Photocircuit SA (Pty) Ltd v De Klerk NO and De Swardt NO and Others

• Jurisdiction: South Africa
• Citation: 1989 (4) SA 209 (C)

Photocircuit SA (Pty) Ltd v De Klerk NO and De Swardt NO and Others
1989 (4) SA 209 (C)

1989 (4) SA p209

Citation	1989 (4) SA 209 (C)
Court	Cape Provincial Division
Judge	Friedman J and Berman J
Heard	April 18, 1989; April 19, 1989; April 20, 1989
Judgment	April 28, 1989

Flynote : Sleutelwoorde D

Labour law — Labour Relations Act 28 of 1956 (as amended by Act 83 of 1988) — Labour Appeal Court — Review of decisions of industrial E court in terms of s 17B(2)(a) — Powers of review of Labour Appeal Court limited to those referred to in s 24(1) of Supreme Court Act 59 of 1959 — Supreme Court, with inherent powers of review in addition to those conferred by s 24, retains jurisdiction to review decisions of industrial court.

F Labour law — Labour Relations Act 28 of 1956 (prior to amendment by Act 83 of 1988) — Industrial court — Referral of unresolved disputes from industrial council to industrial court under s 46(9)(a)(i) for determination — Who may refer — Industrial council under obligation to refer disputes to industrial court, but it remains open to any party to dispute to do so — Referral of dispute to industrial G court by trade union, being party to dispute, a valid referral.

Labour law — Labour Relations Act 28 of 1956 — Industrial council — Jurisdiction to settle dispute between employers and employees conferred by s 23 — 'Employers' not limited to employers who are members of industrial council — Industrial council thus has jurisdiction to mediate dispute between employer, who is not member of H council, and its employees.

Headnote : Kopnota

Section 17B(2)(a) of the Labour Relations Act 28 of 1956 (as amended by the Labour Relations Amendment Act 83 of 1988) provides that 'the proceedings of the industrial court may be brought under review before a Labour Appeal Court'. The grounds upon which the Labour Appeal Court I may exercise its powers of review are limited to those referred to in s 24(1) of the Supreme Court Act 59 of 1959. By contrast, the Supreme Court has inherent powers of review in addition to those conferred upon it by s 24 of the Supreme Court Act. It is a well-established principle that where the Supreme Court has not been deprived of jurisdiction, but there is another court which has jurisdiction upon the matter in issue, the Supreme Court has concurrent jurisdiction. There are no indications in the Labour Relations Act, as amended, of an intention on the part J of the Legislature to oust the jurisdiction of the

1989 (4) SA p210

A Supreme Court completely. It would be inconceivable that the Legislature would have intended to oust the jurisdiction of the Supreme Court and replace it with a body having a review jurisdiction more limited than that of the Supreme Court. The Supreme Court accordingly retains the power to review decisions of the industrial court.

Section 46(9)(a) (i) of the Labour Relations Act (prior to its amendment by the 1988 Act) provided that if an industrial council had failed B to settle a dispute within 30 days of the dispute being referred to it, 'the dispute shall be referred to the industrial court for determination'. In casu, one of the issues raised was whether the Legislature's intention was that the only valid referral of a dispute to the industrial court under the subsection would be a referral by the industrial council concerned. The Court held that the true meaning of the subsection was that there was an obligation upon the industrial council to refer the dispute to the industrial court, but, at the same time, that it remained open to a party to the dispute to do so. C The referral of the dispute to the industrial court in the instant case by the trade union which had been one of the parties to the dispute was, accordingly, held to have been a valid referral.

Section 23(1) of the Act confers jurisdiction upon an industrial council to settle disputes between employers and employees in the industry for which such industrial council was established. The section does not limit 'employers' to those who are members of an employers' organisation. An industrial council is therefore empowered to D settle disputes between employers who are not members of the industrial council and their employees.

Case Information

Application for review of an order and a determination made by an industrial court. The facts appear from the reasons for judgment.

D van Reenen SC for the applicant.

E W R E Duminy for the first and second respondents.

L A Rose-Innes for the third to fourteenth respondents.

A C Oosthuizen for the fifteenth respondent.

Cur adv vult.

F Postea (April 28).

Judgment

Friedman J:

This is an application for the review of an order and a determination made by the industrial court in terms of ss 43(4) and 69(9)(a) respectively of the Labour Relations Act 28 of 1956 (hereinafter referred to as 'the Act').

G Applicant is a company which manufactures electronic printed circuit boards. Fourth to fourteenth respondents, who were at all relevant times until 19 May 1988 employed by applicant, are members of the Electrical and Allied Workers' Trades Union of South Africa, a trade union incorporated and registered as such in terms of the Act. The trade H union has been cited as third respondent in these proceedings. Fifteenth respondent is the National Industrial Council for the Iron, Steel, Engineering and Metallurgical Industry.

The following are the circumstances which gave rise to this application. In 1987 fourth to fourteenth respondents became members of third respondent. Both the employees and third respondent I requested applicant to deduct the trade union subscriptions from their wages and to pay these to third respondent, and applicant was furnished with stop-orders signed by the employees authorising such payments. However, applicant refused to make the deductions. On 14 March 1988 third respondent declared a dispute with applicant relating to applicant's failure to make these deductions and referred the dispute to J fifteenth respondent. Fifteenth

1989 (4) SA p211

Friedman J

A respondent attempted to arrange a meeting between the parties on 15 April 1988 in order to resolve the dispute but applicant failed to attend the meeting. On 16 May 1988 a strike ballot was held. Thirteen out of a total of 14 members of third respondent were present at the ballot and voted in favour of a strike being called. A strike commenced on 17 May 1988 and on 19 May 1988 applicant dismissed fourth B to fourteenth respondents. On 20 June 1988 third respondent and fourth to fourteenth respondents applied to the industrial court for a reinstatement order in terms of s 43(4) of the Act. Applicant was not represented at the hearing and first respondent (Mr P P de Klerk, a member of the industrial court) made an order reinstating fourth to fourteenth respondents.

C Thereafter third to fourteenth respondents applied to the industrial court for a final determination in terms of s 46(9)(a) of the Act. This application was heard by second respondent (Ms A M de Swardt, a member of the industrial court) on 13 and 14 July 1988. Applicant was not represented at the hearing on 13 July 1988, but on 14 July 1988 applicant's sole director, Mr Peschkes, appeared and took only one point, viz that the industrial court had no jurisdiction to make D the determination sought. Second respondent dismissed this objection and on 14 July 1988 made the following order:

'In terms of s 46(9) of the Labour Relations Act 28 of 1956, as amended, the following order is made as a final determination of the dispute between the parties:

1. Respondent is ordered to pay each of the second to twelfth E applicants their weekly wages for the period 19 May 1988 to date hereof at the rates which were applicable in each case immediately prior to their dismissal on 19 May 1988, which payment shall be made to first applicant at 18a Capuchin Street, Athlone, on or before 12 noon on 15 July 1988. Any sums already paid to applicants in lieu of notice fall to be deducted from payments to be made in F terms of this order.

2. Respondent is ordered to reinstate such of the second to twelfth applicants as tender their services to respondent on or before 08h00 on Monday 18 July 1988 on terms and conditions no less favourable than those which governed their employment prior to their dismissal on 19 May 1988.

3. The reinstatement as aforesaid is to be retrospective to 19 May 1988 and any payments made in terms of clause 1 of this order shall G be deemed to have been made in compliance with this clause.

4. Should respondent fail to reinstate any of the applicants as contemplated in clause 2 of this order, respondent is ordered to pay to each such applicant his weekly wages as aforesaid for a further period of three months as from date of this order.

5. Leave is granted to respondent to apply to this Court, on one H week's notice to first applicant, for a variation of clause 4 of this order should any of the affected applicants be reinstated by respondent or obtain alternative employment prior to the expiry of the three-month period aforementioned.

6. Should any of the second to twelfth applicants succeed in obtaining alternative employment within three months from date hereof, such applicant is to notify first applicant who in turn shall notify I respondent of the fact of such alternative employment having been obtained and the date at which such alternative employment commenced.'

In her reasons for judgment, which were furnished on 5 September 1988, second respondent pointed out that applicant's objection to the jurisdiction of the industrial court was based on the argument J that applicant was

1989 (4) SA p212

Friedman J

A not a party to the industrial council's agreement and that the industrial council accordingly had no jurisdiction to deal with the dispute...