Marievale Consolidated Mines Ltd v President of the Industrial Court

The approach of the employer’s counsel to unfair labour practice and labour relations demonstrates a lack of appreciation of the nature and purpose of the Act because it assumes that any lawful act, no matter how unfair or inequitable, may not be queried or interfered with by the Industrial Court whereas industrial conciliation has been recognised for some decades and at least since 1909 and is not a new doctrine in South Africa and legislation relating to industrial conciliation does not relate solely to the enforcement of legal rights.

Essence

Unfair labour practice relates to a customary or recognised device scheme or action adopted in the labour field and not related to habitual or repetitious conduct.

Decision

Case No: 19052/85 : (1986) ILJ 152 : [1986] 2 All SA 141 (T) (14 January 1986)

Order:

Refused application to review and set aside a status quo order issued by the industrial court with costs.

Judges

Richard Goldstone J

Related books

Darcy du Toit et al Labour Relations Law: A Comprehensive Guide 6ed 925 pages (LexisNexis 2015) at 539

Darcy du Toit et al Labour Law Through The Cases – loose-leaf service updated 6 monthly (LexisNexis 2020)

Van Niekerk and Smit (Managing editors) et al [email protected] 5ed (LexisNexis 2019) at

Myburgh and Bosch Reviews in the Labour Courts 1ed (LexisNexis 2016) at

Reasons

“In my opinion, the approach of applicant’s counsel to labour relations demonstrates a lack of appreciation of the nature and purpose of the Act. It assumes that any lawful act, no matter how unfair or inequitable, may not be queried or interfered with by the Industrial Court. In support of that approach counsel sought to rely upon a remark of CURLEWIS, J in Egnep ltd v Black Allied Mining and Construction Workers’ Union and Others 1985 (2) SA 402 (W). At 404J-405A, the learned Judge said:

“Mr. Bregman argues that in a dispute between employee and employer ‘labour law’, not common law, should prevail. This appears to me to contain the seeds of a pernicious doctrine.”

In the first place, CURLEWIS, J was concerned with the law to be applied by the Supreme Court. With respect, he correctly refused to apply anything but the common law in a situation where no statute required him to do otherwise. The remark was in no way related or intended to have reference to the proper interpretation of the provisions of the Act. Indeed, the case decided by CURLEWIS, J did not have anything at all to do with the provisions of the Act.
Industrial conciliation is not a new doctrine in South Africa. The first attempts at legislative intervention in this field antedate Union in 1910: cf. the Transvaal Industrial Disputes Act, 1909.
The first Industrial Conciliation Act was promulgated as Act 11 of 1924.
The present Act, was promulgated in 1956 and has frequently been amended since then.
Far reaching changes were introduced since 1979 in consequence of the recommendations of the Wiehahn Commission, the report of which was tabled in Parliament on 1 May 1979 (RP 47/1979). One such change was the creation of the Industrial Court.
That the provisions of legislation relating to industrial conciliation do not relate solely to the enforcement of legal rights has been recognised for some decades. . . . . “

Quotations from judgment

Note: Footnotes omitted and emphasis added

On 1 September 1985, a strike by the applicant’s employees commenced at the applicant’s gold mine. It was organised by the third respondent, the National Union of Mineworkers (“NUM”), an unregistered trade union. A substantial majority of the applicant’s Black employees participated in the strike. It took place within 30 days from the date on which a conciliation board was established and it is common cause that, in terms of section 65 of the Labour Relations Act, 28 of 1956 (“the Act”), it was not unlawful for the applicant’s employees to have participated in the strike.

On 3 September 1985, the striking employees were dismissed by the applicant. To quote the applicant’s mine manager:
“Thereafter the applicant started making arrangements for the discharge of the striking workers. The applicant also set in motion the procedure to have the workers transferred to their places of origin.

There is a dispute between the applicant and the third respondent in respect of the methods adopted by the applicant in repatriating the dismissed employees.”

On 5 September 1985, the NUM sought urgent relief in the Witwatersrand Local Division of the Supreme Court in an attempt to stop the alleged unlawful eviction of its members from the applicant’s mine hostel. The resolution of the dispute which arose in that application is still pending in that Court. Other associated applications were launched in the same Court by the NUM. It is not necessary to refer to the detail thereof.

On 9 September 1985, the applicant launched an urgent application, also in the Witwatersrand Local Division, for an order declaring that its dismissal of the employees on 3 September 1985 was lawful.

It also sought an ejectment order against those of the dismissed employees who had refused to leave the applicant’s premises.
On 25 September 1985, STAFFORD, J granted the order sought by the applicant.

In effect, he held that although the strike was lawful, the participation therein by the applicant’s employees constituted a repudiation by them of their contracts of employment which entitled the applicant to terminate that employment.

In that application the NUM, although joined as a party, made no appearance.

On 8 September 1985, the NUM made an application to the Minister of Manpower, under section 35 (1) of the Act, for the appointment of a conciliation board to consider and, if possible, settle the alleged dispute between it and the applicant in relation to the dismissal of the members of the NUM who participated in the strike.

On the following day, 9 September 1985, the NUM applied to the Industrial court for what is commonly called a “status quo order” under section 43 of the Act. On 31 October 1985, the Industrial court made the following order:

“1. In terms of section 43(4)(b)(i) of the Act, respondent is required to reinstate the dismissed employees, as identified by agreement between the parties, in its employ on terms and conditions not less favourable to them than those which governed their employment prior to such termination.
2. In terms of section 43(5) this order shall become operative on 1 November 1985 in respect of such identified employees who report for duty in person at the respondent’s premises within 21 days from the date of this order coming into operation provided that such employees shall be required to be reinstated as from the date of so reporting for duty.
3. The parties are furthermore required to submit to this Court a list revealing the identities of the employees so reinstated within 30 days from date hereof, which list shall form part of this order.”

The applicant now seeks a review and the setting aside of that order. It does so on a basis of urgency relying therefor upon the considerable financial prejudice caused to it by the terms of the order.

Counsel for the NUM did not place in issue the question of urgency and I was satisfied that the matter should be heard during the court recess. It is accordingly not necessary to set out the detail of the prejudice relied upon in this connection by the applicant.

Counsel for the applicant sought to attack the proceedings in, and order made by, the Industrial Court on a number of grounds. It will be convenient to consider them under the following four headings:

  • 1. the locus standi of the NUM;
  • 2. the absence of jurisdiction in the Industrial Court by reason of the invalidity of the application made by the NUM to the Minister of Manpower in terms of section 35 of the Act;
  • 3. res judicata and Issue Estoppel arising from the judgment of STAFFORD, J; and
  • 4. the approach of the Industrial Court.

I shall consider each of these in turn.

1. Locus standi of the NUM

The applicant’s counsel submitted that a trade union has no locus standi to seek an order for the reinstatement of its members under section 43(1)(a). He pointed out that such an order carries with it reciprocal obligations and, more particularly, that the employee is required to offer his services. Thus, ran the argument, before such an order can be sought, the express and specific authority of the employee is necessary. It was further submitted that the interest of the trade union in the reinstatement order was only an indirect interest and insufficient to constitute the necessary legal interest.

In support of these submissions, counsel relied upon the judgment of ELOFF, J in P. E. Bosman Transport Works Committee and Others v Piet Bosman Transport (Pty) Ltd 1980 (4) SA 801 (T). In that case a works committee constituted under section 7A of the Bantu Labour Relations Act, 48 of 1953, an unregistered trade union and certain dismissed employees were all held to lack locus standi in an application wherein an order was sought to interdict an employer from dismissing its employees or altering their terms and conditions of employment without lawful cause. From 803D-805E the learned Judge considered the position of the trade union.

It appears from the passage cited from the affidavit filed on its behalf that the trade union in that case did not purport to join in the application in a representative capacity on behalf of any of its members.

It relied solely upon its own “effective and financial loss” by reason of its members being unlawfully dismissed from their employment (803H-804B).

That interest was held not to constitute a “direct and substantial interest” or a “legal interest” sufficient to confer locus standi upon it (804B-F).

The learned Judge held further that its role as “a watchdog” also did not entitle it to join in the application.

The present case, for two fundamental reasons, is distinguishable from the P. E. Bosman Transport case.

  • In the first place, the question here is whether under the Act the NUM had locus standi to approach not this Court, but the Industrial Court.
  • In the second place, the NUM here was expressly acting in a representative capacity on behalf of its members.

It is unnecessary, therefore, to consider further the judgment in the P. E. Bosman Transport case or the other cases cited by the applicant’s counsel which related to the locus standi of voluntary associations which did not seek to act, in a representative capacity.

The Act gives express recognition to trade unions, whether registered or unregistered. In terms of section 35 (1), the Minister may be approached for the establishment of a conciliation board to consider and, if possible, settle any dispute in any undertaking, industry, trade or occupation where the “parties” to the alleged dispute are:

“(a) one or more trade unions; or
(b) one or more employees; or
(c) one or more trade unions and one or more employees, on the one hand, and
(d) one or more employer’s organisations;
(e) one or more employers; or
(f) one or more employer’s organisations and one or more employers, on the other hand . . .”

Any such “party” may apply to the Minister for the appointment of a conciliation board.

Status quo relief may be sought from the Industrial court under section 43 only by-

“(2) Any party to a dispute who:
(a) refers the said dispute to an industrial council in respect of the dispute; or
(b) if there is no industrial council having jurisdiction, applies under section 35 (1) for the establishment of a conciliation board in respect of the dispute.”

It is clear, therefore, that apart from locus standi which the NUM may possess at common law, the Act expressly recognises its right to approach the Industrial Court for relief under section 43. Counsel for the applicant recognised this and submitted that whilst a trade union might properly seek relief where an unfair trade practice is alleged it cannot do so where the dispute concerns the suspension or termination of employment and it seeks to act in a representative capacity on behalf of its members. This follows, so they submitted, because in the former case the order would not involve the bilateral obligations created by the relationship of employer and employee, whereas in the latter case it would do so.

In my opinion, the distinction sought to be drawn has no justification. The provisions of section 43 do not support it. Notwithstanding the submission to the contrary, I have no doubt that there can be an overlapping between an “unfair trade practice” on the one hand and “the suspension or termination of employment of an employee” on the other hand.

I would adopt in respect of this question the analysis by THIRION, J in Consolidated Frame Cotton Corporation Limited v President of the Industrial court and Others 1985(3) SA 150 (N) at 154C-155E. The learned Judge was there considering the provisions of section 43 and the status quo relief which can only be granted by the Industrial Court in respect of the disputes defined in section 43 (1), viz:

“(a) the suspension or termination of the employment of an employee or employees or the decision or proposal of an employer to suspend or terminate the employment of an employee or employees; or
(b) a change or proposed change in the terms or conditions of employment of an employee or employees, except to give effect to any relevant law or wage regulating measure; or
(c) an alleged unfair labour practice.”

In section 43 (4) (b), the specific status quo relief which may be granted by the Industrial Court is described as follows:

“(i) in a case referred to in subsection (1) (a), not to suspend or terminate the employment of the employee or employees concerned, or if such employment has been suspended or terminated, to cancel the suspension or to reinstate the employee or employees concerned in his employ on terms and conditions not less favourable to him or them than those which governed his or their employment prior to such termination; or
(ii) in a case referred to in subsection (1) (b), not to make the proposed change, or if the change has been made, to restore the terms and conditions of employment which existed prior to the change; or
(iii) in a case referred to in subsection (1) (c), not to introduce the alleged unfair labour practice, or if the practice has been introduced, to restore the labour practices which existed prior to such introduction,”

At 154I-155E, THIRION, J said the following:

“In my view the three categories of disputes listed in s 43(1) are not mutually exclusive to the extent that a suspension or termination óf employment or change in the terms or conditions of an employee’s employment can never form part of an unfair labour practice as defined in s 1 of the Act. The concept of an ‘unfair labour practice’ covers a wider field than the matters referred to in paras (a) and (b) of s 43(1).

On the other hand it would probably be correct to say that many a dispute concerning an ‘unfair labour practice’ would also be one concerning changes in the terms and conditions of employees’ employment or their dismissal or suspension.
It will be observed from the definition of an unfair labour practice in s 1 of the Act that, in order to qualify as an ‘unfair labour practice’, the activity or conduct complained of must amount to a labour practice or a change in a labour practice which has or may have one or more of the effects mentioned in subparas (i)-(iv) of para (a) of the definition or an effect which is similar or related to any of those effects. It would seem to me that a case may well arise where the suspension or termination of the employment of an employee has the effect that the employee is unfairly affected or that his employment opportunities are jeopardised thereby or that it has the effect that labour unrest is created or promoted thereby and that such a suspension or termination of employment may well result from a labour practice or a change in a labour practice, in which event there would arise a dispute concerning an ‘unfair labour practice’ within the meaning of s 43 (1) (c) while there would at the same time be a dispute such as is referred to in s 43 (1) (a).

I however agree that an order under s 43 (4) (b) (i) would only be competent if the dispute is one which falls within the provisions of s 43 (1) (a) irrespective of whether it is also a dispute or part of a dispute concerning an alleged unfair labour practice within the meaning of s 43 (1) (c).”

The policy of the Act is clearly to make provision for and encourage trade union participation in the resolution of labour disputes. The submissions made on behalf of the applicant with regard to locus standi are thus not only inconsistent with a reasonable and proper interpretation of the words in the statute but also with the clear intention and policy of the legislature. In this context it is apposite to refer to the remarks of PRICE, J in South African Association of Municipal Employees v Minister of Labour 1948 (1) SA 528 (T) at 577/8, concerning the 1937 predecessor of the Act:

“I can find nothing in the Act to show that a trade union is prohibited from raising a dispute, in circumstances in which the Act allows a dispute to be raised, concerning all its members – some of its members – or only one of its members . . . The Act seems to me to be specifically designed to encourage collective bargaining and to avoid singular disputes between individual workmen and employees.
The main purpose of a trade union is to secure suitable conditions for its individual members and to protect its members from being exploited. Why this purpose should be frustrated if only one member, to whom the Act allows a remedy, is aggrieved, it is difficult to see.”

The aforegoing, however, does not constitute a complete answer to the objection raised on behalf of the applicant. It does not answer the submission arising from the bilateral relationship between employer and employee and the willingness of the latter to work upon his reinstatement.

That the NUM was acting in a representative capacity on behalf of its members who were dismissed by the applicant is clearly and expressly stated in the affidavit of its general secretary, Mr. Ramaphosa.

And, in Amalgamated Engineering Union v Minister of Labour 1949 (4) SA 908 (A) at 914, also in relation to the 1937 Act, CENTLIVRES, JA said:

“Consequently, when sec.35 somewhat ineptly refers to a dispute between a registered trade union on the one hand and a registered employers’ organisation on the other hand, what is really meant is that the trade union and employers’ organisation are involved in the dispute as representing employees and employers respectively. On this reading of the section it follows that the Legislature did not intend that a dispute between a trade union and an employers’ organisation in which (if there can be any such dispute) employees are not involved should be referred to a conciliation board.
But for the purposes of the present case it is sufficient to say that when, as in this case, a trade union applies for a conciliation board to determine a dispute between its members and an employer, it acts as the representative of its members.”

That the constitution of the NUM authorised it to take such action is also clear and not in issue. And, as counsel for the NUM pointed out, meetings of employees were called and expressly mandated the NUM to take the appropriate action. Furthermore, prior to 1 September 1985, the shaft-stewards at the applicant’s mine met with the effected members of the NUM on several occasions and supported the proposal that steps be taken by the NUM to protect their interests through court action if that should become necessary.

The practical answer to the applicant’s objection is to be found in the terms of the order in f Act, made by the Industrial Court. By paragraph 2 thereof it was only made effective in respect of those of the effected employees

“who report for duty in person at the respondent’s premises within 21 days from the date of this order coming into operation”.

It follows that the applicant would only become bound to reinstate those individual employees who did tender their services to it.

The form which a status quo order may take may thus depend upon whether the applicant or applicants therefor are individual employees or a trade union. I can find no reason, however, for denying a trade union locus standi in an application for a status quo order under section 43 in a case where reinstatement of its members is sought. Before leaving this issue, I would also draw attention to the fact that if indeed the applicant’s employees, or some of them, were “bussed out” of the Republic or even to their homes in the Republic, to demand of each one that he personally apply to the Industrial Court for such relief would be tantamount to a denial thereof.

In an alternative argument, counsel for the NUM relied upon the doctrine of negotiorum gestio and referred to the judgment in Wood and Others v Ondangwa Tribal Authorities and Another 1975(2) SA 294 (A). In view of the conclusion just expressed it is unnecessary to consider this alternative submission.

2. The application under section 35 of the Act.

An application for relief under section 43 is only competent where there is a valid reference of a dispute to an industrial council or where (as in the present case) there is no industrial council and an application has been made under section 35(1) for the establishment of a conciliation board in respect of the dispute: section 43(2).

Accordingly, the Industrial Court was obliged to satisfy itself as to the validity of the application under section 35(1).
On behalf of the applicant, the first attack on the application was with reference to section 35(5)(b) of the Act. It is there provided that:

“(5) Subject to the provisions of sub-section (6), no conciliation board shall be established if the application is made by or on behalf of an individual employee unless the Minister is satisfied-
(a) . . . . . . . . . . . .
(b) if the subject-matter of the dispute is the decision or proposal of an employer to suspend or terminate the employment of the individual concerned or the suspension or termination of the employment of that individual or the refusal or failure of the employer to re-employ that individual, that the applicant has established that there are reasonable grounds for believing that the said decision, proposal, suspension, termination, refusal or failure is not due to misconduct on the part of the said individual or to other circumstances which justify such decision, proposal, suspension, termination, refusal or failure; and
(c) . . . . . . . . .”

Sub-section (6) provides that:

“(6) Notwithstanding the fact, that he is not satisfied in respect of one or more of the matters referred to in sub-sections (4) and (5), the Minister may approve of the establishment of a conciliation board if he is of the opinion that special circumstances exist which make it desirable that a conciliation board be established in order that the objects of this Act may be achieved.”

I am of the opinion that section 35(5) is not of application in the present case.

The application of the NUM was not made on behalf of an individual employee. I do not agree that section 35(5) relates to all cases where an application under section 35(1) is made on behalf of one or more employees. Having regard to the context of section 35(5), the singular clearly does not include the plural. Where, in section 35, the draughtsman wishes to include the plural he has expressly so stated – see section 35 (1). The use of the word “individual” is also significant in this regard.

I would add that, even if I am incorrect in so interpreting section 35(5), having regard to all of the circumstances of the present case, there is at least a reasonable probability that the Minister would find present special circumstances for the purposes of section 35(6). It is not necessary in this regard to consider the test or standard of proof which should be applied by the Industrial Court in deciding this question at the stage of a section 43 application.

The view I have expressed is in relation to whatever that test or standard may be: see in this regard the unreported judgment of THIRION, J in Consolidated Frame Cotton Corporation Ltd v The President, Industrial Court delivered in case no. M28/1984 and case no. M1837/1984.

The second attack upon the section 35 application was that the dispute arises solely out of a question of law and that, therefore, in terms of section 35(4) (d) the Minister may not grant the application. At the outset it is necessary to have regard to the nature of the dispute referred to in the application to the Minister.

For this purpose I shall have regard to the terms of the statement of the NUM made in terms of paragraph 2 of the statutory form referred to in Regulation 6(1) promulgated pursuant to the terms of the Act. In that statement it is stated in paragraph 1 that the application is made for the appointment of a conciliation board-

“to consider the dispute arising out of the dismissal of members of the National Union of Mineworkers . . .”

The whole background and history of the matter is set out. In particular the reasons for the strike action, the responses of the applicant thereto and details of the various Supreme Court applications are furnished. Complaints are made concerning the wage policy of the applicant and the general attitute of the General Mining Corporation Ltd (“Gencor”) to the question of labour relations generally and the payment of reasonable wages in particular.

Then, in paragraph 42, it is said that:

“In all the circumstances outlined above it is submitted that the respondent’s conduct in dismissing the members of the Union was unjustified and constituted an unfair labour practice.”

The statement concludes as follows:

“In all the circumstances (which, it is submitted, constitutes special circumstances), it is respectfully submitted that it is in the interest of the maintenance of labour peace and the promotion of sound collective bargaining practices within the industry that a Conciliation Board be established in the following terms:

‘To consider the dispute between the National Union of Mineworkers (of the one part) and Marievale Consolidated Mines Limited (of the other part) arising out of the dismissal by the latter of the former’s members on or about 3 and 4 September 1985, which dispute is one concerning an alleged unfair labour practice.’”

On behalf of the applicant it was submitted that having regard to the suggested terms of the reference, the dispute was limited to the dismissal of the employees and does not relate to an unfair labour practice.

In terms of section 1 of the Act, “unfair labour practice” means:

“(a) any labour practice or any change in any labour practice, other than a strike or a lock-out, which has or may have the effect that-
(i) any employee or class of employees is or may be unfairly affected or that his or their employment opportunities, work security or physical, economic, moral or social welfare is or may be prejudiced or jeopardized thereby;
(ii) the business of any employer or class of employers is or may be unfairly affected or disrupted thereby;
(iii) labour unrest is or may be created or promoted thereby;
(iv) the relationship between employer and employee is or may be detrimentally affected thereby; or
(b) any other labour practice or any other change in any labour practice which has or may have an effect which is similar or related to any effect mentioned in paragraph (a); ”

I have no doubt that the conduct of Gencor complained of by the NUM and set out in the aforesaid statement could properly be held to constitute an unfair labour practice.
Indeed, the actual finding to that effect by the Industrial Court was not challenged in the present review proceeding.

The general tenor of the statement of the NUM is such that there could be no doubt that the dispute alleged related to both the dismissal of the employees and to the conduct of the applicant amounting to an unfair labour practice.

The conclusion I have just expressed is really destructive of the argument advanced on behalf of the applicant. It was predicated upon the assumption that the dispute referred to in the application related only to the question of dismissal and that as such dismissal was held by STAFFORD, J to have been lawful, the dispute arose solely out of a question of law.

That narrow approach is not at all justified: cf. Cape Town Municipality v Minister of Labour and Another 1965 (4) SA 770 (C). At 774H-775B WATERMEYER, J said:

“If the application be examined as a whole it will be seen that what Woodman and the second respondent were complaining of was that Woodman had been unfairly dismissed. They never contested the Council’s legal right to dismiss him; it was the unreasonableness of his dismissal to which they objected. It is true that one of the matters in dispute, as it emerged on the papers before the Court, was whether or not the contract had been terminated, but section 35(4)(d) only precludes the establishment of a conciliation board where the dispute arises solely out of a question of law, which was not the case here.”

See, too, Frankfort Munisipaliteit v Minister van Arbeid en ’n Ander 1970(2) SA 49 (O) at 54F-55H.

I have had placed before me not only the documents in the application before the Industrial Court but also the transcription of counsel’s submissions. The validity of the application to the Minister was not raised as an issue. In my judgment, had that question been raised, it would have been rejected. It is quite without justification.

3. Res judicata and Issue Estoppel

In Liley v Johannesburg Turf Club 1983 (4) SA 548 (W) at 550H it was said that:

“The exceptio res judicata is a form of estoppel and means that, where a final judgment is delivered by a competent court, the parties to that judgment or their privies (or, in the case of a judgment in rem, any other person) are not allowed to place in issue the correctness of that judgment.”

On the other hand, “issue estoppel” relates to the doctrine in terms whereof

“. . . the parties or their privies are estopped from disputing an issue decided by the judgment of a court, as distinct from being estopped only from relying upon the same cause of action.” (at 551F).

The order of the Industrial Court and the reasons therefor furnished by it were in no way inconsistent with the judgment of STAFFORD, J or with any issue decided by him in his judgment.

Indeed, as counsel for the NUM pointed out, in his submissions to the Industrial Court he was at pains to proceed upon an acceptance of the correctness of the judgment of STAFFORD, J.

The Industrial Court granted relief to the NUM on the basis that the lawfulness of the dismissal of the striking employees did not preclude their reinstatement under section 43 of the Act. That premise was indeed attacked on behalf of the applicant and will be considered in the next section of this judgment.

On the assumption of its correctness, however, I am of the opinion that the judgment of STAFFORD, J was no bar to the relief granted by the Industrial Court.

4. The approach of the Industrial Court

The Industrial Court held that the conduct of the applicant constituted an unfair labour practice as defined in section 1 of the Act. It held further that the employees had been unfairly dismissed. It was on the basis of those findings that it made the reinstatement order.
On behalf of the applicant it was argued that the Industrial Court was not justified in making the reinstatement order for the following reasons:

  • (a) The terms of the application to the Minister under section 35 were restricted to a dispute concerning the termination of the employment of the striking employees and did not relate to an unfair labour practice. The Industrial Court was therefore precluded from finding the applicant guilty of an unfair labour practice;
  • (b) to constitute a “practice” there has to be repetition and no such allegation of similar prior conduct is alleged of the applicant;
  • (c) the lawfulness of the dismissal of the employees precluded the Industrial Court from finding either that the dismissals were unfair or constituted an unfair labour practice.

(a) The categorisation of the dispute

Section 35 does not place any limitation upon the nature or content of the disputes in respect of which the Minister may be approached for the establishment of a conciliation board. However, for the purposes of section 43, as already stated above, the term “dispute” is defined by sub-section (1) to mean a dispute concerning:

“(a) the suspension or termination of the employment of an employee or employees or the decision or proposal of an employer to suspend or terminate the employment of an employee or employees; or
(b) a change or proposed change in the terms or conditions of employment of an employee or employees, except to give effect to any relevant law or wage regulating measure; or
(c) an alleged labour practice.”

The categorisation of the dispute for the purposes of section 43 is of particular significance for upon it will depend the form of status quo relief which may competently be granted by the Industrial Court. This follows from the provisions of section 43(4)(b) the terms of which have also been set out earlier in this judgment.

The submission on behalf of the applicant is that because of the formulation of the basis for the establishment of a conciliation board in the section 35 application (the terms of which are cited above) the NUM was precluded from relying upon a different dispute under section 43.

In my judgment, if the facts and circumstances relied upon in the section 35 application may constitute a dispute of the type referred to in section 43(4)(b)(i), (ii) or (iii), then it is competent to rely on one or more of such disputes for the purpose of claiming status quo relief.

As I have already held in this judgment, the categories of disputes are not mutually exclusive and may to a greater or lesser extent overlap.

It follows that the NUM was fully entitled to rely in its section 43 application upon disputes relating to unfair dismissal and unfair labour practice. The facts alleged by the NUM which were relied upon by the Industrial Court were covered by and consistent with the issues and facts raised in the section 35 application. The objection, therefore, cannot succeed.

(b) What constitutes a “practice”

In my opinion, the reference to “labour practice” in the definition of “unfair labour practice” relates to a customary or recognised device, scheme or action adopted in the labour field. I am in no way attempting to give an exhaustive definition to that phrase. My purpose is solely to indicate that it does not in any way relate to habitual or repetitious conduct on the part of a particular employer. Such an interpretation of the phrase does not appear to be a natural one and is certainly not necessary having regard to the words and their context.

It would lead to the unhappy if not absurd result that any employer can be a “bad boy” once and may be twice but not thrice! That cannot have been the intention of the legislature. I can find no basis for upholding this submission made on behalf of the applicant.

(c) The lawfulness of the dismissals

In my opinion, the approach of applicant’s counsel to labour relations demonstrates a lack of appreciation of the nature and purpose of the Act. It assumes that any lawful act, no matter how unfair or inequitable, may not be queried or interfered with by the Industrial Court.

In support of that approach counsel sought to rely upon a remark of CURLEWIS, J in Egnep ltd v Black Allied Mining and Construction Workers’ Union and Others 1985 (2) SA 402 (W). At 404J-405A, the learned Judge said:

“Mr. Bregman argues that in a dispute between employee and employer ‘labour law’, not common law, should prevail. This appears to me to contain the seeds of a pernicious doctrine.”

In the first place, CURLEWIS, J was concerned with the law to be applied by the Supreme Court. With respect, he correctly refused to apply anything but the common law in a situation where no statute required him to do otherwise. The remark was in no way related or intended to have reference to the proper interpretation of the provisions of the Act. Indeed, the case decided by CURLEWIS, J did not have anything at all to do with the provisions of the Act.

Industrial conciliation is not a new doctrine in South Africa. The first attempts at legislative intervention in this field antedate Union in 1910: cf. the Transvaal Industrial Disputes Act, 1909.

The first Industrial Conciliation Act was promulgated as Act 11 of 1924.

The present Act, was promulgated in 1956 and has frequently been amended since then.

Far reaching changes were introduced since 1979 in consequence of the recommendations of the Wiehahn Commission, the report of which was tabled in Parliament on 1 May 1979 (RP 47/1979). One such change was the creation of the Industrial Court.

That the provisions of legislation relating to industrial conciliation do not relate solely to the enforcement of legal rights has been recognised for some decades. In 1947 in South African Association of Municipal Employees v Minister of Labour (supra) at 532, PRICE, J, with the concurrence of RAMSBOTTOM, J, said:

“There is no doubt that the question was not whether the Council was entitled under its contract, to terminate Mr. de Vos’ employment, but it was whether, notwithstanding its legal right to do so (which was never disputed), it should have done so, in view of the various circumstances of the case . . .” (My italics.).

The same question arose for consideration in George Divisional Council v Minister of Labour and Another 1954(3) SA 300 (C). At 305D-F HERBSTEIN, J said:

“Mr. Duncan, for the Minister, stressed that the purpose of the Act was ‘industrial conciliation’ and that sec. 35 was intended to operate in those areas where insistence on legal rights might cause inequity and lead to industrial strife. It was not contested by the Minister or the Association that the Council had acted within its legal rights in refusing to make Erasmus’ appointment permanent; the question was, whether in doing so it had acted inequitably or unreasonably. This was the substantial matter in dispute and it remained such despite the fact, that Erasmus had accepted the offer to remain on as a clerical assistant for two months. It will be noted that in its letter of 8th December, 1953 the Association made it absolutely clear that it did not deny that the Council had acted ‘volgens sy wetlike regte’.”

After referring to the judgment of PRICE, J in South African Association of Municipal Employees v Minister of Labour (supra), the learned Judge continued:

“If this decision be correct (and no reason exists for doubt on this score) the fact, that (a) the Council acted within its legal rights, and (b) the dispute arose after the Council had lawfully resolved not to appoint Erasmus permanently cannot serve to exclude the operation of sec. 35. That Erasmus accepted the offer to serve as a clerical assistant does not mean that no dispute existed in regard to the Council’s decision not to give him a permanent appointment, or if one had existed that it came to an end on Erasmus’ acceptance of the offer to stay on for two months.
On the contrary, despite the fact, that Erasmus had been allowed to stay on as a clerical assistant for two months, the Association was contending that the reasons for refusing him a permanent appointment and the circumstances surrounding the refusal were such as to make the conduct of the Council unjustifiable and insupportable. The Council’s letter of 13th November, 1953 afforded the clearest evidence that it was maintaining this attitude. The Minister was therefore correct in holding that a dispute existed and that it was not ‘in connection with any . . . question of law.’”

And, more recently, in Consolidated Frame Cotton Corporation Ltd v Minister of Manpower and Others 1985 (1) SA 191 (D), BOOYSEN, J put the same point as follows:

“The Minister can be taken to be aware that it is not a prerequisite for success in an unfair labour practice case that there should be a contractually binding agreement between the parties. He may even establish a conciliation board in circumstances in which the conduct of one of the parties is contractually valid.”

The judgment of BOOYSEN, J was upheld by the Full Court of the Natal Provincial Division: cf. at 206/7.

The dicta to which I have referred are no less of application to the relevant terms of the Act in its present form. More particularly, the submission that an unfair labour practice cannot include or refer to a lawful exercise of rights by an employer is not supported by the wording of the relevant provisions, or by the authority to which I have referred or by the patent intention and underlying philosophy of the Act. That submission is also without merit.

CONCLUSION

The Industrial Court is not a court of law: South African Technical Officials’ Association v President of the Industrial Court and Others 1985 (1) SA 597 (A). In respect of orders made under section 43 of the Act no appeal lies to the Supreme Court.

In the present proceedings, the applicant seeks to set aside the order of the Industrial Court by means of a common law review. The principles which are thus applicable are those described by HOLMES, J in National Transport Commission and Another v Chetty’s Motor Transport (Pty) Ltd 1972 (3) SA 726 (A) at 735E-H:

“There is no appeal against the decision of the Commission. The Legislature has appointed it as the final arbiter in its special field and, right or wrong, for better or worse, reasonable or unreasonable, its decision stands – unless it is vitiated by proof on review in the Supreme Court that-
(a) the Commission failed to apply its mind to the issues in accordance with the behests of the statute and the tenets of natural justice: in other words that, de jure, it failed to decide the matter at all. Such failure could be established by reference to mala fides, improper motive, arbitrariness or caprice. The list is not exhaustive; or
(b) the Commission’s decision was grossly unreasonable to so striking a degree as to warrant the inference of a failure to apply its mind as aforesaid – a formidable onus.”

That passage was cited with approval by JANSEN, JA in Theron v Ring van Wellington van die N.G. Sendingkerk in Suid-Afrika 1976 (2) SA 1 (A).

The attack made upon the order of the Industrial Court related to what are now commonly called the “jurisdictional facts”. That attack, as I have found, was not justified. No attack was launched on the merits of the decision of the Industrial Court and wisely so, in my opinion. The reasons furnished by the Industrial Court indicate that the members thereof applied their minds to the issues conscientiously and thoroughly. In my opinion they had due regard to the facts, issues and circumstances which were raised in the affidavits placed before them. There is no basis for interfering with their decision or order.

The application is accordingly dismissed with costs.

Appearances

MD Kuper, SC and P Pauw – Advocate/s for the Applicant/s
No Appearance – Advocate/s for the First and Second Respondent/s
A Chaskalson, SC and PJ Pretorius – Advocate/s for the Third Respondent/s
Bowman, Gilfillan-Hayman Godfrey Inc, Johannesburg; MacRober, De Villiers and Hitge Inc, Pretoria – Attorney/s for the Applicant/s
Cheadle, Thompson and Haysom, Braamfontein; Weavind and Weavind Inc, Pretoria – Attorney/s for the Third Respondent/s

Court summary