South African Chemical Workers' Union and Another v African Commerce Developing Co (Pty) Ltd t/a Buffalo Tapes

• Jurisdiction: South Africa
• Judge: Smalberger JA, Marais JA, Zulman JA, Melunsky AJA, Mpati AJA
• Judgment Date: 26 May 2000
• Citation: 2000 (3) SA 732 (SCA)
• Docket Number: 107/98
• Hearing Date: 08 May 2000
• Counsel: P A Buirski for the appellants. No appearance for the respondent.
• Court: Supreme Court of Appeal

Smalberger JA:

[1] This is an appeal, in terms of s 17C(1)(a) of the Labour Relations J

Smalberger JA

Act 28 of 1956 (the Act), against the decision of the Labour Appeal A Court (the LAC) in the present matter, reported as African Commerce Developing Company (Pty) Ltd t/a Buffalo Tapes v SACWU & Another [1997] 12 BLLR 1537 (LAC) (the judgment). The appeal concerns the proper interpretation of s 17(21A)(a) of the Act. The main issue which arises for decision is whether the granting of condonation by the industrial court (the IC) is appealable before the IC has determined the dispute between the parties concerning B an alleged unfair labour practice.

[2] The relevant facts appear from the judgment at 1538C - I and need not be repeated. Suffice it to say that the second appellant, Mr Protus Dladla (Dladla), was dismissed from his employment with the respondent on 13 March 1992. He claimed that his dismissal was unfair and requested the first appellant (the union) to take up his C cause. The matter was referred to the IC by the union and Dladla after a conciliation board had failed to resolve the dispute between them and the respondent. The referral was substantially out of time and they were obliged to seek condonation from the IC. After a considerable D delay the application for condonation was eventually heard by the IC on 18 October 1994 and granted on 8 November 1994. The union and Dladla were ordered to pay the respondent's costs.

[3] The respondent noted an appeal to the LAC. Myburgh JP came to the conclusion that the order of the IC was appealable at that E stage. The LAC considered the appeal and allowed it. No costs order was made. The determination of the IC was altered to provide for the dismissal of the application for condonation and certain ancillary relief (see the judgment at 1542D). The union and Dladla now appeal against the LAC's decision with the necessary leave. F

[4] The vexed question of whether a finding of the IC on a preliminary issue is appealable before the IC has determined the dispute referred to it in terms of s 46(9) of the Act has been the subject of conflicting decisions in the LAC in the past (see Liberty Life Association of Africa Ltd v Niselow (1996) 17 G ILJ 673 (LAC) and the cases referred to). More specifically, views have differed on whether the grant of condonation is immediately appealable. The answer has to be sought and found in the wording of s 17(21A))(a) of the Act. It is trite that a right of appeal from a decision of a statutory tribunal must be found in the statute governing that tribunal. H

[5] Section 46(9)(c) of the Act provides that the IC shall determine a dispute referred to it 'as soon as possible' after such referral. It was common cause that the legislative policy underlying the Act was that disputes should be resolved in an expeditious and inexpensive manner (cf National Union...