Hotel Liquor Catering, Commercial and Allied Workers Union v Sheriff, Johannesburg and Others (J406/14) [2014] ZALCJHB 267 (28 July 2014)

REPUBLIC OF SOUTH AFRICA

THE LABOUR COURT OF SOUTH AFRICA,

IN JOHANNESBURG

JUDGMENT

Of interest to other judges

Case no: J 406/14

In the matter between:

HOTEL LIQUOR CATERING, COMMERCIAL AND ALLIED WORKERS UNION Applicant And THE SHERIFF, JOHANNESBURG First Respondent GOOD LOGISTICS SOLUTIONS Second Respondent CARELSE KHAN ATTORNEYS Third Respondent

JUDGMENT ON APPLICATION FOR LEAVE TO APPEAL

LAGRANGE, J

Introduction

[1] On 24 June 2014 judgement was handed down and the following order was made:

“ Order

20. In light of the above analysis,

20.1The execution of the writ issued under case number C440/2010 on 29 November 2013 is stayed pending the outcome of an application to rescind the cost order in the same matter, which must be filed with the registrar of the Labour Court in Cape Town.

20.2 The order in paragraph 20.1 above shall lapse automatically if the applicant fails to file the said rescission application by 24 July 2014.

20.3 No order is made as to costs.”

[2] The applicant in the matter has applied for leave and the second and third respondents have filed submissions opposing the application.

[3] In short, the union was seeking a permanent stay of the execution of an award of costs against it under case number C440/2010 in terms of which the Honourable Justice Steenkamp had dismissed a review application, ostensibly brought by the union on behalf of a member, on an attorney own client scale.

[4] Instead of applying for interim relief pending the outcome of a rescission application to set aside the judgement, the applicant merely applied to set aside the execution of the writ principally on the basis that it had not been a party to the review application which it had never authorised and that in any event the cost order was only enforceable against the individual applicant in the review application.

[5] I decided that, on the basis of the authorities, on the face of it the union was a party to those proceedings and accordingly the cost award could be executed against it, unless that order was rescinded. Secondly, there appeared to be sufficient evidence to cast doubt on whether the union had genuinely been a party to the review proceedings. As it seemed that there was a possibility the union might succeed with a rescission application, even though it ought to have launched it previously, I made an order which gave it a reasonable opportunity to do so, failing which the execution of the writ would no longer be stayed. Instead of using that opportunity, the applicant has instead applied for leave to appeal. The grounds of appeal are dealt with briefly below.

[6] The applicant contends that the court incorrectly followed the authority of Manyele and others v Maizecor (Pty) Ltd and another (2002) 23 ILJ 1578 (LC) that when a union acted on behalf of a member in terms of section 200 (1)(b) of the LRA it was not a party to proceedings but only acting in a representative capacity. The basis for the alleged error in my reasoning is that the case cited did not analyse section 162 (c) of the LRA and that section 200 had to be interpreted holistically and consistently with section 162. The applicant cites no authority why the dictum in Manyele’s case to the effect that a union is a party to the proceedings when it acts under section 200 (1) (b). It may be that the purported union official who appeared in the review application was supposedly appearing in a dual capacity for the union and the alleged union member under sections 200(1)(b) and (c) respectively. However the essential question in the matter, on which the ratio turns, was whether the union on the face of it was a party to the review application, which depended wholly on the interpretation of s 200(1)(b) and not on the interpretation of s 161(b) and (c). There is nothing about the need for consistency between section 200 and section 161, which would alter this.

[7] If the applicants had pointed the court to conflicting Labour Court authority on the interpretation of s 200(1)(b) as far as it concerns the union’s status as a party to proceedings when it acts on behalf of a member, I might have been willing to grant leave to appeal for the Labour Appeal Court to decide the issue. In the absence of conflicting authority there is no justification for doing so.

[8] The applicant also argues that the judgement second-guessed the order of Steenkamp J. It is not clear entirely what is meant in this regard because the reasoning which is advanced in the applicant’s submissions is premised on the argument that the union was not appearing as a party but only in a representative capacity. It was the union itself which asked the court to determine that the cost order in the judgement of Steenkamp J could not be executed against it because it was not a party to the matter, but only acting in a representative capacity. Determining that issue did not entail second guessing the decision of Steenkamp J

or his order, but an interpretation of section 200(1)(b).

[9] The applicant further contends that I failed to appreciate that a cost order de bonis propriis is one that should be specifically requested. With the greatest respect to the applicant this issue had no bearing on my decision and might only be relevant as a secondary matter which arises if the union was found not to be acting as a party in its own right.

[10] Lastly, the applicant argues that the court erred in finding that the correct process to follow in addressing its complaint was to seek to set aside the underlying causa of the cost order by applying to rescind it. It argues that it has no locus standi as a non-party in the case before Steenkamp J to institute rescission proceedings. Apart from the fact that the applicant never raised this point when the issue of rescinding the original order was canvassed at the hearing of the matter, the proposition is plainly wrong. Section 165 of the LRA permits “any affected party” to bring such an application. Clearly the applicant is affected because in consequence of that order it was having a cost order executed against it.

[11] Why the applicant has not taken use of the opportunity provided to bring such an application is difficult to understand, if its claim that the purported union official was fraudulently misrepresenting his status and his authority to act for the union is a good one.

[12] In light of the above, I do not think the applicant has provided me with cogent reasons why another court might come to a different conclusion.

Order

[13] The application for leave to appeal is dismissed with costs.

_______________________

R LAGRANGE, J (In Chambers)

Judge of the Labour Court of South Africa

28 July 2014