Justice for All Workers of South Africa v Molefe NO and Another (J709/23) [2023] ZALCJHB 166; (2023) 44 ILJ 1726 (LC) (30 May 2023)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Reportable

case no: J709/23

In the matter between:

JUSTICE FOR ALL WORKERS OF SOUTH AFRICA (JAWSA) Applicant And ADVOCATE LEHLOHONOLO MOLEFE N.O First Respondent THE DEPARTMENT OF LABOUR AND EMPLOYMENT Second Respondent

Heard: 25 May 2023

Delivered: 30 May 2023

Summary: An application to force a department to perform its statutory duty (mandamus). Section 96 of the Labour Relations Act (LRA) interpreted. Where a party approaches a Court for a mandamus predicated on a wrong interpretation of the statutory provision allegedly creating an obligation not complied with, acts recklessly and attracts an order of costs.

Ethical conduct of practitioners after the Court has retired to consider its judgment. It is unethical for a practitioner to address

correspondence to a judge without inviting the other practitioner and seeking specific orders. Held: (1) The application is dismissed.

Held: (2) The applicant must pay the costs of the application.

JUDGMENT

MOSHOANA, J

Introduction

[1] With the advent of our constitutional democracy, no one is above the law. In terms of section 209 of the Labour Relations Act[1] (LRA), the LRA binds the State. A mandamus is a Court order that compels a public authority to perform a public or statutory duty. It is a common law remedy that has been in place as far back as 1864. This remedy owes its origin to the Kings of England. A writ of mandamus may be issued in favour of a person who establishes a legal right for himself or herself. It may be used against a person who has a legal duty to perform but has failed or has neglected to do so. Such a legal duty emanates by operation of law. The object of mandamus is to prevent disorder emanating from a failure of justice and is required to be granted in all cases where the law has established no specific remedy.[2]

[2] In modern days, mandamus is intertwined with accountability. Mandamus is a command. Section 195 (f) of the Constitution of the Republic of South Africa, 1996 decrees that a public administration must be accountable. In my view, being forced to perform statutory duties through a Court order has a huge taint of embarrassment. That being the case, a party seeking a mandamus must be certain that the statutory provision relied on indeed places a duty it seeks to enforce.

[3] That said, before me serves an urgent application, in terms of which an unregistered trade union applicant, Justice For All Workers of South Africa (JAWSA) seeks an order to compel the Registrar of Labour Relations (Registrar) and the Department of Labour and Employment (DoLE) to comply with the statutory provisions of section 96 (4), (5) and (6) of the LRA by issuing a decision. I pause to state that, this not being a Promotion of Administrative Justice Act[3] (PAJA) review, in terms of section 6 (2) (g) of PAJA, a Court may review an administrative action if the action concerned consists of a failure to take a decision. More about this later. JAWSA interpreted certain provisions of section 96 of the LRA and concluded that the Registrar was obliged to take a decision within a period of 30 days. This despite being informed by the Registrar that it had 90 days within which it would be required to take a decision. The application is duly opposed by the DoLE and the Registrar.

[4] After hearing submissions, this Court retired and reserved its judgment. Whilst the Court was mulling over the issues debated with counsel and considering its judgment, correspondence addressed to the registrar of this Court care of the Judge or his secretary arrived. I pause to mention that the other parties to the present motion, as legally represented by the State Attorney, were not copied in that correspondence. In due course, this Court shall address itself to this conduct. The following salient issues were communicated in that correspondence:

1. The matter was moot and an order is unnecessary from the Court with regard to the interpretation of the relevant provisions of the LRA;

2. A letter from the Registrar dated 25 May 2023 was annexed refusing JAWSA registration as a trade union;

3. Allegation made that the respondents were mala fide by not advising the Court that a decision was already made;

4. Had JAWSA been advised, it would have withdrawn the application;

5. Given the mala fide conduct, the Court must award costs against the respondents or call upon the parties to appear only to address the issue of costs.

[5] For reasons that shall follow hereunder, this Court continued to consider its judgment on the matter, the above notwithstanding.

Background facts

[6] It is apparent that in 2022, JAWSA has been operating as a trade union and had attempted to represent its members before bargaining councils. However, on the version of its General Secretary, JAWSA was officially launched on 11 March 2023. On 31 March 2023, it submitted its application for registration as a trade union to the Registrar for consideration. On 3 April 2023, the Registrar advised JAWSA that its application does not meet the requirements and afforded JAWSA 30 days to attempt to meet the requirements.

[7] The letter from the Registrar dated 3 April 2023, listed no less than 14 requirements to be met. It is unnecessary in this judgment to list all those requirements. It suffices to mention that a whole lot of documents were required to be furnished. The General Secretary barely alleged that on 17 April 2023, he attended to the office of the Registrar “to submit the outstanding documents as per the letter of 03 April 2023. The outstanding documents were duly received by the respondent”. I pause to mention that although the respondents noted this allegation, the General Secretary attached nothing to support such a critical allegation. Based on its interpretation of the relevant section, JAWSA timed its action and expected a decision to be made within 30 days reckoned from 3 April 2023. True to form, on 4 May 2023, it made enquiries for the decision which was, in its exuberant, view due at that time. On 5 May 2023, the Registrar responded and indicated that it has reserved for itself 90 days to give a decision. JAWSA took umbrage to this position and on 18 May 2023, it launched the present application and enrolled it before me on 25 May 2023.

Evaluation

[8] Although this Court was not satisfied that JAWSA was entitled to an urgent relief, this Court exercised its wide discretion and entertained the merits of this application on an urgent basis. This Court takes the view that this application raises an important issue of a proper interpretation of section 96 of the LRA. It may well be so that there are other applicants or aspirant applicant trade unions who, like JAWSA, misinterpret the section. Therefore, in the interest of justice and for posterity’s sake, a decision from this Court is mandatory in my view. With the limited duration at its disposal, this Court was unable to lay a hand on an authority from this Court or the Labour Appeal Court that interpreted the section. The Court enquired from Mr Tooka, who appeared on behalf of JAWSA, as to whether he had any authority to endure the interpretation he punted for. He was of no assistance in that regard. Equally, counsel for the Registrar and the DoEL, Mr. Phambuka left the Court none the wiser.

[9] For contextual purposes, this judgment shall expound certain provisions of section 96 of the LRA. Those are:

‘…

(2) The registrar may require further information in support of the application.

(3) The registrar –

(a) Must consider the application and any further information provided by the applicant; and

(b) If satisfied that the applicant meets the requirements for registration, must register the applicant by entering the applicant’s name in the register of trade unions…

(4) If the registrar is not satisfied that the applicant meets the requirements for registration, the registrar –

(a) Must send the applicant a written notice of the decision and the reasons for that decision; and

(b) In that notice, must inform the applicant that it has 30 days from the date of the written notice to meet those requirements.

(5) If, within that 30-day period, the applicant meets the requirements for registration, the registrar must register the applicant…

(6) If, within that 30-day period, an applicant has attempted to meet the requirements for registration but the registrar concludes that the applicant has failed to do so, the registrar must –

(a) Refuse to register the applicant; and

(b) Notify the applicant in writing of that decision.’

[10] JAWSA contended that the decision contemplated in subsection (6) must be made within a period of 30 days. That, in my view, is a wrong interpretation of the subsection. In order to illuminate the wrongfulness of the interpretation, subsection (4) (b) refers to “it has 30 days”. The word it, to my mind, is an applicant trade union, in this instance JAWSA. So it is JAWSA that has 30 days and not the Registrar, as forcefully

submitted on behalf of JAWSA. It is common cause that on 3 April 2023, the Registrar had, within the contemplation of subsection (4), expressed its dissatisfaction with the application. Therefore, JAWSA and not the Registrar had 30 days to satisfy the Registrar. Before the expiry of the grace period (30 days), it seems, on JAWSA’s version, it attempted to meet the requirements on 17 April 2023. That attempt does not mean that the Registrar had 30 days to make a decision. Within the contemplation of subsection (6), the Registrar needed to first make a conclusion. The subsection does not place a time period within which the Registrar must make that conclusion. As it turned out, on 25 May 2023, the Registrar made that conclusion. The conclusion is that JAWSA failed to meet the requirements, hence the decision to refuse registration.

[11] Nowhere in the provisions of section 96 are the decisions and conclusions of the Registrar timed. Du Toit et al in their work “Labour Relations Law: A Comprehensive Guide” correctly observed that the Registrar enjoys no unfettered discretion[4]. His or her discretion is circumscribed by the provisions of section 95 (1). JAWSA is, in my view, wrong in its interpretation that the Registrar was statutorily compelled to make a decision within a 30-day period. Accordingly, a mandamus cannot be issued in circumstances where there is no statutory duty to give a decision within a prescribed period.

[12] However, it is my considered view that the decision to register or refuse to register a trade union amounts to an administrative action within the meaning of section 1 of PAJA. As a general rule, where a time to take an administrative decision is not prescribed, the decision maker is bound by the unreasonable delay rule. Thus, the decision must be taken within a reasonable time. A 90-day period falls within the bands of reasonableness. It need not be prescribed by legislation as JAWSA demanded to be told[5]. Therefore, when the Registrar told JAWSA that it had 90 days to consider the application for a decision, such was a reasonable period within which to take a decision. Nevertheless, as it turned out, the Registrar took the required decision way before the expiry of the 90-day period. In any event, if JAWSA took a view, which view would have been unreasonable in my view, to challenge the “delay” to take an administrative decision, its remedy laid in section 6 (2) (g) of PAJA[6]. Even if this Court were to reckon the period from 17 April 2023, by the time (18 May 2023) JAWSA approached this Court for an order to compel, hardly two months had elapsed. Therefore, even if this Court were to charitably consider the present application as a judicial review for failure or refusal to take a decision, the application would still fail because no unreasonable period had passed.[7]

[13] As I conclude, JAWSA, as an aspirant trade union, needed to carefully and guardedly consider the provisions of section 96 before concluding ebulliently that the Registrar is to be compelled. On any interpretation of the section, a duty to decide within 30 days as contended for by JAWSA does not remotely emerge. Accordingly, this application falls to be dismissed. What then remains is the issue of costs. Before this Court addresses the issue of costs, it behoves it to consider the conduct by JAWSA and its legal team, which conduct played a role in the awarding of costs in this matter. It is a conduct that derides the ethical standards of

lawyers.

Unethical conduct

[14] When a Court retires to consider its judgment, a matter that is fully argued is, in effect, completed. It is indeed so that until judgment, parties may still procedurally do certain things like an amendment of a pleading. However, it is unethical for a party

to singularly approach a judge after completion of pertinent argument to surreptitiously seek some ancillary reliefs like costs and still cast aspersions about another party. The correspondence of 25 May 2023 has not been copied to the State Attorney nor the counsel on brief, who made an appearance in Court, yet mala fide is alleged on the part of the respondents. This conduct smacks of unethical conduct. One of the grizzled ethical rules is that no one counsel may approach a judge in chambers without an opponent. This letter, having not been copied to the State Attorney or the counsel on brief, equates the practice of one counsel approaching a judge in chambers without an opponent.

[15] The author of the correspondence commanded the audacity to allege mala fides on the part of the respondents. This aspersion is groundless and shaky by all accounts. The author seeks to hide behind the allegation

of the belated letter for the meritless application. The present application was a non-starter. It was never on terra firma from the get-go, since it was predicated on an erroneous interpretation of the law. It was doomed to fail ab initio. Lawyers must maintain the highest standard of honesty towards other lawyers. The suggestion that the respondents were mala fide is not based on any scintilla of objective facts, thus it was dishonestly made, with the solitude view to lay inculpate of not withdrawing a palpably frail application

at the doorsteps of the respondents. This is not only inappropriate but it also smacks of unethicality.

[16] The only irresistible conclusion to reach is that the author of this correspondence has acted unethically. Having so acted, he amassed the audacity to demand an argument on costs, with full knowledge that the issue of costs pertinent to the present application was argued fully. Yet another deride. The invitation to consider some other decoupled costs issue is rebuffed by this Court.

The issue of associated costs

[17] When it comes to costs, this Court retains a wide discretion under section 162 of the LRA. The present application is a completely unfair litigation instituted against a State Department. A party cannot first misinterpret the law and afterwards drag a public official at the expense of the taxpayers to Court in order to defend its wrong interpretation of the law and expect to escape unscathed. Had JAWSA carefully and properly interpreted the law, this present application would have not been conceived. It was not about being told where the source of the 90 day period lay, as argued. There is no on-going relationship between JAWSA and the respondents. This is not a case of an individual seeking to enforce its fundamental rights against the State. No constitutional issue was raised by JAWSA[8]. This is a sheer vexatious and frivolous litigation, rooted in what appears to be a deliberate misconception of the law. Regard being had to the conduct of JAWSA and its legal team, an award of costs is warranted. This Court was almost tempted to award punitive costs as the conduct of JAWSA and its legal team was dithering on egregiousness. That notwithstanding, an order of costs is nevertheless warranted, taking into account the slovenliness involved in this application, from conception up to presentation.

[18] In the result, the following order is made:

Order

1. The application is dismissed.

2. The applicant, JAWSA, must pay the costs of this application.

G. N. Moshoana

Judge of the Labour Court of South Africa.

Appearances:

For the Applicant: Mr L Tooka of BMA Inc, Kemptonpark.

For the Respondents: Mr N Phambuka

Instructed by: State Attorney, Pretoria.

[1] Act 66 of 1995, as amended.

[2] See: Union of India v S B Vohraxi Appeal (civil) 2887 of 2001.

[3] Act no 3 of 2000.

[4] D du Toit, D Bosch et al, “Labour Relations Law: A Comprehensive Guide”, 6th ed (LexisNexis) 2015 at p236.

[5] Mr Tooka submitted in Court that had the Registrar told JAWSA where it acquired the 90 days from, it would not have launched the present application. The Registrar was not compelled to do so. The enabling legislation does not put a time frame for its decision. That is where the matter begins and ends for JAWSA.

[6] Vumazonke v MEC For Social Development, Eastern Cape, and three similar cases 2005 (6) SA 229 (SE)

[7] See Sibiya v Director-General: Home Affairs and others, and 55 related cases 2009 (5) SA 145 (KZP) at para 16.

[8] Biowatch Trust v Registrar Genetic Resources and others 2009 (10) BCLR 1014 (CC).