South African Transport & Allied Workers Union v North-West Transport Investments (Pty) Limited and Others (747/2001) [2001] ZANWHC 3 (25 January 2001)

Case No : 747/2000

IN THE HIGH COURT OF SOUTH AFRICA

(BOPHUTHATSWANA PROVINCIAL DIVISION)

In the matter between:-

SOUTH AFRICAN TRANSPORT AND APPLICANT

ALLIED WORKERS UNION

and

NORTH WEST TRANSPORT INVESTMENT 1ST RESPONDENT

(PTY) LTD (under judicial management)

NORTHWEST STAR (PTY) LTD 2ND RESPONDENT

(under judicial management)

MR B COOPER, N.O. 3RD RESPONDENT

MR A DLAMINI N.O. 4TH RESPONDENT

MR F ZONDAGH, N.O. 5TH RESPONDENT

MR J L FOURIE, N.O. 6TH RESPONDENT

MR J PEMA, N.O. 7TH RESPONDENT

MMABATHO

FOR THE APPLICANT:T J BRUINDERS FOR THE RESPONDENTS : E S J VAN GRAAN DATE OF HEARING: 13 NOVEMBER 2000 DATE OF JUDGMENT : 25 JANUARY 2001 LEEUW J: JUDGMENT: INTRODUCTION: This is an application for leave to institute an Urgent Application for an interdict against the respondents in the Labour Court of Johannesburg. The First and Second Respondents are under Judicial Management and the Third to the Seventh Respondents are the appointed Judicial Managers of the First and Second Respondents. I granted the applicant the order requested on the 13th November 2000. What follows are the additional reasons for judgment. THE FACTS:

FOR THE APPLICANT:T J BRUINDERS

FOR THE RESPONDENTS : E S J VAN GRAAN

DATE OF HEARING: 13 NOVEMBER 2000

DATE OF JUDGMENT : 25 JANUARY 2001

LEEUW J:

JUDGMENT:

INTRODUCTION:

This is an application for leave to institute an Urgent Application for an interdict against the respondents in the Labour Court of Johannesburg. The First and Second Respondents are under Judicial Management and the Third to the Seventh Respondents are the appointed Judicial Managers of the First and Second Respondents. I granted the applicant the order requested on the 13th November 2000. What follows are the additional reasons for judgment.

THE FACTS:

The applicant, being a Workers’ Union acting on behalf of its members, had filed an urgent application for an interdict in the Labour Court in Johannesburg, seeking an order restraining the respondents from, amongst others, retrenching some of its members who are in the employment of the respondents. The reason for the application is, inter alia, that the Respondents have not complied with section 189 of the Labour Relations Act No 66 of 1995 (Labour Relations Act), and further that certain terms set out in the addendum of the retrenchment agreement dated 12 April 1999 were not honoured by the respondents. The matter was set down for hearing at the Labour Court on 10th November 2000. The respondents, through their legal representative, in a letter dated 8th November 2000, informed the applicant amongst others, that leave of this Court had to be obtained for the purpose of instituting any proceedings against them. The Judicial Management order of this Court, granted on the 12 August 1999, contained the following direction:-

The applicant, being a Workers’ Union acting on behalf of its members, had filed an urgent application for an interdict in the Labour Court in Johannesburg, seeking an order restraining the respondents from, amongst others, retrenching some of its members who are in the employment of the respondents. The reason for the application is, inter alia, that the Respondents have not complied with section 189 of the Labour Relations Act No 66 of 1995 (Labour Relations Act), and further that certain terms set out in the addendum of the retrenchment agreement dated 12 April 1999 were not honoured by the respondents.

The matter was set down for hearing at the Labour Court on 10th November 2000.

The respondents, through their legal representative, in a letter dated 8th November 2000, informed the applicant amongst others, that leave of this Court had to be obtained for the purpose of instituting any proceedings against them.

The Judicial Management order of this Court, granted on the 12 August 1999, contained 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 /without the leave of this Court being had and obtained.” As a result of the abovementioned letter wherein the respondents objection against the applicant’s action in the Labour Court was raised, the applicant brought the present application on an urgent basis to this Court. SUBMISSIONS BY COUNSELS It is the applicant’s submission that: 6.1 they had to approach this Court on an urgent basis because: the respondents indicated only approximately 24 hours before the Labour Court hearing that they were going to raise the issue about the applicant’s failure to obtain leave from this Court;

“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 /without the leave of this Court being had and obtained.”

As a result of the abovementioned letter wherein the respondents objection against the applicant’s action in the Labour Court was raised, the applicant brought the present application on an urgent basis to this Court.

SUBMISSIONS BY COUNSELS

It is the applicant’s submission that:

6.1 they had to approach this Court on an urgent basis because:

the respondents indicated only approximately 24 hours before the Labour Court hearing that they were going to raise the issue about the applicant’s failure to obtain leave from this Court;

_ the applicant had not approached this Court earlier to seek the order because the applicant had on a previous occasion in March 1999, brought an application to the Labour Court on almost similar issues against the respondents and whilst the respondents were already under Judicial Management, but did not raise the point that the Union required leave of this Court. The respondents would also implement the retrenchments on the 15th November 2000; _ that this Court should grant them leave to approach the Labour Court for the purpose of launching the application for an interdict, in view of the fact that in terms of section 157 of the Labour Relations Act, the Labour Court has exclusive jurisdiction in respect of labour disputes. 6.2 It is submitted, on behalf of the Respondents, that if leave is granted to the Applicant, the First and Second Respondents, creditors and the remaining employees, will suffer irreparable harm. THE LAW

_ the applicant had not approached this Court earlier to seek the order because the applicant had on a previous occasion in March 1999, brought an application to the Labour Court on almost similar issues against the respondents and whilst the respondents were already under Judicial Management, but did not raise the point that the Union required leave of this Court.

The respondents would also implement the retrenchments on the 15th November 2000;

_ that this Court should grant them leave to approach the Labour Court for the purpose of launching the application for an interdict, in view of the fact that in terms of section 157 of the Labour Relations Act, the Labour Court has exclusive jurisdiction in respect of labour disputes.

6.2 It is submitted, on behalf of the Respondents, that if leave is granted to the Applicant, the First and Second Respondents, creditors and the remaining employees, will suffer irreparable harm.

THE LAW

The question to be considered is whether, by granting the applicants leave to launch an urgent application with the Labour Court, for the purpose of facilitating and ascertainment of their rights in accordance with the Labour Relations Act, that would lead to any material or financial disadvantage to the First and Second Respondents. Section 157 (1) of the Labour Relations Act provides that: “Subject to the Constitution and section 173, and except where this Act provides otherwise, the Labour Court has exclusive jurisdiction in respect of all matters that elsewhere in terms of this Act or in terms of any other law are to be determined by the Labour Court.” It is clear from the affidavits filed by both parties and the submissions made by Counsel for both sides, that the issue to be determined is whether the provisions of Section 189 of the Labour Relations Act have been complied with by the employers (the Respondents). Furthermore, whether an attempt to comply with the provisions of Section 189 has been frustrated by the deliberate actions of the applicant in this matter.

The question to be considered is whether, by granting the applicants leave to launch an urgent application with the Labour Court, for the purpose of facilitating and ascertainment of their rights in accordance with the Labour Relations Act, that would lead to any material or financial disadvantage to the First and Second Respondents.

Section 157 (1) of the Labour Relations Act provides that:

“Subject to the Constitution and section 173, and except where this Act provides otherwise, the Labour Court has exclusive jurisdiction in respect of all matters that elsewhere in terms of this Act or in terms of any other law are to be determined by the Labour Court.”

It is clear from the affidavits filed by both parties and the submissions made by Counsel for both sides, that the issue to be determined is whether the provisions of Section 189 of the Labour Relations Act have been complied with by the employers (the Respondents). Furthermore, whether an attempt to comply with the provisions of Section 189 has been frustrated by the deliberate actions of the applicant in this matter.

10. The aforementioned dispute is about labour issues. Sections 189 of the Labour Relations Act clearly and unequivocally provides for the steps an employer is required to follow. It is within the powers and jurisdiction of the Labour Court to determine whether the dismissal of the applicant’s members, for operational reasons was both substantively and procedurally unfair or not. In view of the above circumstances, this Court is not in a position to say whether the applicant has a valid case against the respondents in the Labour Court or not, because I cannot deal with the merits and the demerits of the case itself. The crux of the applicant’s application for an interdict in the Labour Court, is to stop the imminent retrenchments by obtaining a judgment that would allow them to facilitate the ascertainment of their rights in terms of the Labour Relations Act. On the other hand, the respondents’ contention is that if the applicants are allowed to bring their application in the Labour Court, and if the Labour Court for some or other reason grants the application, this would delay the retrenchment process.

10. The aforementioned dispute is about labour issues. Sections 189 of the Labour Relations Act clearly and unequivocally provides for the steps an employer is required to follow.

It is within the powers and jurisdiction of the Labour Court to determine whether the dismissal of the applicant’s members, for operational reasons was both substantively and procedurally unfair or not.

In view of the above circumstances, this Court is not in a position to say whether the applicant has a valid case against the respondents in the Labour Court or not, because I cannot deal with the merits and the demerits of the case itself.

The crux of the applicant’s application for an interdict in the Labour Court, is to stop the imminent retrenchments by obtaining a judgment that would allow them to facilitate the ascertainment of their rights in terms of the Labour Relations Act.

This line of argument is not acceptable because that would be denying the applicants their basic Constitutional right to access the Court and enforce their rights. Section 34 of the Constitution of the Republic of South Africa Act 108 of 1996 (The Constitution), provides that: “Everyone has a right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, where appropriate, another independent and impartial tribunal or forum.” 16 It is not the respondent’s contention that this right to access the Labour Court is limited by Section 36 of the Constitution. 17 The rights of employees as against the employer and vise versa, are protected by the Constitution: See Section 23 (1) which provides that “Everyone has a right to fair labour practices.”

This line of argument is not acceptable because that would be denying the applicants their basic Constitutional right to access the Court and enforce their rights.

Section 34 of the Constitution of the Republic of South Africa Act 108 of 1996 (The Constitution), provides that:

“Everyone has a right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, where appropriate, another independent and impartial tribunal or forum.”

16 It is not the respondent’s contention that this right to access the Labour Court is limited by Section 36 of the Constitution.

17 The rights of employees as against the employer and vise versa, are protected by the Constitution: See Section 23 (1) which provides that “Everyone has a right to fair labour practices.”

18 In terms of Section 188 of the Labour Relations Act, the onus is upon the respondents to satisfy the Court that the reason for the dismissal was fair based on its operational requirement and that such dismissal was in accordance with a fair procedure as provided for in section 189 of the Labour Relations Act.> 19 In exercising the discretion accorded by Section 428 of the Companies Act, I have taken into account the purpose of Judicial Management. See Western Bank Ltd. V. Laurie Fossati Consruction (Pty) Ltd 1974 (4) SA 607 (E) at 611. But, at the same time, I have been careful not to aid or promote an illegality by granting an order or refusing the Applicants leave to launch their application in the Labour Court. Compare Samuel Osborne (SA) Pty Ltd v United Stone Crushing Co (Pty) Ltd 1938 WLD 229 at 234. Because this Court is not competent to adjudicate over labour issues, especially of the nature provided for in section 189 of the Labour Relations Act, this Court would therefore be aiding an illegally by depriving the applicant the right to obtain redress in the appropriate Court. I am of the view that the interests of the creditors and the company itself should not be seen to override those of its employees whose rights are entrenched in the Constitution. It is for this reason that I granted the applicants leave to launch their application in the Labour Court.

18 In terms of Section 188 of the Labour Relations Act, the onus is upon the respondents to satisfy the Court that the reason for the dismissal was fair based on its operational requirement and that such dismissal was in accordance with a fair procedure as provided for in section 189 of the Labour Relations Act.>

19 In exercising the discretion accorded by Section 428 of the Companies Act, I have taken into account the purpose of Judicial Management. See Western Bank Ltd. V. Laurie Fossati Consruction (Pty) Ltd 1974 (4) SA 607 (E) at 611. But, at the same time, I have been careful not to aid or promote an illegality by granting an order or refusing the Applicants leave to launch their application in the Labour Court. Compare Samuel Osborne (SA) Pty Ltd v United Stone Crushing Co (Pty) Ltd 1938 WLD 229 at 234. Because this Court is not competent to adjudicate over labour issues, especially of the nature provided for in section 189 of the Labour Relations Act, this Court would therefore be aiding an illegally by depriving the applicant the right to obtain redress in the appropriate Court. I am of the view that the interests of the creditors and the company itself should not be seen to override those of its employees whose rights are entrenched in the Constitution.

It is for this reason that I granted the applicants leave to launch their application in the Labour Court.

20 I have a correction to make in my ex temporaneous judgment on the 13th November 2000, on page 8. I erroneously referred to Section 27 of the Constitution. The correct section is Section 23 (1) of the Constitution. M M LEEUW JUDGE OF THE HIGH COURT Applicants attorneys : Minchin & Kelly Respondents attorneys :Smit, Stanton, Motlhabani Inc.

20 I have a correction to make in my ex temporaneous judgment on the 13th November 2000, on page 8. I erroneously referred to Section 27 of the Constitution. The correct section is Section 23 (1) of the Constitution.

M M LEEUW

JUDGE OF THE HIGH COURT

Applicants attorneys : Minchin & Kelly

Respondents attorneys :Smit, Stanton, Motlhabani Inc.