Da Gama Textile Company Ltd. v Regional Director, Department of Manpower (Port Elizabeth) and Another (644/89) [1991] ZASCA 75; 1991 (3) SA 530 (AD); (1991) 12 ILJ 787 (A) (30 May 1991)

IN THE SUPREME COURT OP SOUTH AFRICA

(APPELLATE DIVISION)

CASE NO. 644/89

In the matter between:DA GAMA TEXTILS COMPANY LIMITED APPELLANTAND

THE REGIONAL DIRECTOR, DEPARTMENT

OF MANPOWER (PORT ELIZABETH) FIRST RESPONDENT

AMALGAMATED CLOTHING AND TEXTILE

WORKERS UNION OF SOUTH AFRICA SECOND RESPONDENT

CORAM: CORBETT CJ, SMALBERGER, MILNE, FRIEDMAN, et GOLDSTONE JJA.

DATE HEARD: 24 May 1991 DATE DELIVERED: 30 May 1991

2 JUDGMENT

GOLDSTONE JAOn 14 October 1988 the Amalgamated Clothing and Textile Workers Union of South Africa ("the union") applied to the Regional Director, Department of Manpower in Port Elizabeth ("the regional director") for the establishment of a conciliation board to consider and settle a dispute in the textile industry in the district of East London. The alleged dispute was between the union and Da Gama Textile Company Limited ("Da Gama"). The application was made in terms of the provisions of section 35(1) of the Labour Relations Act 28 of 1956 ("the Act"). In terms of

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the application the dispute concerned the failure by Da Gama to:

"(a) recognise the union as the collective

bargaining representative of the company's weekly-paid employees;

(b) grant stop-order facilities to the union; (c) grant union officials access to company premises; and (d) recognise union shop stewards."

The regional director granted the application on 17 October 1988. During November 1988 Da Gama launched an application in the Eastern Cape Division. It claimed an order setting aside the establishment of a conciliation board. It also sought a declaration to the effect, inter alia, that the union had no locus standi on 14 October 1988 to make application for the estabiishment of a conciliation board in the district of East London. For the relief sought by it, Da Gama relied upon the fact, which was common cause, that prior to 1 November 1988 the scope of the registration of the union did not include the district of East London. Da Gama cited the regional director as

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the first respondent and the union as the second respondent.

In the Court a quo, and in this Court, the union

submitted in limine that as the application was for the review of a decision of an officer performing a quasi-judicial or administrative function it was obliged to comply with the procedure laid down in Rule 53 of the Uniform Rules of Court.The application was heard by Jansen J. He found against Da Gama on the merits and for that reason did not find it necessary to consider or decide the point jLn limine. His judgment, in which he dismissed the application with costs, is reported as Da Gama Textile Co Ltd v Divisional Inspector, Department of Manpower (Port Elizabeth),and Another 1989(3) SA 641(E). The learned Judge a quo refused an application for leave to appeal. A petition therefor to this Court succeeded. In view of the conclusion which I have reached on the merits, it similarly becomes unnecessary to consider or decide the point in limine.

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Section 35 of the Act makes provision for the establishment of conciliation boards. In terms of subsection(1), in so far as it is now relevant, an application therefor may be made:

"Whenever a dispute exists in any undertaking, industry, trade or occupation in any area, and the parties to the dispute are -

(a) one or more trade unions;

(b)

(c) ... on the one hand, and

(d)

(e) one or more employers;

(d) on the other hand ..."

Paragraph (c) of subsection (2) provides, inter alia, that:

"For the purposes of this section any reference to a trade union ... shall be construed as a reference to -

(i) a registered trade union ... or

(ii) a trade union ... which submits

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a prescribed certificate, issued by the registrar, stating that such trade union ... complies with the requirements of sections 4A, 8(5) (a)(i) and (ii) and 11(4)(a), as the case may be."

On behalf of Da Gama the submission is that the

reference in section 35 to "a registered trade union" must berestricted to a trade union "in respect of the interests and inrespect of the area" for which it was registered under theprovisions of section 4(3) of the Act. In support of thatsubmission counsel relied heavily upon an interpretation ofsection 4(2)(c) which he said requires the words "registeredtrade union" to be given a similarly restricted meaning. Insection 4(2)(c) are to be found the rather complicated provisionswhich apply when one trade union objects to the registration ofanother trade union. It is unnecessary to consider the detailthereof. I shall assume (without in any way deciding) that the

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interpretation of section 4(2)(c) contended for by counsel is correct. On that assumption, however, it does not follow that a similarly restricted meaning of the words "registered trade union" in section 35 is warranted. Indeed, there are weighty considerations which lead one to a contrary conclusion.The provisions of section 35(1) are cast in wide terms. They apply to a dispute existing in "any undertaking, industry, trade or occupation in any area". (My emphasis). The parties to such a dispute may be, inter alia, "one or more trade unions". As appears from subsection (2)(c), the reference to "a trade union" in section 35 includes "a registered trade union", The draftsman, who expressly defined the expression "trade union", in no way restricted the category of registered trade unions. Had that been the intention it could easily have been so stated as it was in sections 13(4) and 78(1 A)(a) of the Act. The plain meaning of the words used in section 35(2)(c) thus militates against the restricted interpretation contended for on behalf of

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Da Gama.

Apart from the linguistic considération, there are

anomalies which would arise if the words "registered trade union"

in section 35 were given the suggested restricted meaning. In

the first place it would result in an unregistered trade union

having an advantage over a registered trade union. The latter

would not be restricted to any particular area or interests.

That follows from the provisions of section 35(2)(c)(ii) in terms

of which an unregistered trade union may apply for the

establishment of a conciliation board. In order to do so, it

must submit a certificate from the industrial registrar stating

that it complies with the requirements of sections 4A, 8(5)(a)(i). and (ii) and 11(4)(a), ie that it:

(a) has submitted to the registrar a copy of its constitution and furnished him with its head office address and the names of its office-bearers and officials;

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(b) has maintained a register of members; (c) has kept proper books of account; and (d) has a head office situated in the Republic.

Those are some of the requirements with which all registered trade unions also must comply. Ex hypothesi an unregistered trade union would not have any limited or defined interests or area (apart from any relevant provisions in its constitution). Counsel for Da Gama sought to avoid this anomaly by submitting that a registered trade union might also gualify under section 35(2)(c)(ii) if it submits the certificate referred to therein. In my opinion, subparagraph (ii) of section 35(2)(c) clearly applies only to unregistered trade unions. That is abundantly clear from the construction and content of the subsection. Apart from any other consideration, a registered trade union will necessarily have complied with the statutory provisions referred to in section 35(2)(c)(ii), and to require a certificate with regard thereto would be superfluous.

Counsel for Da Gama correctly conceded that a

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registered trade union has a legal status and personality conferred upon it by section 5 of the Act which operates throughout the Republic. Section 11(5) assumes that the constitution of a registered trade union may provide for the establishment by it of branches. When that happens, the names and addresses of the chairman and secretary thereof and particulars of its membership must be furnished to the registrar within a specified period of time. And paragraph (e) of the definition of "unfair labour practice" in section 1 of the Act assumes that a trade union may recruit members. There is no suggestion that in the case of a registered trade union it may do

so only in respect of an interest or in the area for which it has been registered. It follows that a registered trade union may become a party to a dispute with an employers' organisation or an employer in an area or in respect of an interest other than those for which it has been registered. Indeed that is what occurred in the present case. The union established a branch in

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East London before it became registered in respect of that area. Its alleged dispute there is with Da Gama. It would be anomalous if a registered union was precluded from applying for the establishment of a conciliation board in respect of such dispute. It would also be inconsistent with the policy implicit in the Act, namely that industrial peace should be preserved and that the mechanisms provided by the Act should be used by the principal actors on the industrial scene. One such principal actor is a registered trade union. In 1983 the legislature, in respect of section 35, introduced a new actor in the form of an unregistered trade union. The policy is thus to widen the scope for industrial actors to refer a dispute which could endanger industrial peace to a conciliation board: see Cameron, Cheadle and Thompson, The New Labour Relations Act, at 19.Yet a further anomaly which could arise on the restricted interpretation contended for relates to trade unions which were registered prior to the promulgation of the Industrial

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Conciliation (Amendment) Act, 24 of 1930. Those unions were registered with national status and not for particular areas and interests. In terms of section 2(4) of the Act (ie the 1956 Act) every trade union which was established prior to the commencement thereof is deemed to be registered under the Act. Such trade unions, like unregistered trade unions, would also have an advantage over all trade unions registered after the promulgation of the 1930 Act. It is unlikely that such an illogical distinction could have been contemplated or intended by the legislature.It follows, in my opinion, that the learned Judge a quo correctly held that the words "registered trade union" in section 35 of the Act refer to all trade unions registered under the Act and not only to those which may have been registered for interests in respect of which or areas in which a dispute may have arisen. The appeal therefore must fail.

Costs of two counsel are sought by the union. In my

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opinion the interpretation of the Act is not a simple matter and the issue raised in this appeal is of substantial importance to all registered trade unions. The employment of two counsel, in my judgment, was justified.The appeal is dismissed with costs, including the costs of two counsel.

R J GOLDSTONE

JUDGE OF APPEAL

CORBETT CJ)SMALBERGER JA)MILNE JA) CONCUR

FRIEDMAN JA)