Calibre Clinical Consultants (Pty) Ltd and Another v National Bargaining Council for the Road Freight Industry and Another

• Jurisdiction: South Africa

Calibre Clinical Consultants (Pty) Ltd and Another v National Bargaining Council for the Road Freight Industry and Another
2010 (5) SA 457 (SCA)

2010 (5) SA p457

Citation	2010 (5) SA 457 (SCA)
Case No	410/09
Court	Supreme Court of Appeal
Judge	Nugent JA, Lewis JA, Ponnan JA, Cachalia JA and Leach JA
Heard	May 7, 2010
Judgment	July 19, 2010
Counsel	B Leech for the appellants.; PJ Pretorius SC (with LH Barnes) for the first respondent.; No appearance for the second respondent.

Flynote : Sleutelwoorde B

Administrative law — Administrative action — What constitutes — Procurement of services by bargaining council — Such not administrative action under Promotion of Administrative Justice Act 3 of 2000. C

Labour law — Bargaining council — Decisions relating to procurement of services — Such not subject to review under Promotion of Administrative Justice Act 3 of 2000.

Headnote : Kopnota

A bargaining council, when managing its wellness fund and procuring services D for that purpose, performs a domestic function in the exercise of its domestic powers, and its decisions are not subject to review under the Promotion of Administrative Justice Act 3 of 2000. (Paragraph [46] at 473B - C.)

Cases Considered

Annotations E

Reported cases

Southern Africa

AAA Investments (Pty) Ltd v Micro Finance Regulatory Council and Another 2007 (1) SA 343 (CC) (2006 (11) BCLR 1255): considered

Administrator, Transvaal, and Others v Traub and Others 1989 (4) SA 731 (A): F referred to

Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Others 2004 (4) SA 490 (CC) (2004 (7) BCLR 687): referred to

Cronje v United Cricket Board of South Africa 2001 (4) SA 1361 (T): referred to

Dawnlaan Beleggings (Edms) Bpk v Johannesburg Stock Exchange and Others G 1983 (3) SA 344 (W): referred to

Logbro Properties CC v Bedderson NO and Others 2003 (2) SA 460 (SCA) ([2003] 1 All SA 424): considered

Marais v Democratic Alliance [2002] 2 All SA 424 (C): referred to

Max v Independent Democrats and Others 2006 (3) SA 112 (C): referred to

Merafong Demarcation Forum and Others v President of the Republic of South Africa and Others H 2008 (5) SA 171 (CC) (2008 (10) BCLR 969): referred to

Millennium Waste Management (Pty) Ltd v Chairperson, Tender Board: Limpopo Province and Others 2008 (2) SA 481 (SCA) (2008 (5) BCLR 508; [2008] 2 All SA 145): referred to

Mittalsteel South Africa (Ltd) (formerly Iscor Ltd) v Hlatshwayo I 2007 (1) SA 66 (SCA): considered

National Director of Public Prosecutions v Phillips and Others 2002 (4) SA 60 (W) (2001 (2) SACR 542; 2002 (1) BCLR 41): referred to

Nextcom (Pty) Ltd v Funde NO and Others 2000 (4) SA 491 (T): considered

Oudekraal Estates (Pty) Ltd v City of Cape Town and Others 2004 (6) SA 222 (SCA) ([2004] 3 All SA 1): referred to J

2010 (5) SA p458

Pharmaceutical Manufacturers Association of SA and Another: In re Ex parte President of the Republic of South Africa and Others 2000 (2) SA 674 (CC) (2000 (3) BCLR 241): referred to A

President of the Republic of South Africa and Others v South African Rugby Football Union and Others 2000 (1) SA 1 (CC) (1999 (10) BCLR 1059): referred to

S v Prefabricated Housing Corporation (Pty) Ltd and Another 1974 (1) SA 535 (A): referred to B

Sidumo and Another v Rustenburg Platinum Mines Ltd and Others 2008 (2) SA 24 (CC) ((2007) 28 ILJ 2405; 2008 (2) BCLR 158; [2007] 12 BLLR 1097): referred to

South African Veterinary Council and Another v Szymanski 2003 (4) SA 42 (SCA) (2003 (4) BCLR 378): C referred to

Theron en Andere v Ring van Wellington van die NG Sendingkerk in Suid-Afrika en Andere 1976 (2) SA 1 (A): referred to

Tirfu Raiders Rugby Club v SA Rugby Union and Others [2006] 2 All SA 549 (C): doubted

Turner v Jockey Club of South Africa 1974 (3) SA 633 (A): referred to

Van Zyl v New National Party and Others [2003] 3 All SA 737 (C): referred D to.

England

Parochial Church Council of the Parish of Aston Cantlow and Wilmcote with Billesley, Warwickshire v Wallbank and Another [2004] 1 AC 546: referred E to

R v Association of British Travel Agents ex parte Sunspell Ltd (t/a Superlative Travel) [2001] ACD 16: referred to

R v Chief Constable of Sussex, ex parte International Trader's Ferry Ltd [1999] 1 All ER 129 (HL): dictum at 157 approved

R v Chief Rabbi of the United Hebrew Congregations of Great Britain and the Commonwealth, ex parte Wachmann F [1993] 2 All ER 249 (QB) ([1992] 1 WLR 1036): referred to

R v Disciplinary Committee of the Jockey Club, ex parte Aga Khan [1993] 2 All ER 853 (CA) ([1993] 1 WLR 909; [1992] EWCA Civ 7): referred to

R v Football Association Ltd, ex parte Football League Ltd [1993] 2 All ER 833 (QB): referred to

R v Imam of Bury Park Mosque, Luton ex parte Ali (Sulaiman) [1994] COD 142: referred to G

R v Insurance Ombudsman ex parte Aegon Life Assurance Ltd [1994] COD 426: referred to

R v Lloyd's of London ex parte Briggs [1993] 1 Lloyd's Rep 176: referred to

R v Panel on Take-Overs and Mergers, ex parte Datafin plc (Norton Opax plc and Another intervening) [1987] 1 All ER 564 (CA) ([1987] 1 QB 815): referred to H

YL (by her litigation friend the Official Solicitor) v Birmingham City Council and Others [2007] 3 All ER 957 (HL): referred to.

Statutes Considered

Statutes

I The Promotion of Administrative Justice Act 3 of 2000: see Juta's Statutes of South Africa 2009/10 vol 5 at 1-264.

Case Information

Appeal against a decision in the South Gauteng High Court, Johannesburg (Willis J). The facts appear from the judgment of Nugent JA.

B Leech for the appellants. J

2010 (5) SA p459

PJ Pretorius SC (with LH Barnes) for the first respondent. A

No appearance for the second respondent.

Cur adv vult.

Postea (July 19). B

Judgment

Nugent JA:

[1] The first respondent - the Bargaining Council for the Road Freight Industry - is a bargaining council established under the enabling provisions of s 27 of the Labour Relations Act 66 of 1995 (LRA). Wishing to C appoint a service provider to manage one of its projects, the council invited interested parties to submit proposals for its consideration. Proposals were submitted by, among others, a partnership [1] comprising Thebe Ya Bophela Healthcare Administrators (Pty) Ltd (Thebe) and Calibre Clinical Consultants (Pty) Ltd (the latter is the first appellant), [2] to which I shall refer as the partnership, and by a consortium (the second D appellant) comprising Right to Care Ltd and the remaining appellants, to which I shall refer as the consortium.

[2] After considering the various proposals the council decided not to appoint any of those who had submitted proposals. Instead it asked the E auditing firm KPMG to assist it to identify an appropriate service provider. Two candidates were identified, one of which was the second respondent, HIV Managed Care Solutions (Pty) Ltd (it trades under the name Careworks and I will refer to it as such), which the council appointed.

[3] Aggrieved by the decisions of the council, the appellants [3] applied to F the High Court at Johannesburg to review and set them aside, [4] relying upon the provisions of the Promotion of Administrative Justice Act 3 of 2000 (PAJA). Their application was dismissed by Willis J. This appeal against his order is before us with the leave of this court.

[4] It is convenient at the outset to outline the nature of a bargaining G council. Section 27(1) of the LRA allows for one or more registered trade unions and one or more registered employers' organisations to establish a bargaining council for a particular industry and area. The parties do so by adopting a constitution and having the bargaining council registered. A bargaining council exists primarily as a forum for collective bargaining H between the parties. Generally the parties will conclude collective agreements from time to time, which become binding on them and on their members. In certain circumstances the Minister may extend the

2010 (5) SA p460

Nugent JA

A terms of a collective agreement to third parties in the industry by a declaration to that effect published in the Government Gazette. A bargaining council has various statutory powers to enforce the terms of its collective agreements.

[5] In addition to serving as a forum for collective bargaining, a B bargaining council might also undertake other functions directed at maintaining industrial harmony and promoting the welfare of employees in the industry. In particular, a bargaining council is empowered by the LRA - powers that are replicated in the constitution of the council in this case - to 'promote and establish training and education schemes' [5] and to C 'establish and administer pension, provident, medical aid, sick pay, holiday, unemployment and training schemes or funds or any similar schemes or funds for the benefit of one or more of the parties to the bargaining council or their members'. [6]

[6] The material facts in this case are lucidly set out in the judgment of D the court below, but some repetition is necessary to explain in more detail how this matter arose. The council's concern for the impact of the HIV/AIDS pandemic on employees in the road-freight industry led it to establish an awareness programme that it called 'Trucking Against AIDS'. In about 2007 the parties to the council agreed to extend that programme by establishing what it called a 'wellness fund' that would, E among other things, introduce and maintain a programme to provide antiretroviral treatment to employees in the industry. Their agreement to establish the fund, and the terms upon which it was to function, were recorded in a clause that was inserted into the existing collective agreement. The collective agreement had been extended to the industry generally by declaration of the Minister in the Gazette and the...