1 November 2009

Appealing the unappealing effects of deregistration

What happens when an appeal is noted in the Labour Court (the Court)? The effect of noting an appeal is regulated by Rule 49 (11) - (14) of the Uniform Rules. The Uniform Rules provide that the operation and execution of the order taken on appeal, will be suspended pending the decision of the appeal. However, neither the Labour Appeal Court Rules nor the Labour Relations Act (the LRA) have a corresponding provision. Appeals to the Labour Appeal Court (the LAC) are governed by section 166 of the LRA, which is silent on the effect of noting an appeal.

In National Police Services Union v National Commissioner of the National Police Services & Others (1999) 20 ILJ 2408 (LC), the Court considered this issue. The trade union was de-registered after failing to meet the threshold requirements for representativity. The union brought an urgent application in which it sought to declare the de-registration null and void. Pending the finalisation of the matter, the union was granted interim relief by the court (to represent its members at disciplinary hearings). However, on the return day, the Court dismissed the union's application. The union filed a notice to appeal.

After filing the appeal, the union alleged that it experienced a number of problems related to the exercise of its organisational rights. It sought another urgent relief, claiming that the SAPS afforded the union the full recognition rights prior to its de-registration, pending the finalisation of its appeal matter. The SAPS argued that, at the time of the judgment, the status a quo was that the union had been de-registered. It only retained the right to represent its members at disciplinary hearings and had no other organisational rights. The Unions argument was that the decision of the SAPS to de-register the union was subject to an appeal before the LAC. Therefore, the position as at the date when the SAPS purported to de-register the union was applicable.

The Court held that the power conferred on it, to grant leave to appeal subject to conditions and the court's inherent powers, could be used to achieve a similar effect of noting an appeal in the High Courts.

However, the Court was not prepared to assume this position. The Court found that the assumption of this power is subject to the exercise of a judicial discretion, provided that good cause is shown.

The Court found that it should not exercise such powers considering the facts of the case (assuming the Court possessed these powers). The Court held that, in such instances, the onus rests on the union to satisfy the Court that there are good grounds for the exercise of discretion in its favour. The union's application was dismissed.

The judgment confirms the position that (although the LAC Rules and the LRA remain silent on the effect of noting an appeal) the Court may be prepared to assume the position of the High Courts on this matter.

This assumption of power will be subject to the exercise of a judicial discretion. Until such time as the discretion is shown, it appears that the effect of de-registration will not be suspended, despite the existence of an appeal application.

Johan Botes, Director and
Mpho Thulare, Candidate Attorney,
Employment law

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