South African Commercial Catering and Allied Workers Union v Massdiscounters (Pty) Ltd and Another (J 675/21) [2021] ZALCJHB 178 (3 August 2021)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: J 675/21

In the matter between:

SOUTH AFRICAN COMMERCIAL CATERING AND

ALLIED WORKERS UNION Applicant

and

MASSDISCOUNTERS (PTY) LTD

T/A GAME.

First Respondent

MASSMART HOLDINGS LTD Second Respondent

Heard: 2 August 2021 (In chambers)

Delivered: 3 August 2021 (Delivered electronically)

Summary: Application for leave to appeal – applicable test – opinion that the appeal would have a reasonable prospects of success or there are compelling reasons why the appeal should be heard. Where the test is not met leave to appeal should be refused since the law as it stands now it can be given only when the test is met. In casu – (a) the opinion is that the appeal would not have any reasonable prospects of success and (b) there are no compelling reasons for the appeal to be heard. Held (1): The application for leave to appeal is dismissed. Held (2): The applicant to pay the costs of the application.

JUDGMENT – LEAVE TO APPEAL

MOSHOANA, J

Introduction

[1] This is an application seeking leave to appeal against the whole judgment handed down by this Court on 29 June 2021. The application is duly opposed by the respondents.

The grounds appeal

[2] A limited number of grounds (as dealt with below) are raised in support of this application. In brief the applicant contends that this Court erred in relation to the issue of non-joinder; the manner in which the facilitation was handled and the issue of costs.

The test for leave to appeal

[3] It is by now settled that the Labour Court is a Superior Court and the provisions of the Superior Court Act (SCA) applies to it. Section 16 (1) (a) of the SCA specifically provides that an appeal lie upon leave having been granted. Section 17 (1) deals with the relief of leave to appeal. In terms thereof, leave to appeal may be granted only where a judge is of an opinion that (a) the appeal if granted would and not may have a reasonable prospects of success or (b) there is some compelling reason why the appeal should be heard, including, as a reason, conflicting judgments on the matter under consideration.

[4] It has been confirmed that the use of the words only and would implies that the threshold is set high. To a point that this Court must grant leave in instances where a definitive prospect exists that the appeal would succeed. As matter of general principle, appeal Courts are more concerned with questions of law. The only possible legal question applicable in this matter is whether the Facilitation Regulations require four meetings or less meetings suffices.

The grounds considered

The issue of non-joinder

[5] The applicant now contends that the CCMA and the facilitator ought to have been joined in the application it launched. As a matter of logic an applicant in any proceedings is a dominus litis. In other words the applicant becomes the master of the suit. The main determining factor whether a party must be a party to any proceedings is where a relief is sought against that person. The general rule is that no Court may make an order against anyone without giving that person the opportunity to be heard.[1] This Court agrees with a submission that the issue of non-joinder is raised opportunistically. In the notice of motion prepared by the applicant, through legal assistance, I must emphasise, the applicant consciously chose not to cite the CCMA and the facilitator as parties to the proceedings. Most importantly no orders were sought against the CCMA or the facilitator. This Court itself mentioned the issue of non-joinder in obiter dictum and made no order(s) against either the CCMA or the facilitator or both.

[6] It is settled law that an appeal does not lie against the reasons for an order but against the order[2]. As indicated above, this Court did not make any order against the CCMA or facilitator. All it did was to comment in passing that perhaps a non-joinder as a special defence should have been raised by the respondents. Having not been raised and decided upon by this Court, it is inappropriate for the applicant to now suggest, as it were, that the CCMA and the facilitator had a substantial interest in the matter. If they did have, why were they not cited in the main application?

[7] The conclusion I reach is that the higher Court will not actually entertain this ground since it did not arise in this Court and does not form part of this Court’s order. For these and the other reasons mentioned above, this ground cannot support the granting of leave to appeal.

The issue of the facilitation

[8] The applicant takes a view that since the parties have not agreed to a lesser number of meetings than those prescribed in the regulations, this Court must have accepted the version of the respondents that no such agreement was reached. This view seem to be oblivious of a pertinent and not attacked finding by this Court that although facilitation has its advantages, it is not one to be imposed to the consulting parties. Therefore, even if it can be found that the parties did not agree to a lesser number of meetings, the higher Court cannot reach a conclusion that the consulting parties are legally compelled to have a facilitated consultation. Equally, a Court cannot compel the parties to return to an abandoned facilitated process, particularly in instances where the abandonment was initiated by the applicant in full recognition of the fact that the fourth meeting had not taken place. Accordingly no Court may reach a conclusion different to the one reached by this Court.

[9] With regard to the application of section 189A (8) of the LRA, no higher Court would reach a conclusion that section 189A (7) did not empower the respondents to issue a dismissal notice. Section 189A (5) is predicated on the appointment of a facilitator. Where a facilitator is discharged, as it was done in this case, the provisions do not find application.

[10] With regard to the collective agreement, it was conceded by the applicant’s counsel that the applicant seeks an interpretation of clause 8.6, which if interpreted in its favour a particular process is to be undertaken, which process was not undertaken, which failure to undertake it renders the process to be procedurally unfair. The duty to interpret or apply collective agreements has been delineated to the Commission by the LRA. The issue regarding the non-implementation of an agreed selection criterion is a matter of substantive fairness. Accordingly no higher Court would arrive at a different conclusion.

The finding on costs.

[11] As a point of departure when ordering the payment or non-payment of costs a Court exercises judicial discretion. It is by now trite that higher Courts are loath to interfere with an exercise of discretion. Recently, the Labour Appeal Court affirmed this principle in AMCU v Minister of Mineral Resources and Energy and others (AMCU)[3] In particular terms, Molefe AJA writing for the majority stated the law as follows:

“[38] In making its order of costs, the Labour Court enjoyed a wide discretion, and this court will only interfere with the Labour Court’s discretion if it finds that in exercising the discretion the court “acted capriciously or applied the law incorrectly”.

[12] This Court in the main action did not simply apply the practice of costs following the results. It is important to categorically state that the principle, norm or practice of costs following the results springs deep from the common law. Impeccably, the norm or rule was defined by Clarke J in Veolla Walter UK plc v Fingal Country Council (No 2)[4] to be:

“[T]he overriding starting position should remain that costs follow the event. Parties who are required to bring a case to court in order to secure their rights are, prima facie, entitled to the reasonable costs of maintaining the proceedings. Parties who successfully defend proceedings are, again prima facie, entitled to the costs to which they have been put in defending what, at the end of the day, the court has found to be unmeritorious proceedings.

[13] It is beyond question that what drives application of this norm or rule is success of a party and nothing more. In other words once a party succeeds it follows axiomatically that a costs order must be made. It is this automatic success of a party norm, I would call it, that the Constitutional Court unwaveringly concluded in two of its judgment (Zungu and Long) that it finds no application in the Labour Court. In simple terms, the Constitutional Court decreed that the Labour Court must not be actuated by success of a party only in order to award costs.

[14] In casu, this Court did not make an order of costs simply actuated by success of a party. In applying section 162 of the LRA, as set out in paragraph 38 of the main judgment, it did set out the factors that drove it to the issue of costs. The conduct of the respective parties is obviously relevant especially when considerations of fairness are concerned. Accordingly, no higher Court can arrive at a conclusion that this Court applied wrong legal principles. The applicant places reliance on the recent judgment of McGregor v PHSDSBC and others[5]. What the applicant seems to ignore is that what the Constitutional Court stated is that the Labour and Labour Appeal Courts followed the success of a party principle only which was incorrect. In casu, as pointed out above, this Court did not simply follow the success of a party principle.

The on-going relationship principle.

[15] It is important to remind ourselves that this phrase or factor was coined by the Supreme Court of Appeals in the much celebrated judgment of NUM v East Rand Gold and Uranium Company Ltd (Ergo)[6]. After quoting with approval the sentiments expressed by D A Basson AM in Chamber of Mines of SA v Council of Mining Unions[7], in precise terms, Goldstone JA, writing for the majority, stated the position thus:

“[4] Frequently, the parties before the industrial court will have an on-going relationship that will survive after the dispute has been resolved by the court. A costs order, especially where the dispute has been a bona fide one, may damage that relationship and thereby detrimentally [a]effect industrial peace and the conciliation process.

[16] It is important to emphasise that the Industrial Court in Chamber of Mines had in mind the individual applicant employees who cannot afford to run the risk of having to pay the other side’s costs, when it discouraged the principle of awarding costs in the success of a party. In coining the factor of on-going relationship, the SCA emphasised that it applies where the dispute has been a bona fide one. In casu, this Court took a view that the applicant was not bona fide. It used employees as “guinea pigs”. What is of course perspicuous is that the on-going relationship principle remains a factor and not a compulsory principle to be followed slavishly. The SCA in Ergo specifically found that the consideration of an on-going relationship is in no way intended to be a numerus clausus. A wide discretion is given.

[17] As I understand it, the principle of on-going relationship as suggested in Ergo, does not mean that a trade union is licenced to bring unmeritorious cases in a mala fide manner and hope to escape unscathed with a costs order. It is essential to note that in AMCU v Ngululu Bulk Carriers (Pty) Ltd (In Liquidation) and others[8], the Court coined a phrase that the principle of costs not following the results in the Labour Court is predicated on the existence of “special relationship” between employees and employers. Where such a relationship – employer and employee - has ended the usual rule of costs following the results must apply. In casu, there is no such a special relationship of employer and employee. This special relationship seem to be the public policy one which Basson AM had in mind in the Chamber of Mines. To be precise, he said:

“In this regard public policy demands that the industrial court takes into account considerations such as the fact that justice may be denied to parties (especially individual applicant employees) who cannot afford to run the risk of having to pay the other side’s costs…”

[18] In AMCU, the Labour Court declined to make an order as to costs because the parties (AMCU and DMR) were in an on-going relationship as social partners under the MHSA. That approach was not interfered with by the LAC principally because the Labour Court was exercising discretion. As held in Ergo, the discretion is wide.

[19] This Court does appreciate that a relationship between a trade union and an employer is a collective bargaining one. However, it cannot be ignored that such a relationship is mainly regulated by a collective agreement. For instance, if a trade union loses a set threshold, it may lose the right to bargain collectively. Unlike an individual employee, a trade union is a body corporate in terms of section 97 (1) of the LRA and litigates in this Court as an equal partner to the employer party. True, as Ergo found, if the dispute is bona fide, a costs order may affect industrial peace if made against a bargaining partner. This Court has expressed a view that 80% of section 189A (13) applications are unjustified. This Court took a view that the dispute before it was not a bona fide one.

Conclusions

[20] For all the above reasons, this Court reaches a conclusion that the test for leave to appeal has not been satisfied. Accordingly, this application must be refused with costs.

[21] In the results I make the following order:

Order

1. The application for leave to appeal is dismissed

2. The applicant is to pay the costs of this application.

G. N. Moshoana

Judge of the Labour Court of South Africa.

Appearances (none)

In Chambers.

[1] See Snyders and others v De Jager 2017 (5) BCLR 604 (CC).

[2] See Neotel (Pty) Ltd v Telkom SOC & others (605/2016) [2017] ZASCA 47 (31 March 2017)

[3] (JA58/2020) [2021] ZALAC 22 (23 July 2021).

[4] [2007] 2 IR 81 at 85

[5] (CCT 270/20) [2021] ZACC 14 (17 June 2021).

[6] 1992 (1) SA 700 (AD).

[7] [1990] 11 ILJ 52 (IC) 73 E – 80 J.

[8] 2020 (7) BCLR 77 (CC).