Liberty Life Association of Africa v Kachelhoffer NO and Others

• Jurisdiction: South Africa
• Judge: Van Reenen J and Jali J
• Judgment Date: 12 April 2001
• Citation: 2001 (3) SA 1094 (C)
• Docket Number: 2447/2000
• Hearing Date: 22 September 2000
• Counsel: H van R Woudstra SC for the applicant. No appearance for the first respondent. C S Kahanovitz for the second to 23rd respondents.
• Court: Cape Provincial Division

Liberty Life Association of Africa v Kachelhoffer NO and Others
2001 (3) SA 1094 (C)

2001 (3) SA p1094

Citation	2001 (3) SA 1094 (C)
Case No	2447/2000
Court	Cape Provincial Division
Judge	Van Reenen J and Jali J
Heard	September 22, 2000
Judgment	April 12, 2001
Counsel	H van R Woudstra SC for the applicant.; No appearance for the first respondent.; C S Kahanovitz for the second to 23rd respondents.

Flynote : Sleutelwoorde E

Labour law — Courts — High Court — Jurisdiction — Common-law power to review decisions of industrial court — Such power surviving repeal of Labour Relations Act 28 of 1956 and enactment of Labour Relations Act 66 of 1995. F

Review — Peremption of — No reason in logic or in principle why right to review cannot become perempted.

Review — Peremption of — Whether right to review perempted by applicant's election to note and prosecute appeal without overtly manifesting intention to institute review proceedings — Such finding justified only if, by such conduct, applicant unequivocally abandoned G or waived right to review — Fact that appeal noted before review proceedings instituted not per se warranting inference of intention to abandon or waive right to review — Application for review brought some six months after appeal noted — Facts indicating that during that six-month period applicant having no intention of instituting review proceedings — Inability to secure early date for H hearing of appeal sole catalyst for review proceedings — That notwithstanding, could not be shown on balance of probabilities that applicant's conduct, viewed objectively, justifying inference of intention to abandon right to review.

Labour law — Courts — High Court — Jurisdiction — Common-law power to review decisions of industrial court — Whether Court should decline to I exercise such jurisdiction on basis of doctrine of forum (non) conveniens and 'remove' matter to Labour Appeal Court established under Labour Relations Act 66 of 1995 before which appeal pending — Schedule 7 to 1995 Act providing for transitional arrangements necessitated by repeal of Labour Relations Act 28 of 1956 — Item 22(5) in Part E of Schedule 7 J

2001 (3) SA p1095

providing for appeals from industrial court to Labour Appeal Court — When dealing with appeal in terms of item 22(5), A Labour Appeal Court enjoying status, authority, inherent power and standing equal to that enjoyed by Supreme Court of Appeal in relation to matters under its jurisdiction — Labour Appeal Court lacking original review jurisdiction and, like Supreme Court of Appeal, would exercise powers of review on appeal, entirely in its discretion, only on limited occasions for reasons of convenience and expediency — By contrast, B High Court retaining common-law powers to review industrial court decisions — Any inconvenience occasioned by hearing of appeal and review in separate Courts outweighed by forfeiture of effective remedy if High Court declining to exercise powers of review. C

Labour law — Courts — High Court — Jurisdiction — Common-law power to review decisions of industrial court — Whether Court should decline to exercise such jurisdiction on basis of doctrine of forum (non) conveniens and 'remove' matter to Labour Appeal Court established under Labour Relations Act 66 of 1995 before which appeal pending — In terms of s 167(3) Labour Appeal Court enjoying authority, D inherent powers and standing in relation to matters under its jurisdiction equal to that enjoyed by Supreme Court of Appeal in relation to matters under its jurisdiction — 'Removal' from High Court to Labour Appeal Court not competent for following reasons — (1) In terms of doctrine of forum (non) conveniens Court having power only to stay own proceedings to enable another court of competent E jurisdiction to exercise its jurisdiction — (2) High Court not having power to transfer matter to Labour Appeal Court as latter court at higher level in hierarchy of Courts — (3) 'Removal' pursuant to s 9(1) of Supreme Court Act 59 of 1959 not possible because Labour Appeal Court not a Division of High Court. F

Labour law — Courts — Labour Appeal Court — Jurisdiction — To review decisions of industrial court — Schedule 7 to Labour Relations Act 66 of 1995 providing for transitional arrangements necessitated by repeal of Labour Relations Act 28 of 1956 — Item 22(5) in Part E of Schedule 7 providing for appeals from industrial court to Labour Appeal Court established under 1995 Act — Use of word 'appeal' in item 22(5) not G capable of being construed as encompassing review — Fact that, with full knowledge that Labour Appeal Courts enjoying appeal and review powers under 1956 Act, Legislature nonetheless enacting item 22(5) indicating intention not to imbue Labour Appeal Court established under 1995 Act with statutory powers of review. H

Court — High Court — Jurisdiction — Common-law power to review decisions of industrial court — Whether Court should decline to exercise such jurisdiction on basis of doctrine of forum (non) conveniens and 'remove' matter to Labour Appeal Court established under Labour Relations Act 66 of 1995 before which appeal pending — In terms of s 167(3) Labour Appeal Court enjoying authority, inherent powers and standing in relation to matters under its jurisdiction equal to that enjoyed by Supreme Court of Appeal in relation to matters under its jurisdiction — 'Removal' from High Court to Labour Appeal Court not competent for following reasons — (1) In terms of doctrine of forum (non) conveniens Court having power only to stay own proceedings to enable another court of competent jurisdiction to exercise its jurisdiction — (2) High Court not having power to transfer matter to Labour Appeal Court as latter Court at higher level in hierarchy of Courts — (3) 'Removal' pursuant to s 9(1) of Supreme Court Act 59 of 1959 not possible because Labour Appeal Court not a Division of High Court.

Court — Labour Appeal Court — Jurisdiction of — To review decisions of industrial court — Schedule 7 to Labour Relations Act 66 of 1995 providing for transitional arrangements necessitated by repeal of Labour Relations Act 28 of 1956 — Item 22(5) in Part E of Schedule 7 providing for appeals from industrial court to Labour Appeal Court established under 1995 Act — Use of word 'appeal' in item 22(5) not capable of being construed as encompassing review — Fact that, with full knowledge that Labour Appeal Courts enjoying appeal and review powers under 1956 Act, Legislature nonetheless enacting item 22(5) indicating intention not to imbue Labour Appeal Court established under 1995 Act with statutory powers of review.

Court — High Court — Jurisdiction — Common-law power to review decisions of industrial court — Such powers surviving repeal of Labour Relations Act 28 of 1956 and enactment of Labour Relations Act 66 of 1995.

Court — High Court — Jurisdiction — Common-law power to review decisions of industrial court — Whether Court should decline to exercise such jurisdiction on basis of doctrine of forum (non) conveniens and 'remove' matter to Labour Appeal Court established under Labour Relations Act 66 of 1995 before which appeal pending — Schedule 7 to 1995 Act providing for transitional arrangements necessitated by repeal of Labour Relations Act 28 of 1956 — Item 22(5) in Part E of Schedule 7 providing for appeals from industrial court to Labour Appeal Court — When dealing with appeal in terms of item 22(5) Labour Appeal Court enjoying status, authority, inherent power and standing equal to that enjoyed by Supreme Court of Appeal in relation to matters under its jurisdiction — Labour Appeal Court lacking original review jurisdiction and, like Supreme Court of Appeal, would exercise powers of review on appeal, entirely in its discretion, only on limited occasions for reasons of convenience and expediency — By contrast, High Court retaining common-law powers to review industrial court decisions — Any inconvenience occasioned by hearing of appeal and review in separate Courts outweighed by forfeiture of effective remedy if High Court declining to exercise powers of review.

Jurisdiction — Of High Court — To review decisions of industrial court — Whether Court should decline to exercise such jurisdiction on basis of doctrine of forum (non) conveniens and 'remove' matter to Labour Appeal Court established under Labour Relations Act 66 of 1995 before which appeal pending — Schedule 7 to 1995 Act providing for transitional arrangements necessitated by repeal of Labour Relations Act 28 of 1956 — Item 22(5) in Part E of Schedule 7 providing for appeals from industrial court to Labour Appeal Court — When dealing with appeal in terms of item 22(5) Labour Appeal Court enjoying status, authority, inherent power and standing equal to that enjoyed by Supreme Court of Appeal in relation to matters under its jurisdiction — Labour Appeal Court lacking original review jurisdiction and, like Supreme Court of Appeal, would exercise powers of review on appeal, entirely in its discretion, only on limited occasions for reasons of convenience and expediency — By contrast, High Court retaining common-law powers to review industrial court decisions — Any inconvenience occasioned by hearing of appeal and review in separate Courts outweighed by forfeiture of effective remedy if High Court declining to exercise powers of review.

Jurisdiction — Of High Court — To review decisions of industrial court — Common-law powers to review decisions of industrial court surviving repeal of Labour Relations Act 28 of 1956 and enactment of Labour Relations Act 66 of 1995.

Jurisdiction — Of High Court — To review decisions of industrial court — Whether Court should decline to exercise such jurisdiction on basis of doctrine of forum (non) conveniens and 'remove' matter to Labour Appeal Court established...