Botselo Holdings (Pty) Ltd v National Transport Movement and Others (J479/16) [2016] ZALCJHB 377 (5 October 2016)
The court found that NTM had not provided proof of meeting the 50% plus one membership threshold required for collective bargaining rights under the recognition agreement. The agreement applied prospectively to existing demands from the date of signing and did not allow for exemption or retrospective application to...
Source-derived case information.
- Citation
- [2016] ZALCJHB 377
- Parties
- Respondent: Botselo Holdings (Pty) Ltd; Applicant: National Transport Movement; Applicant: Members of the National Transport Movement
- Court
- Labour Court Johannesburg
- Jurisdiction
- South Africa
- Case Number
- J479/16
- Procedural Posture
- Leave to Appeal / Application for Leave to Appeal Following Urgent Interdict
- Outcome
- Application for leave to appeal dismissed with costs.
- Judges
- Lagrange
- Legal Topics
- Collective Bargaining, Recognition Agreement, Strike Interdict, Leave to Appeal
Source-derived case record
Summary, issues, holding and outcome
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Parties
Botselo Holdings (Pty) Ltd
Respondent
National Transport Movement
Applicant
Members of the National Transport Movement
Applicant
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Following Urgent Interdict
Legal Issues
- 1 Whether the applicants have demonstrated reasonable prospects of success for leave to appeal against the interdict judgment.
- 2 Whether the recognition agreement entitled NTM to collective bargaining rights at the relevant time.
- 3 Whether the recognition agreement applied retrospectively to pending disputes.
Ratio Decidendi
The court found that NTM had not provided proof of meeting the 50% plus one membership threshold required for collective bargaining rights under the recognition agreement. The agreement applied prospectively to existing demands from the date of signing and did not allow for exemption or retrospective application to disputes predating the agreement. The evidence showed that NTM's intended strike related to bargaining over terms and conditions, but NTM was bound by the agreement to accept that bargaining rights were conditional on meeting the threshold. The grounds of appeal did not raise new issues and were addressed in the original judgment. The court was not persuaded that there was a...
Court Disposition
Application for leave to appeal dismissed with costs.
Orders
- The application for leave to appeal is dismissed.
- The applicants are ordered to pay the costs.
Full Case Text
Judgment text and source record
36 paragraphs
THE LABOUR COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG
Case no: J 479-16
In the matter between:
BOTSELO HOLDINGS (PTY) LTD Applicant
and
NATIONAL TRANSPORT MOVEMENT First
Respondent
MEMBERS OF THE NATIONAL TRANSPORT MOVEMENT Second
Respondent
(as per the attached list of members)
JUDGMENT ON APPLICATION FOR LEAVE TO APPEAL
LAGRANGE J
Introduction [1] The applicants for leave to appeal were the respondents in the urgent application brought by the respondent in the appeal application. In the citation above the original citations of the parties have been retained. For sake of convenience I will refer to the applicants for leave to appeal as ‘NTM’ and the respondent as ‘Botselo’.
[2] In the judgement dated 18 March 2016 which interdicted the NTM and its members employed by Botselo from embarking on a strike, I found that the strike was unprotected on the basis that:
2.1 NTM had concluded a binding recognition agreement with Botselo, in terms of which it had agreed that it was not entitled to bargaining rights unless it had achieved a membership of 50% plus one of the relevant bargaining unit.
2.2 The recognition agreement also applied to pending disputes at the time the agreement was concluded, including the dispute giving rise to the intended strike.
[3] NTM appeals against the judgement on the basis that:
3.1 The court erred in not considering the ‘fact’ that NTM did meet the collective bargaining threshold in the agreement.
3.2 The agreement did not regulate wage negotiations for 2015.
3.3 The court ignored the fact that NTM had followed the procedures of the Labour Relations Act 66 of 1995 prior to giving notice of the strike action.
3.4 The recognition agreement could not operate retrospectively.
[4] There were some alleged defects in the leave to appeal application, but for the reasons which follow it is not necessary to address those.
[5] Considering the grounds of appeal, I am satisfied that:
5.1 At the time of the judgement, there was no proof that NTM had met the 50% +1 membership requirement as construed in the recognition agreement that would entitle it to collective bargaining rights.
5.2 The judgement did not purport to apply the recognition agreement retrospectively but only prospectively to the existing demands of NTM from the date of signing the recognition agreement on 25 January 2016. In terms of the collective agreement NTM had agreed that it was not entitled to collective bargaining rights unless met the 50% +1 threshold and the agreement contained no exemption from this provision which would entitle it to pursue a collective bargaining dispute which existed at the time the agreement was concluded notwithstanding the threshold not been met.
5.3 On the evidence before the court, the dispute NTM wished to strike over concerned a refusal to bargain over terms and conditions, whereas it had bound itself to accept that it was only entitled to bargaining rights if it met the threshold requirements in the collective agreement.
[6] In terms of section 17 (1) (h) (i) of the superior courts act, 10 of 2013, aside from other circumstances which are not applicable in this case, leave to appeal may only be granted if a judge is of the opinion that the appeal would have “a reasonable prospect of success” that does not mean that merely because another court might come to a different conclusion leave to appeal should be granted. The court must also consider if that is not merely a theoretical possibility but there is some likelihood that this would be the case.
[7] The grounds of appeal advanced do not really take NTM’s case any further than where it was and were essentially addressed in the judgment. I am not persuaded that the appellants have demonstrated that there is a reasonable prospect that another court might find the judgement was wrong for the reasons they provide.
Order
[8] The application for leave to appeal is dismissed, with costs.
_______________________
Lagrange J
Judge of the Labour Court of South Africa
5 October 2016
(In chambers)