City of Johannesburg Metropolitan Municipality and Others v Independent Municipality and Allied Workers Union and Others (J 1232/06) [2013] ZALCJHB 273 (21 October 2013)

3

Not Reportable

IN THE LABOUR COURT OF SOUTH AFRICA

HELD AT JOHANNESBURG

CASE NO: J 1232/06

In the matter between:

CITY OF JOHANNESBURG METROPOLITAN

MUNICIPALITY ...........................................................................................1ST APPLICANT

EKURHULENI METROPOLITAN MUNICIPALITY ....................................2ND APPLICANT

CITY OF TSHWANE METROPOLITAN

MUNICIPALITY ..........................................................................................3RD APPLICANT

SOUTH AFRICAN LOCAL GOVERNMENT

ASSOCIATION ...........................................................................................4TH APPLICANT

BUFFALO CITY MUNICIPALITY ...............................................................5TH APPLICANT

and

INDEPENDENT MUNICIPAL AND ALLIED

WORKERS UNION ................................................................................1ST RESPONDENT

SOUTH AFRICAN MUNICIPAL

WORKERS UNION ................................................................................2ND RESPONDENT

SOUTH AFRICAN LOCAL

GOVERNMENT BARGAINING COUNCIL ............................................3RD RESPONDENT

Date of Ruling: 21 October 2013

RULING: APPLICATION FOR LEAVE TO APPEAL

­­­­­­­­­­­­VAN NIEKERK J

[1] This is an application for leave to appeal against the whole of the court’s judgment delivered on 12 April 2013. First, apologies are extended to the parties for the delay in making this ruling – the result of a prolonged absence from the court occasioned by a combination of long leave and an acting appointment elsewhere.

[2] I do not intend to repeat the facts relevant to the application, nor the reasons for judgment. These are on record. First, to the extent that the applicant contends that the matter is one of substantial importance and that it has wider implications for the labour relations environment within the local government sphere, it ought to be recorded that this matter has been settled by a number of municipalities, including the first applicant, the City of Johannesburg, and the City of Cape Town. Indeed, it is only the second applicant that appears to be pursuing this matter. This is not a matter, as the applicant contends, of that is of national importance.

[3] The application is brought on three grounds. The first is that the court erred in dismissing the matter on the grounds of delay. To the extent that it is averred that the delay was fully explained in the papers, that none of the parties had raised the issue of delay and that none of the parties were called upon to explain the delay, the submissions in this regards overlook the fact that the court is entitled of its own accord to raise issues of delay, and especially a failure to prosecute an application with due diligence. The court also has the inherent power to dismiss an application where a delay in prosecuting the application has served to frustrate the interests of justice. This is especially so in the Labour Court, where the statutory imperative of expeditious dispute resolution requires parties to pursue their interests without delay. As reflected in the judgment, the application has its origins in arbitration proceedings initiated in 2005. The application was filed in 2006, but only enrolled by those of the applicants interested in pursuing the matter in 2013. The issue of unreasonable delay was pertinently raised by IMATU in its papers. The court was therefore obliged to deal with the point, which it did. There is nothing in the papers before the court then or in the submissions made in the present applicant that persuades me that another court might reasonably conclude that the applicant

prosecuted the application with due diligence.

[4] In so far as the ‘SALGA representation’ point is concerned, the applicant’s real concern is the mandating process within SALGA. As the relevant authorities reflect, this is not a basis on which a collective agreement may ordinarily be set aside. Once a worker or employer mandates a trade union or an employers’ organization respectively to further his or her interests, then the union or employers’ organisation is entitled to decide how best to act to discharge that mandate. The industrial relations system would be unworkable otherwise. In the present matter, what is particularly relevant is that the dispute that gave rise to these proceedings was a dispute to which SALGA was a party, not the individual applicants. While the settlement concluded by SALGA may not have been acceptable to some of its members, their real grievance is with SALGA, not the respondents in the main application.

[5] The third submission, as I understand it, is linked to the first. The applicant contends that the court erred in denying the parties to address evidence on the issue of delay before determining the matter on this basis. This submission overlooks the fact that delay was raised by way of a point in limine by IMATU, and that the fact relevant to the question of delay were the subject of explanations proffered by the applicant. In my view, there was sufficient notice and evidence upon which to decide the point relating to delay.

[6] For the above reasons, I am not persuaded that another court might reasonably come to a different conclusion.

For these reasons, I make the following order:

Leave to appeal is refused.

André Van Niekerk

Judge of the Labour Court