South Africa: North West High Court, Mafikeng

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

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 13^th November 2000. What follows are the additional reasons for judgment.

THE FACTS:

1. 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.

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

3. The respondents, through their legal representative, in a letter dated 8^th 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.

4. 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.”

5. 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 15^th 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

7. 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.

7. 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.”

7. 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.

11. 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.

11. 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.

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.>