisdiction
to enforce this
core principle. In the present case he contended that the case
brought by the applicants turned on the principle
of legality, that
is the Minister had failed to comply with the law and accordingly the
High Court was possessed of the requisite
jurisdiction. In
particular,
s 157(2)
of the LRA provides expressly for concurrent
jurisdiction where the applicants seek to invoke s 33 of the Republic
of South Africa
Constitution Act 108 of 1996 (‘the
Constitution’) or the Promotion of Administrative Justice Act 3
of 2000 (PAJA) to
sustain its case.
[14] Mr Steltzner also
referred to the decision of the Constitutional Court in Gcaba v
Minister for Safety and Security and others
2010 (1) SA 238
(CC), in
particular at para 53:
‘It is undoubtedly
correct that the same conduct may threaten or violate different
constitutional rights and give rise to
different causes of action in
law, often even to be pursued in different courts or fora, it speaks
for itself that, for example,
aggressive conduct of a sexual nature
in the workplace could constitute a criminal offence, violate
equality legislation, breach
a contract, give rise to the actio
iniuriarum in the law of delict and amount to an unfair labour
practice. Areas of law are
labelled or named for purposes of
systematic understanding and not necessarily on the basis of
fundamental reasons for a separation.
Therefore, rigid
compartmentalisation should be avoided.’
Further, Mr Stelzner
suggested that the Court in para 66 in Gcaba sought to confine the
dicta in Chirwa as follows:
‘In Chirwa Ngcobo J
found that the decision to dismiss Ms Chirwa did not amount to
administrative action. He held that whether
an employer is regarded
as ‘public’ or ‘private’ cannot determine
whether its conduct is administrative
action or an unfair labour
practice. Similarly, the failure to promote and appoint Mr Gcaba
appears to be a quintessential labour-related
issue, based on the
right to fair labour practices, almost as clearly as an unfair
dismissal. Its impact is felt mainly by Mr
Gcaba and has little or
no direct consequence for any other citizens.’
Mr Stelzner also referred
to para 71 of Gcaba to sustain his argument that s 157 (2) of the LRA
would confirm jurisdiction on this
court, insofar as this dispute was
concerned. This paragraph from the judgment reads thus:
‘Section 157 (2)
confirms that Labour Court has concurrent jurisdiction with the High
Court in relation to alleged or threatened
violations of fundamental
rights entrenched in Ch 2 of the Constitution and arising from
employment and labour relations, any dispute
over the
constitutionality of any executive or administrative act or conduct
by the State in its capacity as employer and the application
of any
law for the administration of which the minister is responsible.’
See also Freedom Under Law
v DPP
2014 (1) SA 254
(GNP) at para 229.
[15] The decisions in
Chirwa and Gcaba received the attention of the Supreme Court of
Appeal in Makhanya v University of Zululand
2010 (1) SA 62
(SCA) a
judgment relied upon heavily by applicants. In that case the
appellant claimed that he had been employed by the respondent
under a
contract of employment. The respondent purported to terminate the
contract in breach of its terms. Notwithstanding the
cancellation,
appellant continued to render services or at least tendered to do so.
However, respondent had not paid his remuneration
and other monies
to which the contract entitled him. He therefore claimed orders
compelling it to do so.
[16] The question of the
jurisdiction of the High Court was raised by the respondent. Nugent
JA found that the employment of the
appellant terminated, as in
Chirwa, and that it had given rise similarly to a potential claim to
enforce a right under the LRA.
Nugent JA went on to say that in
Makhanya the claim also fell within the ordinary powers of the High
Courts to enforce contractual
claims and in Chirwa the claim likewise
fell within the ordinary powers of the High Court to enforce a
constitutional right conferred
upon the High Court in terms of s 157
(2) of the LRA. The question which then arose in Makhanya’s
case was whether the
decision in Chirwa bound the Court and compelled
it to hold that the High Court had no jurisdiction to hear the case.
After a
careful analysis of Chirwa, Nugent JA concluded thus:
‘To summarise, I am
driven to conclude that the ratio for the order that was made in
Chirwa (both of the minority and the
majority, but for Skweyiya J)
was that the termination of an employment contract in the
circumstances in which it occurred in that
case, does not constitute
‘administrative action’, and for that reason the claim
was bad in law and it was dismissed
on that ground. The further
views of the majority that the High Court had no jurisdiction to
consider the claim was not the ratio
for the order that it made and
what was said by various members of the court in that regard is thus
not binding upon us. In those
circumstances we are free to dispose
of this appeal on conventional principles.’ (at para 94)
[17] Accordingly the court
held that, as the claim in Makhanya was for the enforcement of a
common law right of a contracting party
to exact performance of the
contract, it was a claim which fell within the ordinary powers of the
High Court and accordingly the
jurisdictional objection stood to
fail.
Evaluation
[18] In my view, even if
this approach can be sustained by a narrow view of the ratio in
Chirwa, it does not appear to accord any
weight to the clear
statement of Ncgobo J at para 124 a, passage which is so important
that it bears comprehensive reproduction:
‘Where, as here, an
employee alleges non-compliance with provisions of the LRA, the
employee must seek the remedy in the LRA.
The employee cannot, as
the applicant seeks to do, avoid the dispute resolution mechanisms
provided for in the LRA by alleging
a violation of a constitutional
right in the Bill of Rights. It could not have been the intention of
the legislature to allow
an employee to raise what is essentially a
labour dispute under the LRA as a constitutional issue under the
provisions of s157(2).
To hold otherwise would frustrate the primary
objects of the LRA and permit an astute litigant to bypass the
dispute resolution
provisions of the LRA. This would inevitably
give rise to forum shopping simply because it is convenient to do so
or as the applicant
alleges, convenient in this case ‘for
practical considerations’. What is in essence a labour dispute
as envisaged
in the LRA should not be labelled a violation of a
constitutional right in the Bill of Rights simply because the issue
raised could
also support a conclusion that the conduct of the
employer amounts to a violation of a right entrenched in the
Constitution.’
[19] Clearly, when
confronted by the judgment in Makhanya and by this dictum in Chirwa,
this court needs to reconcile these two
passages, to the extent that
it is possible as it is bound by the jurisprudence of the higher
courts. But the problem was easily
solved in that case. The essence
of Makhanya’s case was that if there was a contractual claim, a
High Court has jurisdiction
to hear this claim. But in the present
case, the factual matrix upon which the application rests differs
markedly. Accordingly,
the finding in Makhanya is manifestly
distinguishable. In brief, in Makhanya, supra, the case was
essentially about an employee
who had unsuccessfully pursued an
unfair dismissal claim before the CCMA. It was argued that he had
no right to pursue a contractual
common law claim before the High
Court. The SCA dismissed this argument, with respect correctly. It
held that separate causes
of action arising from the same incident
could coexist and that the fact that the LRA had created a cause of
action falling within
the jurisdiction of the Labour Court did not
mean that contractual remedies before the civil courts had been
destroyed. This has
little, if anything to do with the present
dispute.
[20] I therefore do not
have to engage with the implications of the omission by Nugent JA to
consider the weight of the passage
in Chirwa set out at para 124 and
further whether this formed part of the ratio for the order that was
made in Chirwa, however
interesting a debate that might prove.
[21] There is an exclusive
power which is granted to the Labour Court. So much is clear from s
157 (1) of the LRA. Furthermore
in para 123, the court in Chirwa
clearly indicated that s 157(2) had to be confined to instances
‘where a party relies directly
on the provisions of the Bill of
Rights. This of course is subject to constitutional principle that
…where legislation
is enacted to give effect to a
constitutional right to, the litigant may not bypass that legislation
relied directly on the constitution
without challenging that
legislation as falling short of the constitutional standard.’
[22] The animating idea
captured herein is the recognition of the principle of constitutional
subsidiarity. The dictum further
eschews an argument that would so
expand the range of constitutional litigation, otherwise constrained
by the ambit of s 157(1),
with the result that parallel jurisdiction
would invariably be created. In almost any case, in which the LRA
applied, an applicant
could then argue that there was a breach of
legality; that is of a provision of the LRA and by extension of the
Constitution.
In short, a breach of legality would occur in almost
every case where it was alleged that there was a breach of or
non-compliance
with a provision of the LRA.
[23] In Makhanya, supra
Nugent JA sought to resolve this potential problem by mandating
Courts to examine the nature of the cause
of action or claim which is
before the Court. This examination is critical to the determination
of whether a Court may hear the
particular case. Nugent JA appears
to take issue with the incisive analysis of Chirwa by Professor
Halton Cheadle (2009 (30)
ILJ 741) for reasons which are not entirely
clear to me. When Cheadle at 754 writes that the Court in Chirwa
characterised the
decision to terminate Ms Chirwa’s employment
as a labour practice rather than as administrative action, he
confirmed the
key point that a Court is required to examine upon what
the applicant bases her claim and this finding in turn unlocks the
door
to the dilemma of jurisdiction. Cheadle at 745-746 makes the
further important point which supports the approach I have adopted
in
this judgment, namely that the LRA was passed in response to the
design of s 23 of the Constitution which envisaged a designated,
carefully calibrated legislative system to deal with labour law and
to give content to the rights set out in s 23 of the Constitution.
[24] In the present case,
the claim made by the applicants was that the Minister failed to
comply with the LRA and, in particular
with s 32; hence the relief
sought by the applicants was for an order reviewing and setting aside
the decision made by the Minister,
pursuant to s 32 of the LRA. The
very act of extension of a collective agreement to non-parties in the
building industry constitutes
the performance of a function provided
for expressly in the LRA. The Constitutional Court in Gcaba, supra,
far from adopting
a different approach to that set out by Ngcobo J in
Chirwa, reinforced this conclusion, as is apparent from the following
passages
at para 70 – 72:
‘[70] Section 157(1)
confirms that the Labour Court has exclusive jurisdiction over any
matter that the LRA prescribes should
be determined by it. That
includes, amongst other things, reviews of the decisions of the CCMA
under s 145. Section 157(1) should,
therefore, be given expansive
content to protect the special status of the Labour Court, and s
157(2) should not be read to permit
the High Court to have
jurisdiction over these matters as well.
[71] Section 157(2)
confirms that the Labour Court has concurrent jurisdiction with the
High Court in relation to alleged of threatened
violations of
fundamental rights entrenched in Ch. 2 of the Constitution and
arising from employment and labour relations, any
dispute over the
constitutionality of any executive or administrative act or conduct
by the State in its capacity as employer and
the application of any
law for the administration of which the minister is responsible. The
purpose of this provision is to extend
the jurisdiction or the Labour
Court to disputes concerning the alleged violation of any right
entrenched in the Bill of Rights
which arise from employment and
labour relations, rather than to restrict or extend the jurisdiction
of the High Court. In doing
so, s 157(2) has brought employment and
labour relations disputes that arise from the violation of any right
in the Bill of Rights
within the reach of the Labour Court. This
power if the Labour Court is essential to its role as a specialist
court that is charged
with the responsibility to develop a coherent
and evolving employment and labour relations jurisprudence. Section
157(2) enhances
the ability of the Labour Court to perform such a
role.
[72] Therefore, s 157(2)
should not be understood to extend the jurisdiction of the High Court
to determine issues which (as contemplated
by s 157(1)) have been
expressly conferred upon the Labour Court by the LRA. Rather, it
should be interpreted to mean that the
Labour Court will be able to
determine constitutional issues which arise before it, in the
specific jurisdictional areas which
have been created for it by the
LRA, and which are covered by s 157 (2) (a), (b) and (c).’
[25] It follows from this
holding that, if as in this case, the cause of action concerns an
alleged breach of a provision of the
LRA, it is a matter which falls
within the exclusive jurisdiction of the Labour Court.
[26] It remains for me to
canvass the one judgment which directly favours the applicants,
namely Value Line CC and others v Minister
of Labour and other (2013)
34 ILJ 1404 (KZP).
[27] In Valueline Koen J
adopted the approach that the High Court did have jurisdiction to
review and set aside a decision of the
Minister to extend a
collective bargaining agreement to non-parties. To the extent that
I understand the learned judge’s
approach it may be set out as
follows: Relying on the Constitutional Court decision in Fredericks
and others v MEC for Education
and Training, Eastern Cape and Others
[2001] ZACC 6
;
2002 (2) SA 693
(CC), in was held that s 157 (1) of the LRA ‘does
not purport to confer exclusive jurisdiction upon the Labour Court
generally
in respect of employment related matters’ (at para
25).
[28] The express
requirement in s 157, that the subject matter of the dispute must be
one of a range of ‘matters’ which
stands to be determined
by the Labour Court, is to be contrasted to powers conferred on the
Labour Court in which it may exercise
jurisdiction. Thus, s 158 (1)
(b) does not provide expressly that such a review is a matter which
is to be determined by the Labour
Court but merely that it is a
matter that ‘the Labour Court may’ review. Thus, Koen J
finds: ‘as the provisions
of the LRA do not expressly or by
necessary implication, provide that such a review is to be determined
by the Labour Court, the
jurisdiction of the High Court to determine
such a review is not ousted and the jurisdiction of the Labour Court
is therefore not
exclusive’. (at para 27)
[29] For Koen J, s 158 (1)
(g) provides that where the Labour Court has jurisdiction in a
particular matter, whether in terms of
exclusive or concurrent
jurisdiction with the High Court and the dispute concerns a review
and relief which follows upon this review,
the Labour Court is
granted the power to review the performance or purported performance
of any function which is the subject of
the review. Koen J then
continues:
‘If the respondent’s
interpretation of s 158(1)(g) of the granting of the permissive power
to review contained in s
158(1)(g) constitutes a direction that any
matter involving a review ‘is to be determined’ by the
Labour Court , whether
express or by necessary implication, as
contemplated in s 157(1), thus conferring exclusive jurisdiction on
the Labour Court,
then by parity of reasoning, any dispute in respect
of which ‘any appropriate order’ may be granted would
also confer
exclusive jurisdiction on the Labour Court. That would
entail exclusive jurisdiction being conferred on the Labour Court in
probably
almost all matters that could conceivably come before it
with reference to the kind of relief that may be granted, rather than
with reference to the cause of action relied upon.’ (at para
31)
[30] In summary therefore,
the reasoning adopted by the learned judge appears to be the
following: If s 158 (1) (g) which grants
a power of review to the
Labour Court as read together with s 157 (1), in the manner
contended for by second respondent in this
case, then in any
dispute, any appropriate order which may be granted would be subject
to the exclusive jurisdiction of the Labour
Court, notwithstanding
the cause of action upon which the applicant relied.
[31] By contrast, the
implication of the judgment in Valueline is that s 157 (1) of the LRA
has a very narrow scope and almost all
matters of a labour nature are
potentially, at least, subject to the concurrent jurisdiction of the
High Court and the Labour Court.
This conclusion follows from the
statement in the Valueline judgment that s 157 (1) ‘does not
confer exclusive jurisdiction
generally in respect of employment
related matters’. (para 24)
[32] Not only does this
conclusion compromise the very purpose of s 157 (1) of the LRA as I
have outlined it but it stands in stark
contrast to two critical
judgments which Koen J did not canvass in the Valueline case, namely
the Constitutional Court judgments
in Chirwa and Gcaba, supra, to
which extensive reference has been in this judgment. In addition,
the idea that s 158(1)(g) is
a jurisdiction conferring provision
appears to have been ignored. This section needs to be read together
with s 157 (1). If s
158 (1) (g) did not exist, the question would
arise as to how the Labour Court would possess jurisdiction to review
a ministerial
decision which the judgment in Valueline accepts it
does have, albeit concurrently with the High Court (see in particular
para
32 of Valueline).
[33] In summary, in my
view, the decision in Valueline is not in accordance with
Constitutional Court jurisprudence and therefore
can be rejected for
the purposes of this judgment.
Conclusion
[34] The conclusion to
which I have arrived renders it unnecessary to deal with the
remaining point in limine dealing with unreasonable
delay and, in
particular, the significant argument raised by the second respondent
that delay in this case was unreasonable, not
only before of
noncompliance with the 180 day period provided for in
s 7
(1) of the
Promotion of Administrative Justice Act 3 of 2000
but because of an
absence of a basis to condone a delay which exceeded 180 days. In
this connection, the argument was raised that
the period of operation
of the extension of the collective agreement was from 17 December
2012 to 31 October 2013. Applicants
brought the application about
six months into its operation and about four months before it was due
to expire. It is common cause
that the entire industry arranges its
affairs, including wage rates in accordance with extensions to the
collective agreement from
time to time. Accordingly a lengthy delay
of the kind which was alleged in this case by second respondent,
would constitute an
unreasonable delay.
[35] There is also no
reason to examine the various grounds of review which has been raised
by the applicants in that, absent the
necessary jurisdiction this
court cannot deal with the merits thereof, neither is there a need to
address with the interesting
question as to the implications of the
judgment of the Constitutional Court in Consolidated Investment
Holdings (Pty) Ltd and others
v Chief Executive Officer of the South
African Social Security Agency and others
2014 (1) SA 604
(CC) at
para 28, that an irregularity must be legally evaluated to determine
whether it amounts to a justifiable ground of review
under PAJA and
the further question of whether this legal evaluation must take into
account the materiality of any deviation from
any legal requirements.
The Court suggests that this be done by linking the question of
compliance to the purpose of the relevant
provision before concluding
that the review ground has been established. That is not a
determination to be undertaken by this
Court.
[36] It is important to
emphasise the following: the conclusion to which I have arrived does
not deprive a litigant of a remedy.
Its claim does not fall away
merely because this is a matter which is to be heard in the Labour
Court. The finding of this Court
is to assert that a clear purpose
of the LRA was to create a specialist court; that is the Labour
Court being of similar status
to the High Court which is required to
deal with all matters arising from the LRA in terms of claims which
are based thereon.
[37] For all of these
reasons therefore, the application is dismissed with costs, including
the costs of two counsel.
DAVIS J