National Union of Metal Workers Of South Africa (NUMSA) obo Its Members v MIS Engineering (Pty) Ltd t/a MITAK and Others (JR 2841/2019; JR 2743/2019; JR 1026/2021) [2022] ZALCJHB 148; (2022) 43 ILJ 2075 (LC) (4 October 2022)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Case No: JR 2841/2019

JR 2743/2019

JR 1026/2021

In the matter between:

NATIONAL UNION OF METAL WORKERS OF

SOUTH AFRICA (NUMSA) obo ITS MEMBERS APPLICANT

And

MIS ENGINEERING (PTY) LTD t/a MITAK FIRST

RESPONDENT

MATSHAKA, LUNGILE N.O. SECOND

RESPONDENT

METAL AND ENGINEERING INDUSTRIES

BARGAINING COUNCIL (MEIBC) THIRD

RESPONDENT

In re.

NATIONAL UNION OF METALWORKERS

OF SOUTH AFRICA (NUMSA) FIRST

APPLICANT

CHRISTOPHER NGCONGO &

OTHERS SECOND

AND FURTHER

APPLICANTS

TRANSVAAL GALVANISERS (PTY) LTD FIRST

RESPONDENT

MNISI, TUMELO N.O. SECOND

RESPONDENT

SOUTH AFRICA FIRST

APPLICANT

obo

THULANI NKUNA & 40 OTHERS SECOND

TO FURTHER

IMAB ENGINEERING (PTY) LTD FIRST

RESPONDENT

MOHAMED RAFFEE N.O. SECOND

RESPONDENT

BARGAINING COUNCIL THIRD

RESPONDENT

Decided in Chambers

Delivered: 04 October 2022

(In view of the measures implemented as a result of the Covid 19 pandemic, this judgement was handed down electronically by circulation to the parties’ representatives, by email. The date on which the judgment is delivered is deemed to be 04 October 2022.)

RULING: APPLICATION FOR LEAVE TO APPEAL

VAN NIEKERK, J

[1] The applicant applies for leave to appeal against the judgment delivered by this court on 14 June 2022, when an application for review filed by the applicant was dismissed. The applicant contends that the court erred in finding on the facts that the union was precluded from referring particular disputes to conciliation at the MEIBC, by virtue of the MEIBC’s constitution. Secondly, and conversely, the applicant submits that the court ought to have found, on the facts, that the union was not precluded from referring the disputes concerned to the MEIBC for conciliation.

[2] The test to be applied is established by section 17 (1) of the Superior Courts Act, 2013. The court must determine whether the appeal would have a reasonable prospect of success, or whether there is some other compelling reason why the appeal should be heard. In Seatlholo and others v Chemical Energy Paper Printing Wood and Allied Workers Union and others (2016) 37 ILJ 1485, the court said the following:

… the use of the word “would” in s17 (1) (a) (i) is indicative of a raising of the threshold since previously, all that was required for the applicant to demonstrate was that there was a reasonable prospect that another court might come to a different conclusion (see Daantjie Community and others v Crocodile Valley Citrus Company (Pty) Ltd and another (75/2008) [2015] ZALCC 7 (28 July 2015). Further, this is not a test to be applied lightly – the Labour Appeal Court has had occasion to observe that this court ought to be cautious when leave to appeal is granted. The statutory imperative of the expeditious resolution of

labour disputes necessarily requires that appeals be limited to those matters in which there is a reasonable prospect that the factual matrix could receive a different treatment or where there is some legitimate dispute on the law.

[3] More precisely stated, the court must determine whether there is a reasonable prospect that the factual matrix would receive a different treatment or where there is some legitimate dispute on the law (see Martin & East (Pty) Ltd v NUM (2014) 35 ILJ 2399 (LAC); Acting National Director of Public Prosecutions & Others v Democratic Alliance In re: Democratic Alliance v Acting Director of Public Prosecutions & Others [2016] JOL 36123 (GP); Mothuloe Inc. Attorneys v The Law Society of the Northern Provinces & Another [2017} ZASCA 17 (22 March 2017), where the raising of the bar in applications for leave to appeal has been affirmed). In this court, there is an additional consideration. In the Martin & East judgment, Davis JA urged labour courts to take care to ensure a balance between expeditious dispute resolution and the rights of the party seeking leave to appeal.

[4] In the present application, the applicants do not contend that there is any legitimate dispute of law. They rely on the prospect of another court giving the factual matrix a different treatment.

[5] The court held that the MEIBC panelists in all three cases correctly ruled that they did not have jurisdiction to conciliate wage disputes between the union and individual employers represented by SAEFA at industry level. The court found first, that under the MEIBC constitution, only centralised bargaining on wages and substantive conditions of employment is permitted, there being no plausible interpretation of the constitution that permits two-tier bargaining. Secondly, the court found that in terms of the constitution, only the MEIBC’s MANCO was empowered to refer wage disputes to conciliation; it was not open to the union to refer a wage dispute to conciliation.

[6] The applicant does not take issue with these findings, unsurprisingly so given its concession that plant level bargaining is not permitted within the MEIBC, and its acceptance of the binding terms of the dispute resolution collective agreement.

[7] In short, there is no meaningful and substantiated challenge to the finding that the panelists concerned did not have jurisdiction to conciliate the disputes. There is no realistic prospect of another court finding to the contrary. To the extent that the applicant relies on Dept. of Home Affairs v PSA (2017) 38 ILJ 1555 (CC), that decision is not authority for the proposition that a panelist may conciliate a dispute even where they have no

jurisdiction to do so – on the contrary, the court refused leave to appeal because in that case, there was no doubt that the conciliator had jurisdiction to conciliate. In the present instance, for the reasons recorded in the judgment that is the subject of this application, there was no basis on which the panelists could have performed conciliation functions under the MEIBC constitution or the dispute resolution collective agreement.

[8] Finally, there is no reason why costs ought not to follow the result.

I make the following order:

1. The application is dismissed, with costs.

André van Niekerk

Judge of the Labour Court of South Africa