Communication Workers Union and Another v Telkom SA Ltd and Another

• Jurisdiction: South Africa
• Judgment Date: 27 August 1998
• Citation: 1999 (2) SA 586 (T)

Communication Workers Union and Another v Telkom SA Ltd and Another
1999 (2) SA 586 (T)

1999 (2) SA p586

Citation	1999 (2) SA 586 (T)
Case No	13716/97
Court	Transvaal Provincial Division
Judge	Southwood J
Heard	April 28, 1998
Judgment	August 27, 1998
Counsel	PM Kennedy for the applicants; NA Cassim (with him BE Leech) for the first respondent; No appearance for the second respondent

Flynote : Sleutelwoorde B

Labour law — Labour Relations Act 66 of 1995 — Courts — Jurisdiction of — Whether High Court or Labour Court having jurisdiction to decide application for review of reversal of allegedly irregular promotions and for order declaring affected employees entitled to benefits of C promotions and salary increases — Dispute arising after date on which Act coming into operation — Transitional arrangements provided for in s 21(1) of Seventh Schedule to Act thus not applicable — High Court having concurrent jurisdiction with Labour Court to hear review in terms of s 157(2) because employer alleged to have violated employees' rights in terms of s 24 of Constitution of the Republic of South D Africa Act 200 of 1993 — Labour Court having exclusive jurisdiction to hear application for declaratory order in terms of s 158(1)(h) — Although causa for declaratory order completely different from causa for review application, finding that promotions not lawful and E consequential refusal to grant declaratory order would facilitate, if not constitute, finding that promotions irregular — High Court able to give effective order on merits of review application only if having jurisdiction in respect of whole application — Objection to High Court's jurisdiction upheld.

Headnote : Kopnota

On 1 September 1995, arising out of an agreement reached between the first applicant trade union and the management F of the Department of Posts and Telecommunications of the former Bophuthatswana, the acting postmaster-general granted promotions and salary increases to some 513 of the department's 1 228 employees with effect from 1 July 1995. On or about 1 April 1996 the departments of posts and telecommunications of the former TBVC states were integrated G into the South African Post Office Ltd and Telkom South Africa Ltd respectively in terms of the Former States Posts and Telecommunications Reorganisation Act 5 of 1996 (the Reorganisation Act). Section 6(3) of the Reorganisation Act provides that irregularities which occurred before the transfer date 'in respect of parity adjustments, level placings, promotions, overstatements . . . shall be corrected by the company concerned . . .'. An investigation into the promotions H and salary increases granted by the acting postmaster-general concluded that they had been irregular because they had not been sanctioned by the Public Service Commission as prescribed by the Constitution of the Republic of South Africa Act 200 of 1993 (the interim Constitution) and none of the procedures, legal requirements and guidelines prescribed by s 212(4) of the interim Constitution and by the Public Service Act, 1994 (Proc 103 of 1994) had been followed. Acting in I terms of s 6(3) of the Reorganisation Act the first respondent reversed the promotions of the employees concerned. The applicants, far from disputing that the promotions had not been effected in terms of the legal procedures and requirements then in force, alleged that it was precisely because normal procedures and processes ordinarily applicable to promotions had not been followed for many years that the agreement between the employees and management J

1999 (2) SA p587

had been reached as an appropriate way of addressing a serious labour relations problem. The applicants accordingly A sought an order reviewing and setting aside the first respondent's decision to demote its employees who had formerly been employed by the Bophuthatswana Department of Posts and Telecommunications and declaring that all such former employees were entitled to the benefits of the promotions and salary increases granted by the acting postmaster-general with effect from 1 July 1995. B

At the hearing the first respondent argued that the matter fell within the exclusive jurisdiction of the Labour Court and that the High Court had no jurisdiction to grant the relief sought. For the purposes of this argument the first respondent accepted that it had been an organ of State when the decision sought to be reviewed had been taken and that it should, therefore, be regarded as the State for the purposes of s 157 of the Labour Relations Act 66 of 1995. C

Held, that the Labour Relations Act applied to applications to review decisions taken or acts performed by the State in its capacity as employer (s 158(1)(a)(iv)) and to applications for declaratory orders (s 158(1)(h)) instituted after 11 November 1996 (the date of commencement of the Act). (At 595H/I—I) D

Held, further, that the fact that the applicants sought two different forms of relief, namely a review and setting aside of a decision and a declaratory order, had to be taken into account in deciding whether or not the Labour Court had exclusive jurisdiction: if the Court found that the promotions had been unlawful and therefore invalid, that finding would be an insurmountable obstacle to the application for review in that it would have the same effect as the first respondent's E decision to reverse the irregular promotions in terms of the Reorganisation Act. (At 596E—H, summarised.)

Held, further, that, insofar as the applicants had implied, if not stated expressly, that the first respondent had violated its employees' rights in terms of s 24 of the interim Constitution, it had to be accepted that the High Court had concurrent jurisdiction with the Labour Court regarding that alleged violation (s 157(2). (At 596H/I—J.) F

Held, further, that, since it could not be found on the probabilities that the dispute between the parties had arisen before 11 November 1996, that applicants had not established that the High Court would have jurisdiction in respect of the application for the declaratory order by virtue of the transitional arrangements provided for in s 21(1) of the Seventh G Schedule to the Labour Relations Act. (At 598D—E.)

Held, further, as to whether the claim for the declaratory order was ancillary to the claim for relief on review, that the causa for the declaratory order was completely different from the causa for review: the Court would have to be satisfied that the promotions had been made in accordance with the law before granting the declaratory order, which H was entirely different from deciding whether the decision taken by the first respondent to correct the allegedly irregular promotions had properly been taken. There was, however, a connection between the two: a finding that the promotions had not been lawful and a consequential refusal to grant the declaratory order would obviously facilitate, if not constitute, a finding that the promotions had been irregular for the purposes of s 6(3) of the Reorganisation Act. (At I 598H/I—599A/B.)

Held, accordingly, given that the Labour Court had exclusive jurisdiction to hear the application for the declaratory order and that the High Court could only give an effective order on the merits of the application for review if it had jurisdiction in respect of the whole application, that the objection to jurisdiction had to be upheld. (At 599A/B—B/C.) J

1999 (2) SA p588

Cases Considered

Annotations A

Reported cases

Coin Security Group v SA National Union for Security Officers and Other Workers and Others 1998 (1) SA 685 (C): applied

De Bruin v Director of Education 1934 AD 252: referred to B

Directory Advertising Cost Cutters v Minister for Posts, Telecommunications and Broadcasting and Others 1996 (3) SA 800 (T): referred to

Durban City Council v Minister of Labour and Another 1953 (3) SA 708 (N): dictum at 712A—D applied

Dusheiko v Milburn 1964 (4) SA 648 (A): referred to

Estate Bodasing v Additional Magistrate, Durban, and Another 1957 (3) SA 176 (D): dictum at 180H—181A C applied

Ewing McDonald & Co Ltd v M & M Products Co 1991 (1) SA 252 (A): dictum at 256G applied

Hermes Versekeringsmaatskappy v Dartnell 1980 (4) SA 279 (W): dictum at 279H applied

Hulett's South African Refineries Ltd v South African Railways and Harbours 1945 NPD 413: dictum at 419—20 D applied

Hyperchemicals International (Pty) Ltd and Another v Maybaker Agrichem (Pty) Ltd and Another 1992 (1) SA 89 (W): referred to

Independent Municipal and Allied Trade Union v Northern Pretoria Metropolitan Substructure and Others 1999 (2) SA 234 (T): applied

Kikillus v Susan 1955 (2) SA 137 (W): compared E

Lenz Township Co (Pty) Ltd v Lorentz NO en Andere 1961 (2) SA 450 (A): referred to

Lewis & Marks v Middel 1904 TS 291: referred to

Malherbe v Britstown Municipality 1949 (1) SA 281 (C): compared

Ex parte Pan-African Tanneries Ltd (Under Judicial Management) 1950 (4) SA 321 (O): referred to

Radebe and Others v Eastern Transvaal Development Board 1988 (2) SA 785 (A): referred to F

Reickhoff v Jacobs 1967 (1) SA 680 (W): compared

Spie Batignolles Société Anonyme v Van Niekerk: In re Van Niekerk v SA Yster en Staal Industriële Korporasie Bpk en Andere 1980 (2) SA 441 (NC): referred to

Suid-Afrikaanse Sentrale Ko-operatiewe Graanmaatskappy Bpk v Shifren and Others and the Taxing Master G 1964 (1) SA 162 (O): referred to

Thermo Radiant Oven Sales (Pty) Ltd v Nelspruit Bakeries (Pty) Ltd 1969 (2) SA 295 (A): dictum at 310D applied

Titty's Bar and Bottle Store (Pty) Ltd v A B C Garage (Pty) Ltd and Others 1974 (4) SA 362 (T): applied

Trade Fairs and Promotions (Pty) Ltd v Thomson and Another 1984 (4) SA 177 (W): referred to H

Tuckers Land and Development Corporation (Pty) Ltd v Perpellief 1978 (2) SA 11 (T)...