South African Transport & Allied Workers Union and Others v North-West Transport Investments (Pty) Limited and Others (133/2001, 321/2001) [2001] ZANWHC 49 (8 November 2001)

CASE NO : 133/2001

And 321/2001

IN THE HIGH COURT OF SOUTH AFRICA

(BOPHUTHATSWANA PROVINCIAL DIVISION)

SOUTH AFRICAN TRANSPORT AND ALLIED WORKERS UNION 1ST Applicant

MASIA K G AND OTHERS 2ND and further

Applicants

and

NORTH WEST TRANSPORT INVESTMENTS (PTY) 1st Respondent

LIMITED (under judicial management)

NORTH WEST TRANSPORT INVESTMENTS (PTY) 2nd Respondent

MR B COOPER N O 3rd Respondent

MR A DLAMINI N O 4th Respondent

MR F ZONDAGH N O 5th Respondent

MR J C L FOURIE N O 6th Respondent

MR J PEMA N O 7th Respondent

MMABATHO:

APPLICATION:

DATE OF HEARING : 17 OCTOBER 2001

DATE OF JUDGMENT : 08 NOVEMBER 2001

COUNSEL FOR THE APPLICANTS: N H MAENETJE

COUNSEL FOR THE RESPONDENTS : E S J VAN GRAAN SC with him M MOYSES

J U D G M E N T LEEUW J: INTRODUCTION: 1.1 The applicants approached this Court for the following relief in terms of the Notice of Motion. “Granting leave to the applicants to apply to refer a dispute relating to the unfair dismissal of the second to further applicants to the Labour Court, Johannesburg in accordance with a statement of claim which is Annexee “X” hereto. Directing those of the respondents who opposed the application to pay the costs of this application.” 1.2.The first applicant is a trade union registered in accordance with the LabourRelations Act No 66 of 1995 (“The Labour Relations Act.”) and has brought this application on its own behalf and on behalf of the second applicant who are members of the first applicant in the employment of the first respondent and whose services were terminated with effect from the 16th November 2000. 1.3 The first respondent is under judicial management. The judicial management order of this Court granted on the 12th August 1999 (“the final judicial management order”) in favour of the respondents contained, amongst others, the following direction:-

J U D G M E N T

LEEUW J:

INTRODUCTION:

1.1 The applicants approached this Court for the following relief in terms of the Notice of Motion.

“Granting leave to the applicants to apply to refer a dispute relating to the unfair dismissal of the second to further applicants to the Labour Court, Johannesburg in accordance with a statement of claim which is Annexee “X” hereto. Directing those of the respondents who opposed the application to pay the costs of this application.”

1.2.The first applicant is a trade union registered in accordance with the LabourRelations Act No 66 of 1995 (“The Labour Relations Act.”) and has brought this application on its own behalf and on behalf of the second applicant who are members of the first applicant in the employment of the first respondent and whose services were terminated with effect from the 16th November 2000.

1.3 The first respondent is under judicial management. The judicial management order of this Court granted on the 12th August 1999 (“the final judicial management order”) in favour of the respondents contained, amongst others, the following direction:-

“That while the respondent is under judicial management all actions, proceedings, the execution of all writs, summonses and other processes against the respondent be stayed and be not proceeded with or without the leave of this Court being had and obtained.” It is as a result of this order that the applicants approached this Court for leave to approach the Labour Court. 2.1 The respondents raised a preliminary point of non-joinder to the effect that the applicants ought to have joined the creditors of the respondents, who have a direct and substantial interest as creditors of a company under judicial management. 2.2 Respondents further made an application for the consolidation of the Case No 321/2001, which application was before Court and against the respondents by the same applicants; they also sought leave from the Court to proceed with an arbitration dispute relating to the unfair dismissal of the second applicant at the Commission for Conciliation, Mediation and Arbitration (“CCMA”). Mr MAENETJE, on behalf of applicants in both matters, opposed the application and made the following submissions: (a) That the dismissal of the applicants was both procedurally and substantially unfair in that the provisions of section 189 of the Labour Relations Act were not complied;

“That while the respondent is under judicial management all actions, proceedings, the execution of all writs, summonses and other processes against the respondent be stayed and be not proceeded with or without the leave of this Court being had and obtained.”

It is as a result of this order that the applicants approached this Court for leave to approach the Labour Court.

2.1 The respondents raised a preliminary point of non-joinder to the effect that the applicants ought to have joined the creditors of the respondents, who have a direct and substantial interest as creditors of a company under judicial management.

2.2 Respondents further made an application for the consolidation of the Case No 321/2001, which application was before Court and against the respondents by the same applicants; they also sought leave from the Court to proceed with an arbitration dispute relating to the unfair dismissal of the second applicant at the Commission for Conciliation, Mediation and Arbitration (“CCMA”).

Mr MAENETJE, on behalf of applicants in both matters, opposed the application

and made the following submissions:

(a) That the dismissal of the applicants was both procedurally and substantially unfair in that the provisions of section 189 of the Labour Relations Act were not complied;

(b) that the issue of creditors being joined is irrelevant under the circumstances because the rights of employees as against the employer are protected by the Constitution of the Republic of South Africa Act No 108 of 1996 (The Constitution), section 23 (1) thereof, which provides that “Everyone has a right to fair labour practices.” 3. The submissions raised by Mr MAENETJE would have ben salient points on the merits per se and if it was a matter between the applicants and a Company which was not under judicial management. At the end of the submissions by both Counsels, I made the following order: “1. That : Both matters, Cases Number 133/2001 and 321/2001 be and are hereby postponed sine die; That : The applicants in both cases be and are hereby granted leave to join the creditors and or any other parties who have a direct and substantial interest in both matters; That : Applicants pay costs including costs of two counsels.” Although the point in limine was not raised by the respondents in their papers, the Court used its inherent powers and discretion mero moty to require the joinder of the parties in the proceedings already instituted. Compare SA Steel Equipment Co (Pty) Ltd and Others v Lurelk (Pty) Ltd 1951 (4) SA 167 (T) and Smith v Conelect 1987 (3) SA 689 (W) at 694.

(b) that the issue of creditors being joined is irrelevant under the circumstances because the rights of employees as against the employer are protected by the Constitution of the Republic of South Africa Act No 108 of 1996 (The Constitution), section 23 (1) thereof, which provides that “Everyone has a right to fair labour practices.”

3. The submissions raised by Mr MAENETJE would have ben salient points on the merits per se and if it was a matter between the applicants and a Company which was not under judicial management.

At the end of the submissions by both Counsels, I made the following order:

“1. That : Both matters, Cases Number 133/2001 and 321/2001 be and are hereby postponed sine die;

That : The applicants in both cases be and are hereby granted leave to join the creditors and or any other parties who have a direct and substantial interest in both matters;

That : Applicants pay costs including costs of two counsels.”

Although the point in limine was not raised by the respondents in their papers, the Court used its inherent powers and discretion mero moty to require the joinder of the parties in the proceedings already instituted. Compare SA Steel Equipment Co (Pty) Ltd and Others v Lurelk (Pty) Ltd 1951 (4) SA 167 (T) and Smith v Conelect 1987 (3) SA 689 (W) at 694.

It is trite law that a direct and substantial interest refers to an interest in the right which is the subject matter of the litigation and not merely a financial interest which is only an indirect interest in such litigation. See Aquatur (Pty) Ltd v Sacks and Others 1989 (1) SA 56 (A) and the cases referred to therein. From the facts appearing in the statement of claim attached to the Notice of Motion, it is evident that the North West Development Corporation (Pty) Ltd (NWDC) is a major shareholder of the first respondent. Furthermore, that during the negotiations on the retrenchment of the first applicant’s members, several meetings were held with the applicants, respondents, the Premier of the North West Government and/or his representatives and the creditors, all being persons who had a direct and substantial interest in the outcome of the negotiations. I therefore find that the creditors of the respondents do not only have a financial interest but also a legal interest in the outcome of the proceedings in both matters and that they could suffer prejudice if they are not joined as parties to the proceedings.

See the unreported Full Bench decision of this Division : SACCAWU v NWDC (Pty) Ltd and Others CC 178/2000 handed down on the 29th March 2001. 8. ON COSTS:  The two cases, namely Case No 321/2001 and Case No 133/2001 were consolidated on the date of hearing for the purpose of arguing the point in limine

It is trite law that a direct and substantial interest refers to an interest in the right which is the subject matter of the litigation and not merely a financial interest which is only an indirect interest in such litigation. See Aquatur (Pty) Ltd v Sacks and Others 1989 (1) SA 56 (A) and the cases referred to therein.

From the facts appearing in the statement of claim attached to the Notice of Motion, it is evident that the North West Development Corporation (Pty) Ltd (NWDC) is a major shareholder of the first respondent. Furthermore, that during the negotiations on the retrenchment of the first applicant’s members, several meetings were held with the applicants, respondents, the Premier of the North West Government and/or his representatives and the creditors, all being persons who had a direct and substantial interest in the outcome of the negotiations.

I therefore find that the creditors of the respondents do not only have a financial interest but also a legal interest in the outcome of the proceedings in both matters and that they could suffer prejudice if they are not joined as parties to the proceedings.

See the unreported Full Bench decision of this Division : SACCAWU v NWDC (Pty) Ltd and Others CC 178/2000 handed down on the 29th March 2001.

8. ON COSTS:

 The two cases, namely Case No 321/2001 and Case No 133/2001 were consolidated on the date of hearing for the purpose of arguing the point in limine

 the respondents have incurred costs occasioned by the postponement of the two cases. The applicants are therefore held liable jointly and severally for the costs occasioned by the postponement of the two cases, from the date of consolidation. See Minister of Agriculture v Estate Randeree and Others 1979 (1) SA 145 (A). It is for these reasons that I granted an order in favour of the respondents on the point in limine. M M LEEUW JUDGE OF THE HIGH COURT Attorneys for the applicants : Minchin & Kelly Inc Attorneys for the respondents : Smit Stanton Mothlabani Inc

 the respondents have incurred costs occasioned by the postponement of the two cases.

The applicants are therefore held liable jointly and severally for the costs occasioned by the postponement of the two cases, from the date of consolidation. See Minister of Agriculture v Estate Randeree and Others 1979 (1) SA 145 (A).

It is for these reasons that I granted an order in favour of the respondents on the point in limine.

M M LEEUW

JUDGE OF THE HIGH COURT

Attorneys for the applicants : Minchin & Kelly Inc

Attorneys for the respondents : Smit Stanton Mothlabani Inc