SACCAWU and Others v President, Industrial Tribunal, and Another

• Jurisdiction: South Africa
• Judge: Hefer ADCJ, Howie JA, Plewman JA, Melunsky AJA and Farlam AJA
• Judgment Date: 29 November 2000
• Citation: 2001 (2) SA 277 (SCA)
• Docket Number: 522/98
• Hearing Date: 20 November 2000
• Counsel: M Khosa for the appellant. No appearance for the first respondent. R G Buchanan SC for the second respondent.
• Court: Supreme Court of Appeal

Melunsky AJA: H

[1] This is an appeal against a decision of the High Court of Venda (Coetzee AJ). The appellants, the applicants in the Court a quo, are the South African Commercial Catering and Allied Workers Union (the Union) and 173 individuals who had been employed by Venda I Sun Hotel and Casino Ltd, the second respondent in the Court a quo (the second respondent). The first respondent in the High Court was the president of the industrial tribunal of Venda. At the relevant time labour matters in Venda were regulated by the Venda Labour Relations Proclamation 3 of 1991 (the proclamation). The industrial tribunal of J

Melunsky AJA

Venda (the tribunal), which was established in terms of the proclamation, was authorised to determine disputes A relating to alleged unfair labour practices.

[2] In the Court a quo the appellants sought orders in the following terms:

'(1)

calling upon the respondents to show cause why the determination and/or proceedings of the tribunal given on or about B 9 May 1997 under case No IT 23/06/93 should not be reviewed and corrected or set aside; and

(2)

calling upon the first respondent, the president of the said tribunal, to dispense (sic) within 21 days of the receipt of the notice of motion to the Registrar of this honourable Court the C record of such proceedings sought to be corrected [and] set aside together with any such reasons as [he] is by law required or obliged to give or make and to notify the applicants that he has done so'.

Coetzee AJ dismissed the application with costs but granted the appellants leave to appeal to this Court. D

[3] The application arose out of the dismissal of 180 employees (173 of whom are appellants in this Court) by the second respondent during January 1993. Some of the employees were dismissed for taking part in an illegal strike and others for being absent from work without E leave. In June 1993 the Union and the dismissed workers brought an application before a tribunal consisting of Advocates Nthabalala and Mojapelo and Mr Netshifhefhe, an attorney, for an order declaring the dismissals to be an unfair labour practice and for reinstatement of the employees. The second respondent raised a point in F limine to the effect that, in terms of the proclamation, an application for reinstatement was time-barred and that the employees were not entitled to that form of relief. The tribunal decided the point in the second respondent's favour and thereafter the proceedings were adjourned. They resumed at a later date before a tribunal consisting only of Mojapelo (as president) and Netshifhefhe. After a G lengthy hearing the tribunal eventually made its determination on 9 May 1997. It held that the dismissals of the striking workers did not constitute an unfair labour practice but that the dismissals of seven of the applicants who were absent without leave were procedurally unfair. There was no express determination relating to the other workers who had been dismissed for being absent without leave but from H the reasons given it may be assumed that the tribunal considered that their dismissals did not amount to an unfair labour practice.

[4] The application in the Court a quo was based on two main grounds - irregularities allegedly committed by the tribunal and the alleged bias of both of its members. In this Court counsel for the I appellants restricted his argument to the question of bias. He was...