Introduction
[1]
The appellant is a registered company and operates a certain manufacturing business in the metal
industry in the Free State Province. The third and fourth respondents are the Hotel Liquor, Commercial and Allied Workers’
Union of South Africa which, for short, is known as HOTELLICA. The fourth respondent is the Commercial Workers Union of South Africa
which, for short, is known as “CUSA”. The third and fourth respondents are both trade unions which at some or other stage relevant to this matter had as its members
some of the employees that were in the appellant’s employ. The fifth respondent is the Metal and Engineering Industries Bargaining
Council.
[2]
The appellant fell within the jurisdiction of the Metal and Engineering Industries Bargaining Council
(“the bargaining council”). For some time the bargaining council had granted the appellant exemption from complying with obligations imposed by the main agreement
of the council on employers falling under its jurisdiction. The obligations from which the appellant had been exempted related to
benefits that it otherwise would have been obliged in terms of the main agreement to provide to its employees or at least to certain
categories of its employees. The period of operation of the main agreement that had been applicable during 1997 or most of that year
expired at some stage during 1998. a new agreement was concluded among the parties in the bargaining council.
[3]
A dispute arose between the appellant, on the one hand, and its employees represented by the third
respondent on the other on whether the appellant was exempted from complying with obligations imposed by the new main agreement in
respect of the provision of certain benefits to certain of its employees. The third respondent contended that the appellant was obliged
to comply with the new main agreement whereas the appellant maintained that it was not. The appellant’s basis for its contention
that it was not was that the exemption that it had been granted under the previous main agreement still applied to, and, was operational
under, the new main agreement. It would seem that this stance had as its foundation the fact that the exemption document had, among
other things, the following words written on it, namely, “as amended and/or extended and/or replaced from time to time by any succeeding agreement and / or any amendments and/ or extensions
thereof.” The third respondent took the view that the exemption which the appellant had had during the operation of the main agreement
which applied during most of 1997 had lapsed when that agreement lapsed and had no application during the life of the new main agreement.
[4]
In November 1998 the third respondent referred the dispute to the Commission for Conciliation, Mediation
and Arbitration (“the CCMA”), which is the second respondent in this matter, for initially conciliation and, later, arbitration. The dispute was classified
as a dispute about the application of a collective agreement. The bargaining council was also cited as a party to the referral of
the dispute to the CCMA. The appellant raised certain objections to the jurisdiction of the CCMA. On each occasion the CCMA commissioner
who is the first respondent in the matter dismissed the appellant’s objections.
[5]
The CCMA commissioner then proceeded to arbitrate the dispute on the merits and issued an award.
The award on the merits effectively ordered the appellant to comply with the new main agreement of the bargaining council but added
the following: “unless exemptions were granted to the [appellant] under the New Collective Agreement concluded in terms of the Labour Relations Act,
1995”. He made no order as to costs. The first respondent’s ruling on the first objection by the appellant to the jurisdiction
of the CCMA was issued on the 23rd July 1999. The award on the merits of the dispute was issued on the 23rd July 1999 but was only received by the appellant on the 30th March 2000.
[6]
On or about the 11th October 2000 the appellant launched an application in the Labour Court for an order reviewing and setting aside both the first respondent’s
ruling on the first objection to the CCMA’s jurisdiction as well as the first respondent’s award on the merits. The review
application was opposed – not by the third respondent - but by the fourth respondent. For present purposes it is not necessary
to go into the reasons for this.
[7]
The appellant sought condonation for the late launch of the review application. In so far as the
review application related to the setting aside of the award on the merits, the appellant was required by sec 145 of the Labour Relations
Act, 1995 (Act 66 of 1995)(“the Act”) to have launched the review application within six (6) weeks from the date when the award was served on it. In so far as
the review application related to the setting aside of the ruling on the jurisdictional objection, it was required to be launched
within a reasonable time from the date of the delivery of the ruling. As the appellant received the award on the 30th March 2000, the period of six weeks expired about mid May 2000. In due course the review application was set down for hearing and
was heard by Francis J in the Labour Court. Francis J dismissed the appellant’s application for condonation with costs without
considering the merits of the review application. He later dismissed the appellant’s application for leave to appeal. Thereafter
the appellant petitioned the Judge President for leave to appeal. This Court then granted the petition and gave the appellant leave
to appeal to this Court against the judgment of the Labour Court.
The appeal
[8]
Before us Counsel for the appellant indicated that the appellant was abandoning the application
to review and set aside the first respondent’s first ruling on the jurisdiction of the CCMA to arbitrate the dispute. He indicated
that the appellant was pursuing the application to review and set aside the first respondent’s award on the merits. In order
to properly assess the merits of the appellant’s appeal against the Court a quo’s decision on the condonation application,
it is necessary to set out the sequence of the steps that the appellant took between the time when the appellant received the award
on the merits – which was on the 30th March 2000 – and the date when the review application was launched which was on the 11th October 2000. These are set out below:
The sequence of events preceding the launch of the review application.
[9]
30 March 2000:
On the 30th March 2000 the appellant received the award. The appellant states that the third respondent “withdrew from the dispute” but it does not give any date when this occurred nor does it give details to support this; it does not say that it was told this
by an official of the third respondent nor does it give any source for this information; the appellant says that, because of this
and the fact that it had a bona fide belief that its exemptions were valid, it thought that it was unnecessary to bring a review application to set the award aside.
[10]
6 April 2000:
On this date the appellant’s Mr Henderson addressed a letter to a Mr Bill Coetzee who appears to have been the secretary of
the bargaining council. In that letter the appellant informed the council of receipt of the award from the CCMA and the terms of
the award. The appellant’s Mr Henderson then said: “Based on the above we would like to obtain clarification as to whether our exemptions which were granted on 7 April 1997 were still
valid and enforceable during the period 1 April 1998 to date.”
[11]
11 April 2000:
On this date the manager of the bargaining council, Mr Coetzee, addressed a letter to the appellant for the attention of Mr Henderson
in reply to the latter’s letter of the 6th April 2000. In that letter Mr Coetzee informed the appellant that he had undertaken further research and could not find any withdrawal
of the appellant’s exemptions by either the bargaining council or the Minister of Labour. Mr Coetzee went on to say that, although
a new agreement had been published on the 31st March 1998, there was no indication therein that the appellant’s exemptions had been withdrawn or declared null and void by
either the bargaining council, the Minister or by the Independent Exemption and Arbitration Board. He concluded the letter thus: “I can therefore see no reason why your current exemptions which do not reflect a specific date of withdrawal should not be
considered valid.”
[12]
It appears from Mr Coetzee’s letter that the appellant was being advised to in effect run its affairs on the basis that the
exemptions were still valid. The significance hereof is that, if the exemptions were still valid, then they would constitute a valid
defence to any attempt to enforce the award because the award was framed in terms that ensured that it could not be enforced if there
were valid exemptions. What was then happening is that a statutory body whose function it was to enforce the agreement that that
the union sought to enforce was officially advising the appellant that its exemptions were valid. This was another way of saying
that that body would not enforce the agreement against the appellant because it viewed its exemptions as valid.
[13]
12 April 2000:
On this date the appellant’s Mr Henderson responded to Mr Coetzee’s letter of the 11th April 2000. In part Mr Henderson had this to say in his letter to Mr Coetzee:
“I appreciate the correspondence and your explanations therein, but I am afraid that if I am confronted by the members of Hotellica,
claiming back pay, that they will not be able to understand your correspondence. It would therefore be appreciated if you could issue
us with a License of Exemption for the period in question. If this is not possible, please suggest something more literate which
can now finally close this matter.”
Mr Coetzee responded to Mr Henderson’s letter of the same date and agreed to issue a licence of exemption which he said should
be read with the appellant’s other licences of exemptions. Mr Coetzee issued a licence of exemption in favour of the appellant.
The licence of exemption exempted the appellant from “the provisions of Part (11) of WAGES/or EARNINGS of the new agreement published under Government Notice R1329 dated 27 June 1990 R404 dated 31 March 1998 as amended, extended or replaced
from time to time”. The licence of exemption also had a paragraph that read thus: “Maintain the then existing status quo and the national percentage increase negotiated annually be enforced on the company with the
inception of the 1998/1999 main agreement. The aforementioned exemptions is (sic) to be read in conjunction with this exemption.”
Just before Mr Coetzee’s signature and the date thereof which was given as the 12th April 2000, the following appeared:
“Period from: 19 March 1997
To: expiry of agreement (30 June 2001)
_________
_______________________
Date
REGIONAL MANAGER
Please Note: This exemption may be varied or withdrawn at any time at the discretion of the Metal and Engineering Industries Bargaining
Council.”
The fact that the bargaining council had issued these new licences of exemption meant that the appellant would have felt more protected
against the enforcement of the arbitration award than they might have felt before.
[14]
21 June 2000
It appears from a letter dated 5 July 2000 from Mr Coetzee to Mr Holiday, an industrial relations consultant representing the appellant,
that a committee had been appointed by the bargaining council to inquire into the validity of the appellant’s exemptions. This
was done after some trade union had made an inquiry in this regard. It appears from Mr Coetzee’s aforesaid letter of 5 July
2000 that on this day that comittee held a meeting and concluded that the appellant’s exemptions remained in force “until the expiry of the Agreement or until such time as it is withdrawn by the Minister or the Council.”
[15]
28 June 2000
It would appear from a letter dated 5 July 2000 addressed by Mr Coetzee to Mr M.L Holliday that the latter had written a letter to
Mr Coetzee on this day with regard to the exemptions. However, there is no copy of that letter in the record.
[16]
29 June 2000
The notice of motion of the fourth respondent’s application to make the award an order of court bears this date as the date
when it was signed but what is strange is that the date on which the founding affidavit for that application appears to have been
attested to is the 10th July 2000. No explanation is proffered as to why it took about 11 to 12 days after the signing of the notice of motion to get the
founding was attested to.
[17]
10 July 2000
It appears that it was on this day that the founding affidavit in support of the fourth respondent’s application to make the
award an order of court was attested to.
[18]
25 July 2000
It would seem that on this day the fourth respondent’s attorney transmitted by fax to Mr Holiday a Notice of Motion intended
for an application to the Labour Court in terms of sec 158 of the Act to make the award an order of court. This transpires from Mr
Holiday’s letter of the 26th July 2000 addressed to Messrs Lovius – Block Attorneys representing the fourth respondent. No explanation is proffered as to
why it took the fourth respondent’s attorneys 15 days after the founding affidavit had been signed to serve the sec 158 application.
[19]
26 July 2000
On this day Mr Holiday addressed a letter to Lovius – Block Attorneys. From that letter it seems that Mr Holiday and the fourth
respondent’s attorney had had a telephone conversation concerning the fourth respondent’s application to the Labour Court
to make the award an order of Court. In summary Mr Holiday informed Lovius – Block Attorneys in the letter that:-
(a)
the fourth respondent’s application to the Labour Court to make the award an order of court was frivolous and vexatious and
warned them that, if they proceeded with it, the appellant would seek a cost order against the attorneys de boniis propriis as well
as against Mr Makara personally. (Mr Makara had been employed by the third respondent and had dealt with the dispute while there
but, it seems that, he had in the meantime resigned from the third respondent and had become employed by the fourth respondent and
sought to continue with this dispute even when he was employed by the latter union);
(b)
the fourth respondent had no locus standi in the matter;
(c)
Mr Makara had no authority from the individual employees to pursue the matter;
(d)
the appellant had valid exemptions from compliance with the agreements; the relevance of Mr Holiday’s advice to Lovius-Block
Attorneys that the appellant had valid exemptions is that the award they sought to have made an order of court was to the effect
that the appellant had to comply with the obligations provided for in the agreement only if the appellant did not have exemptions;
accordingly, if the appellant had valid exemptions, the award could not be made an order of court;
(e)
“(T)o expose us to unnecessary litigation in this regard and the harassment which our client receives from Makara through his frivolous
and vexatious continuation of hampering, letter writing and aggressive attacks on the Company to satisfy his hidden agenda, will
no longer be tolerated.”
(f)
“We therefore request from yourself, as a legal person, to properly investigate this matter and to advise Makara and his union accordingly
… we request clarification from your intentions (sic) by no later than 28 July 2000 at close of business whether you are going
to proceed or not, failing of which (sic), we will accept that you are going to proceed with this matter and will then continue with
the preparation of our defence.”
[20]
28 July 2000
It would appear from Mr Holiday’s letter of the 2nd August 2000 that Lovius-Block wrote a letter to Mr Holiday on this day in response to his letter of the 26th July 2000. Unfortunately that letter appears not to be in the record.
[21]
29 July 2000
On this day the fourth respondent launched its application to make the award an order of the Labour Court. Although on the papers
there are statements suggesting that the application was launched in June 2000, Counsel for the appellant as well as the fourth respondent’s
attorney who appeared before us were agreed that the correct date is the 29th
.RTF of original document