African Commercial and Distributive Workers' Union v Schoeman, NO and Another

• Jurisdiction: South Africa
• Court: Transvaal Provincial Division
• Judge: De Villiers J, De Wet J, and Steyn J
• Judgment Date: 17 August 1951
• Citation: 1951 (4) SA 266 (T)
• Hearing Date: 17 August 1951

B De Villiers J:

This is an appeal from a judgment of DOWLING J delivered in the Witwatersrand Local Division refusing an order claimed against the first respondent the Minister of Labour to compel him to appoint an arbitrator or arbitrators in terms of Reg 2 of War Measure 145 of 1942 The applicant which is an unregistered labour employees' C association had applied to the Minister under the provisions of Reg 2 of War Measure 145 of 1942 for the appointment of an arbitrator to settle an alleged dispute between certain employees and their employers in an industry to which the members of this association belonged The D Minister had refused the application and application was brought before DOWLING J to compel the Minister to appoint an arbitrator under the provisions of Reg 2 of the War Measure in question

At the hearing before DOWLING, J., Mr. Trollip, who appeared for the first respondent, the Minister, took certain points in limine. The E learned Judge, however, considered it more convenient that certain aspects of the merits should be argued before him before he was called upon to decide any technical points arising out of the application. One of the issues on the merits - the first one - to be argued before him was the question whether on a true construction of the War Measure F the Minister had a discretion to refuse to appoint arbitrators. It was conceded by Mr. Reichman, who appeared for the applicant, that, if the Minister had a discretion to refuse to appoint arbitrators, the application before DOWLING, J., had to fail. The learned Judge heard a full argument on that point and in a considered judgment, with reference G to the principal authorities on the point, came to the conclusion that the Minister did have a discretion and that the appointment of an arbitrator under circumstances as arose in this case was not obligatory upon him. On that point he dismissed the application and found it unnecessary to consider any other aspect on the merits or to consider H the objections taken in limine. Against that judgment of DOWLING, J., appeal is now brought to this Court.

In the forefront of his argument Mr. Reichman, for the appellant, has submitted that the learned Judge a quo erred in holding that Reg. 2 of the War Measure in question conferred a discretion upon the Minister. Mr. Reichman contended that when certain circumstances came into existence the Minister had no discretion but was obliged to appoint an arbitrator. He has referred the Court to

De Villiers J

War Measure 9 of the same year and he has drawn our attention to the general scope and object of industrial conciliation and to war measures dealing with industrial disputes and has argued that Reg. 2 must be A interpreted as imposing an obligation on the Minister. During the argument the point was raised by the Court whether the main ground of appeal was not academic in the light of the opening words of the Regulation. It was suggested to Mr. Reichman that if the question whether an arbitrator should or should not be appointed was dependent on B the opinion of the Minister (whether a dispute as defined existed or threatened) then, unless he could show that the Minister erred in arriving at this opinion, and that his error was such that this Court was entitled to interfere, the other question did not arise. Evidently C Mr. Reichman had not come to this Court prepared on that aspect of the case but we are informed by Mr. Trollip that the point was mentioned in the Court below, not in the forefront of the argument on the merits but as a subsidiary to the question whether the Minister had or had not a discretion.

The Regulation in question reads as follows:

'Whenever the Minister is of the opinion that a labour dispute D affecting employees exists or may arise in any industry, trade or undertaking, he may appoint one or more arbitrators to settle all matters which form or might form the subject of such a dispute . . .'

In meeting the point raised by the Court, Mr. Reichman has argued that E the Court is entitled to interfere with the opinion formed by the Minister because on the facts before him he could not have come to the conclusion that he did. The Minister in his replying affidavit to the application dealt with this point as follows. In para. 16 (c) of his replying...