BTR Industries South Africa (Pty) Ltd and Others v Metal and Allied Workers' Union and Another

• Jurisdiction: South Africa
• Judge: Hoexter JA, Milne JA, Kumleben JA, F H Grosskopf JA and Goldstone JA
• Judgment Date: 25 May 1992
• Citation: 1992 (3) SA 673 (A)
• Court: Appellate Division

Hoexter JA:

The first appellant ('BTR') is a private company which manufactures rubber products at its factory at Howick in Natal. The first respondent ('MAWU') is a trade union registered in terms of s 4 of the E Labour Relations Act 28 of 1956 ('the Act'). The second respondent is Mr P Dladla to whom I shall refer as 'Dladla'. Dladla is a member of MAWU and a former employee of BTR.

From August 1983 until the beginning of May 1985 the majority of the workers employed by BTR at the factory were members of MAWU. Following F upon protracted and acrimonious labour wrangles between BTR and MAWU a conciliation board was established on 28 January 1986. It sat in Pietermaritzburg on 26 February 1986. On 7 May 1986 the Minister of Manpower referred certain disputes between BTR and MAWU to the industrial court ('the IC') for a determination in terms of s 46(9) of the Act. In G the application before the IC, MAWU contended that MAWU had been guilty of unfair labour practices and that MAWU was entitled to a determination granting it relief. BTR resisted the application.

The second, third and fourth appellants in this appeal were the members of the IC which heard the application. The second appellant (the late Mr P H E Roux SC) presided. He was a Deputy-President of the IC. At a late stage in the proceedings before the IC counsel for MAWU made an unsuccessful application for the recusal of the second appellant. Thereafter the matter proceeded to its conclusion. On 9 September 1987 the IC dismissed MAWU's application. No order was made as to costs. The judgment of the IC has I been reported: Metal and Allied Workers' Union and Others v BTR Sarmcol (1987) 8 ILJ 815 (IC).

In February 1988 MAWU and Dladla made application on notice of motion to the Natal Provincial Division ('the Court a quo') for a review of the proceedings in the IC. They asked that the determination should be set aside; that the application for a determination should be referred back to J an industrial court otherwise constituted; and that BTR should bear the

Hoexter JA

A costs of the review proceedings jointly and severally with so many of the members of the IC as might elect to oppose the review. In fact all four appellants resisted the review application.

The review proceedings came before Didcott J. The argument addressed to the Court a quo fell into two main compartments. They are conveniently summarised thus in the judgment of Didcott J: B

'The one I shall call the recusal compartment. The other is that huge compartment that encompasses what I shall call the merits of the case.

The recusal compartment is there as a result of an unsuccessful application made in the middle of the proceedings before the industrial court for the recusal of its deputy president. . . . The proceedings as a C whole are said to have been vitiated by the second respondent's decision to continue sitting in the circumstances to which objection was taken when his recusal was sought.'

In regard to the review on the merits the learned Judge preferred to make no definite finding. On the other hand Didcott J concluded that the second appellant's refusal to recuse himself constituted a fatal irregularity. Accordingly the Court a quo set aside the IC's determination and remitted D the case for a hearing de novo by an industrial court consisting of three new members. In regard to the costs of the application before him, Didcott J ordered BTR and the second appellant jointly and severally to pay those costs incurred by MAWU and Dladla in regard to the recusal compartment of the review, such costs to include the costs of employing two counsel. For E the rest, each party was ordered to pay his or its own costs.

Thereafter, and in response to applications for leave to appeal made before him, Didcott J:

(1)

granted the four appellants leave to appeal against the whole of F his judgment and order;

(2)

granted MAWU and Dladla leave to cross-appeal against that part of the order awarding them limited costs instead of the costs of the whole review application;

(3)

ordered that the appeal and the cross-appeal should be heard by this Court.

G The review touching upon the merits of the IC's determination need be considered by this Court only in the eventuality that Didcott J erred in ruling that the second appellant should have recused himself. A judgment by this Court upholding the decision of the Court a quo would entirely dispose of the appeal. In the interests of convenience, and with a view to H a possible saving in time and legal costs, the Chief Justice invited the parties to consider the desirability or otherwise of a 'divided' hearing of the two issues. By agreement of all parties to the appeal argument was heard on 9 and 10 March 1992 in relation to the recusal issue only; and accordingly this Court is now required to consider only whether Didcott J was right or wrong in ruling that second appellant should have recused I himself.

Between the years 1983 and 1986 labour relations between BTR's management and MAWU were characterised by a prolonged and bitter struggle. Details thereof are chronicled in the reported judgment of the IC. For the J limited purposes of this appeal only the leading events need be recounted.

Hoexter JA

A The factory has been in operation since 1919. In 1974 no less than 2 160 workers were employed. In the years thereafter, due both to a downturn in the national economy and a necessary process of rationalisation of its production plants at the factory, BTR was obliged to retrench many of its workers. In the last decade retrenchment took place as follows: 300 B workers lost their jobs in 1981; 752 in 1984; and 102 in 1985. This massive retrenchment gave rise to much dissatisfaction and uneasiness on the part of the workers.

MAWU having recruited a majority of the workers at the factory, on 11 August 1983 it submitted to BTR a draft proposal for a comprehensive and C final recognition agreement. On 27 September 1983 BTR produced its first proposal in this connection. Between August 1983 and the end of April 1985 MAWU and BTR management were involved in what the IC in its reported judgment described (at 820H) as a 'protracted power play' over the issue of a full recognition agreement and the rights flowing therefrom.

The period between August to December 1984 was one of sustained D industrial action on the part of workers at the factory in the form of mass meetings, a ban on overtime work, go-slow techniques on night shifts, a sit-in at the canteen and a refusal to work on the part of the solid woven-belting department. A strike ballot held on 4 February 1985 was followed by further industrial action: a go-slow strike from 7-12 March and a full strike from 12-15 March. Meanwhile, during February 1985 E further proposals and counter-proposals in regard to the central issue of a recognition agreement had been exchanged between BTR and MAWU. In March mediation took place, and a conciliation board meeting was held. The latter ended in deadlock between the parties on 10 April 1985. On that date BTR submitted, as a final offer, a draft recognition agreement in a F form acceptable to BTR. This was rejected by MAWU, which on 17 April submitted for signature its final proposed draft for a recognition agreement.

On 30 April 1985 all the weekly-paid workers at the factory downed tools. BTR promptly sent a telex to MAWU placing on record the work G stoppage and stating that it regarded this as constituting both illegal industrial action and a breach of contract. MAWU responded by (1) confirming that MAWU's members were on strike; (2) denying that the strike was illegal; (3) linking the strike to BTR's failure to conclude a recognition agreement with MAWU; and (4) stating that MAWU's members required MAWU's final draft for a recognition agreement to be signed H before they would return to work.

On 2 May 1985 BTR issued an ultimatum to the striking workers to return to work or to face the possibility of the termination of their contracts of employment. The ultimatum was ignored and on 3 May the striking workers, numbering 890 in all, were dismissed. On 4 May 1985 BTR offered I re-employment to all workers. This offer was rejected. Thereafter BTR maintained its offer of re-employment to all dismissed workers, but at the same time it invited applications for employment at the factory from other job-seekers. Few of the dismissed workers accepted re-employment, and the remaining vacancies were filled on a temporary basis until 2 August 1985. On 22 July MAWU informed BTR's managing director that the workers were J willing to return to work unconditionally.

Hoexter JA

A Written confirmation thereof was sought by BTR. This was done by way of a telex received by BTR only on 12 August 1985, by which time the temporary work-force at the factory had already (on 2 August) been engaged on a permanent basis. The remanning of the factory was only completed at the end of 1985. No more than some 66 of the dismissed workers accepted re-employment.

B In August 1985 BTR broke off negotiations with MAWU and intimated to the latter that it would be prepared to consider only such specific proposals for the settlement of the dispute between the parties as MAWU might wish to make. On 24 October 1985 MAWU applied for the appointment of a conciliation board in connection with the issues of a recognition C agreement between the parties and BTR's dismissal of the striking workers. Despite opposition by BTR, a conciliation board was established and it sat on 26 February 1986. As mentioned earlier in this judgment, the Minister on 7 May 1986 referred certain disputes between the parties to the IC for a determination in terms of s 46(9) of the Act.

I turn to the main issues raised in the application before the IC and D the nature of the relief sought by MAWU against BTR...