Court name
Supreme Court
Case number
SA 69 of 2011
Case name
Gaoseb and Another v Standard Bank Namibia Ltd and Others
Media neutral citation
[1970] NASC 17
Judge
Mainga JA











REPORTABLE



CASE NO: SA 26/2015


IN
THE SUPREME COURT OF NAMIBIA


In
the matter between:


 




















NAMIBIA
FINANCIAL INSTITUTIONS UNION (NAFINU)



Appellant



and



 



NEDBANK
NAMIBIA LTD



First
Respondent



LABOUR
COMMISSIONER



Second
Respondent



 


Coram:                     
DAMASEB
DCJ, MAINGA JA and SMUTS JA


Heard:                      
7 August 2015


Delivered:                
19 August 2015



APPEAL JUDGMENT


SMUTS
JA (DAMASEB DCJ and MAINGA JA concurring):


[1]
The first
respondent, Nedbank Namibia Limited, a commercial bank, obtained an
order in the Labour Court against the appellant, a registered trade
union (the union) effectively interdicting it from calling out a
strike of Nedbank employees within the bargaining unit, pending the
determination of a dispute referred to the Labour Commissioner by
Nedbank under s 86 of the Labour Act 11 of 2007 (the Act).


[2]
The union
has appealed against the granting of that order to this court. The
question arises as to whether that order is appealable as of right or
is of an interlocutory nature, requiring the leave of the Labour
Court under s 18(3) of the High Court Act 16 of 1990. That subsection
provides:


No
judgment or order where the judgment or order sought to be appealed
from is an interlocutory order or an order as to costs only left by
law to the discretion of the court shall be subject to appeal save
with the leave of the court which has given the judgment or has made
the order, or in the event of such leave to appeal being refused,
leave to appeal being granted by the Supreme Court’.


Background


[3]
This
question for determination arises in the following way. The dispute
which has given rise to this appeal had its origins in the most
recent annual wage negotiations between the two protagonists. The
union is recognised as the bargaining agent for Nedbank employees
within the bargaining unit. This was in terms of a recognition
agreement entered into between the parties in 2010.


[4]
The parties
commenced wage negotiations in February 2015. Four sessions were held
on separate dates until the negotiations failed on 12 March 2015. The
union referred a dispute of interest to the Labour Commissioner under
s 82 of the Act. The latter in turn appointed a conciliator to deal
with the dispute. Conciliation meetings were held on four occasions
in April 2015. But these meetings failed to resolve the dispute
between the parties. The conciliator then issued a certificate of
unresolved dispute in terms of s 82(15) of the Act.


[5]
The parties
thereafter commenced negotiations on strike rules. They could not
agree on these either. The conciliator thereafter furnished the
parties with strike rules on 13 May 2015 in terms of s 76(2) of the
Act. The union gave notice of its intention to proceed with a strike
ballot process. Its members voted overwhelmingly in favour of a
strike.


[6]
In the
meantime, Nedbank on 28 April 2015 referred a dispute to the Labour
Commissioner under s 86 of the Act, complaining that the union had
refused to negotiate in good faith and had engaged in conduct which
was subversive of orderly collective bargaining during the wage
negotiations and thereafter. Nedbank maintain in that referral that
the stumbling block in the wage negotiations and conciliation had
been the question of medical aid. The union had filed a demand for a
100% employer’s contribution at the outset of the wage
negotiations. According to Nedbank, the issue of the employer’s
contribution to medical aid remained central to the union’s
position throughout the wage negotiations and during conciliation.
Nedbank pointed out that the issue of medical aid was subject to an
existing agreement reached between the parties in April 2014. It had
set the employer’s contribution to medical aid at the level of
60% for the 2014 financial year and 70% for the 2015 financial year.


[7]
The union
had disputed the manner in which the medical aid agreement had been
implemented and had itself on 26 September 2014 referred a dispute
under s 86 concerning the interpretation to be given to the relevant
term on that issue in the wage agreement.


[8]
It was
Nedbank’s position in its referral that the insistence on
renegotiating a term which had already been agreed to prior to its
expiry amounted to negotiating in bad faith and conduct subversive of
orderly collective-bargaining and in conflict with s 49 of the Act.
It applied in the referral for a declaratory order to that effect and
an order directing the union to return to the bargaining forum to
negotiate the remuneration package of employees within the bargaining
unit without reference to medical aid contributions. It also sought
to interdict the union and its members within the bargaining unit
from taking industrial action during those annual wage negotiations
until those negotiations had become unresolved and the further
provisions of the Act had been followed in respect of unresolved
disputes.


[9]
The union’s
position was that it had followed the provisions of the Act regarding
the procedures to be exhausted before a strike could be called out.
In particular, it had further polled its members who had
overwhelmingly supported a strike and that it should consequently
proceed with it.


Proceedings
in the Labour Court


[10]
Nedbank
then approached the Labour Court on an urgent basis for an interdict
to prevent the union from calling out the strike, pending the
determination of the dispute which it had referred to the Labour
Commissioner on 28 April 2015.  The matter came before the
Labour Court on 2 June 2015. On the following day the Labour Court
gave judgment and granted an order which included the following
interdicts against the union:


(a)      
. . .


(b)       
Pending the finalisation of the dispute referred to the Labour
Commissioner by the applicant on 28 April 2015 concerning the first
respondent’s conduct during the 2015 negotiations between the
applicant and the first respondent, the first respondent and its
office bearers and agents are interdicted and restrained from
organising, causing, directing, inviting or encouraging any of the
applicant’s employees to embark on any industrial action.


(c)       
Pending the finalisation of the dispute referred to the Labour
Commissioner by the applicant on 28 April 2015 concerning the first
respondent’s conduct during the 2015 wage negotiations between
the applicant and the first respondent, the first respondent’s
members employed by the applicant are interdicted from embarking on
any industrial action’.


[11]
The union
appealed against the granting of that order to this court. It applied
for and was granted leave for the appeal to be set down outside of
the court terms provided for in the rules of this court, given the
urgency of the appeal which relates to the right to strike in support
of annual wage negotiations.


Submissions
in this court


[12]
Nedbank, as
first respondent in this appeal, has raised the preliminary point
that the order granted by the Labour Court was of an interlocutory
nature and that the union required leave to appeal against the order
of the Labour Court and that the failure to have done so should
result in the appeal being struck from the roll with costs.


[13]
Mr
Heathcote, SC, who together with Ms B de Jager, who appeared for
Nedbank, argued that the interim interdict granted by the High Court
did not determine the rights of the parties in any final sense and
that this would only be done by the arbitrator to whom the dispute
would be referred, after having been appointed by the Labour
Commissioner to arbitrate that dispute. He argued that the order of
the Labour Court was thus interlocutory and that leave would be
required to appeal to this court. As leave had not been obtained, he
submitted that the appeal should be struck from the roll with costs.


[14]
Mr Marcus
who appeared for the union argued that the order of the Labour Court
bore all the hallmarks of a judgment or order as contemplated by s 18
of the High Court Act (and s 14 of the Supreme Court Act 15 of 1990).
He submitted that it was not interlocutory because it was, so he
contended, final in effect and not susceptible to alteration by the
court which had made it. He further argued that it was definitive of
the rights of the parties and had the effect of disposing of at least
a substantial portion of the relief claimed in the main proceedings.


Was
the order appealable without leave?


[15]
This court
has on several occasions considered the appealability of judgments
and orders of the High Court[1].
The starting point is s 18(1) which grants a right of appeal against
all ‘judgments and orders’ of the High Court. Its
corollary is s 14(1) of the Supreme Court Act which vests this court
with jurisdiction to hear and determine appeals from ‘any
judgment or order of the High Court’. The Labour Court is a
division of the High Court. (See s 115 of Act 11 of 2007).


[16]
In Knouwds
NO (in his capacity as Provisional Liquidator of Avid Investment
Corporation (Pty) Ltd) v Josea and Another
2010
(2)  NR 754 (SC) para 10
,
this
court stated in this context:


This
court has, with approval, accepted the meaning ascribed to the words
“judgment or order” set out in the case of
Zweni
v Minister of Law and Order

1993 (1) SA 523 (A) at 523I (see
Aussenkehr
Farms (Pty) Ltd and Another v  Minister of Mines and Energy and
Another
2005 NR 21 (SC)).
Generally speaking, the attributes to constitute an appealable
judgment or order are threefold, namely, the decision must be final,
be definitive of the rights of parties or must have the effect of
disposing of at least a substantial portion of the relief claimed in
the main proceeding. In terms of s 18(3) of the High Court Act
interlocutory orders are not appealable as of right and need the
leave of that court or, if that was refused, the leave of the Chief
Justice, given by him on petition, to be able to come on appeal’.


[17]
The
threefold attributes, drawn from
Zweni
and referred to by the court in
Knouwds,
have been frequently followed by this court.[2]
In
Zweni,
the court made the distinction between ‘judgments and orders’
– the phrase also employed in the Supreme and High Court Acts –
on the one hand which are appealable and ‘rulings’ on the
other hand which are not.


[18]
As was
stressed by this court in
Shetu
Trading,
the
principles set out in
Zweni
on the question of appealability are ‘not cast in stone’
but are ‘illustrative and not immutable’.[3]
They are thus ‘useful guidelines but not rigid principles to be
applied invariably’.[4]


[19]
Judgments
and orders with these attributes can thus be appealed against as of
right to this court. Section 18(3) creates an exception to this
general principle. Interlocutory orders or costs orders only left to
the discretion of the High Court cannot be appealed against except
with leave of the High Court, or where refused, on petition where
granted by this court. Leave was not sought in this instance.


[20]
The
question arises as to whether the order appealed against is a
judgment or order contemplated by s 14 of the Supreme Court Act and s
18(1) of the High Court Act. In this context, this court in
Shetu
stated[5]:


The
fact that leave to appeal is granted by a lower court does not put an
end to the issue whether a judgment or order is appealable. The
question of appealability, if an issue in the appeal, remains a
question for the appellate court to determine. If it decides that,
despite the fact that leave to appeal has been granted by the lower
court, the judgment or order is not appealable, the appeal will still
be struck from the roll’.
[6]


[21]
In this
matter, Nedbank had referred a dispute for arbitration to the Labour
Commissioner under s 86 of the Act. Orders were sought in terms of s
86(15) which empowers an arbitrator appointed by the Labour
Commissioner to grant interdicts, declaratory orders and an order
directing the performance of an act to remedy a wrong (in this case
directing the parties back to the negotiating forum).


[22]
Part C of
Chapter 8 of the Act deals with the arbitration of disputes. It
establishes arbitration tribunals under the auspices of the Labour
Commissioner to determine disputes in respect of labour matters. As
was stressed by the Labour Court  previously,[7]
 the  jurisdiction   to   grant
  urgent   relief   is  confined
 under  s 117(1)(
e)
to urgent relief including interdicts pending the resolution of
disputes referred to arbitration under chapter 8 of the Act.


[23]
That was
the nature of the relief sought from and granted by the Labour Court
in this matter, interdicting a strike pending the determination of
the arbitration of the dispute between the parties referred by
Nedbank under s 86. The arbitration proceedings would make a
definitive determination of the parties’ rights. The statutory
intention behind the new regime of arbitration of disputes is clearly
that Labour disputes would be determined with all due speed and not
subject to delays which had previously characterised court
proceedings. This underlying statutory intention was explained in
earlier Labour Court proceedings:


But
the Act did away with district labour courts. It placed greater
emphasis on conciliation and, of importance in this context, it
brought about a new regime of arbitration of disputes by specialised
arbitration tribunals operating under the auspices of the Labour
Commissioner. The provisions dealing with these tribunals in Part C
of the Act place emphasis upon expediting the finalisation of
disputes and upon the informality of those proceedings. The
restriction of participation of legal practitioners and the range of
time limits for bringing and completing proceedings demonstrate this.
Arbitrators are enjoined to determine matters fairly and quickly and
deal with the substantial merits of disputes with a minimum of legal
formalities.


The
overriding intention of the legislature concerning the resolution of
disputes is that this should be achieved with a minimum of legal
formality and with due speed. This is not only laudable but
particularly appropriate to labour issues. I stress that it is within
this context that the Act places greater emphasis on alternative
dispute resolution and confines the issues to be adjudicated upon by
this court (in terms of) s 117’.
[8]


[24]
Within this
statutory scheme, the Labour Court’s jurisdiction in granting
urgent relief under s 117(1)(
e)
is to be of a temporary nature and limited to relief pending the
final determination of a dispute by an arbitrator (in terms of
chapter 8).


[25]
Cronshaw
and Another v Coin Security Group (Pty) Ltd
1996
(3) SA 691A
,
concerned
the appealability of an order granting an interim interdict
pendente
lite
.
That court applied
Pretoria
Garrison Institutes v Danish Variety Products (Pty) Ltd
1948
(1) SA 839A and
Zweni
(that
in order to be appealable an order must be final in effect) and found
that an interim interdict
pendente
lite,

where a court had no intention of making a final and definitive
order, was not appealable.[9]


[26]
The order
of the court below is not final in effect and not definitive of the
rights of the parties. Nor does it have the effect of disposing of a
substantial portion of the relief claimed. That would still need to
be done in arbitration. The fact that the order is not susceptible to
change by the Labour Court itself, a factor heavily emphasised in
argument by Mr Marcus, is but a single factor which has been used to
explain the attribute of finality[10]
and is to be understood within that context. The overriding nature of
the order of the Labour Court is anything but final. It is plainly
temporary and is expressly stated to be. The fact that the Labour
Court is not in a position to alter that order does not elevate it to
the realm of finality. The order would clearly fall away upon the
award of the arbitrator.


[27]
The primary
forum chosen by the legislature for the determination of disputes is
an arbitration tribunal under the auspices of the Labour
Commissioner. Only an interim interdict can thus be granted by the
court pending the arbitration award by that tribunal. This
necessarily entails that prejudice may arise in the sense that time
runs – often crucial in annual wage negotiations – and
cannot be recalled as was acknowledged in
Cronshaw.[11]
But this would be a matter to be taken into account in the exercise
of its discretion by the Labour Court. In a civil context, a court
may (and often does) require an undertaking to pay damages if it
subsequently emerges that an interdict should not have been
granted.[12]


[28]
Schutz JA
in
Cronshaw
provides
a further explanation why the grant of a temporary interdict is
without prompt appeal.[13]
Prospective harm is a factor to be judged by the court of first
instance in weighing the balance of convenience. This weighing
exercise is aptly described by Schutz JA:


This
is a responsible and often difficult balancing, premised as it is on
the distinct possibility that the order be wrongly granted, because
of the incomplete information available to the judge, and sometimes
the haste with which such matters have to be dealt with. If the grant
of an interim interdict were appealable and leave were to be granted
(the test being reasonable prospects of success) the interim order
would be stayed. Such a stay would be destructive of the main object
of an interim interdict - to maintain the status
quo
pending the final determination of the main case.


The
stay may in its turn lead to what is called an application for leave
to execute (to put the order into operation again) where
considerations similar to those already weighed under the balance of
convenience would have to be re-assessed. The court of first instance
would then be required to reach a decision, on imperfect information,
a second time, all with regard to the interim situation. If it be
postulated that leave to appeal can and has been granted, the appeal
court would have to reconsider that situation without being in a
position to reach a final decision. From a practical point of view it
seems preferable that the merits of the interdict be left for final
determination at the trial, and that the interim relief, to which the
balance of convenience is relevant, be considered once only.


The
net effect of a contrary rule, allowing an appeal against the grant
of interim orders, could be the undermining of a necessarily
imperfect procedure, which is nonetheless usually best designed to
achieve justice’.
[14]


[29]
These
reasons for the non-appealability of the grant of interim interdicts
pending the finalisation of an action apply with equal force to
interim interdicts granted pending the finalisation of disputes under
s 86 of the Act. The court in
Cronshaw
found
that, even if leave were given (as had occurred in that matter) an
interim interdict
pendente
lite

would not be appealable on an application of the principles distilled
from the
Pretoria
Garrison
and
Zweni
cases.
It is not necessary for current purposes to make that finding in this
appeal, given the fact that the order of the Labour Court is
interlocutory and no leave was sought or granted.


[30]
The fact
that one of the parties – in this case, the union as emphasised
in argument – is caused inconvenience or at a disadvantage
(being delayed in exercising its strike weapon in annual wage
negotiations) is not taken into account in determining appealability,
as was expressly found in
Zweni.[15]
These
would be factors to be considered by the court granting the order
when weighing the balance of convenience and may conceivably be
raised in an application for leave to appeal. But more importantly
this predicament should hardly arise if the dispute resolving
mechanisms established by the Labour Act function effectively. That
Act after all brought about a new regime of resolving labour disputes
by specialised arbitration tribunals under the auspices of the Labour
Commissioner. The Act expressly contemplates that they are to go
about this important task with all due speed and with a lack of
formality to ensure these disputes are resolved expeditiously. This
principle is further underpinned by the statutory injunction to
arbitrators to make their award within 30 days of the conclusion of
the arbitration proceedings.[16]


[31]
At the
hearing of the appeal, counsel were asked at what stage the
arbitration proceedings are. Counsel, relying on instructions,
replied that no date had even been set for those proceedings. This,
despite the fact that the dispute had been referred on 28 April
already - some three and a half months ago. This inexplicable delay
can in no way be ascribed to the fact the interdict proceedings were
brought in the Labour Court. Those proceedings, launched on 31 May
2015 (more than a month after the dispute had been referred),
concerned an interdict
pending
the determination of the dispute so referred. The Labour Court
application had no legal effect upon the determination of that
dispute. If anything, it accentuated what the Act provides –
that disputes referred under s 86 should be expeditiously disposed
of. The Labour Court application expressly and correctly contemplated
that the arbitration under s 86 should proceed and was entirely
ancillary to those proceedings. Indeed, if those proceedings had gone
ahead as contemplated by the Act, they should already have been
completed and an award made by now or very shortly from now. These
proceedings on appeal exemplify what the Act seeks to prevent -
protracted litigation of labour disputes with the attendant
unsatisfactory features of escalating costs, delays and uncertainty
and the spectre of the courts not being in a position to address and
resolve the real dispute between the parties.


[32]
What
is clear from the aforegoing is that an interim interdict as granted
by the Labour Court is inherently an interlocutory order upon an
application of the principles laid down in
Zweni,
which
have been applied in this Court. Leave was thus required under s
18(3) of the High Court Act. It had not been sought and was thus
absent. Given what was stated in
Cronshaw[17],
cited
with approval in
Shetu[18],
it is by no means clear that the order would even have been
appealable with leave. But that further question is left open.


[33]
In
the absence of leave, it follows that the appeal is to be struck from
the roll. In those circumstances, costs should follow the event.


[34]
The
appeal is accordingly struck from the roll with costs. Those costs
include the costs of one instructing and two instructed counsel.
 


__________________


SMUTS
JA


 


___________________


DAMASEB
DCJ


 


___________________


MAINGA
JA



 


APPEARANCES



























APPELLANT:



N
Marcus



 



Instructed
by Nixon Marcus Law Office



 



 



FIRST
RESPONDENT:



R
Heathcote SC (with him B de Jager)


Instructed
by Kopplinger Boltman Legal Practitioners




















[1]
See, for example,
Vaatz
and Another v Klotzsch and Others
,
unreported judgment of this court, SA 26/2001, dated 11 October
2002;
Aussenkehr
Farms (Pty) Ltd and Another v Minister of Mines and Energy and
Another

2005 NR 21 (SC);
Wirtz
v Orford and Another

2005 NR 175 (SC);
Handl
v Handl

2008 (2) NR 489 (SC); M
inister
of Mines and Energy and Another v Black Range Mining (Pty) Ltd

2011 (1) NR 31 (SC);
Knouwds
NO (in his capacity as provisional liquidator of Avid Investment
Corporation (Pty) Ltd) v Josea and Another

2010 (2) NR 754 (SC);
Namib
Plains Farming and Tourism CC v Valencia Uranium (Pty) Ltd and
Others

2011 (2) NR 469 (SC).
Shetu
Trading CC v Chair, Tender Board of Namibia and Others
2012
(1) NR 162 (SC);
Kahuure
and Another in re Nguvauva v Minister of Regional and Local
Government and Housing and Rural Development and Others
2013
(4) NR 932 (SC).




[2]
See for example in
Knouwds,
NO, supra,
para
10,
Aussenkehr
Farms (Pty) Ltd v Minister of Mines and Energy and Another
2005
NR 21 (SC) at p 29;
Shetu
Trading, supra,
para
18 – 19.
Kahuure,
supra,

para 18.




[3]
Supra at para
22.




[4]
Supra at para
22.




[5]
Supra at
para 24.




[6]
See Cronshaw
and Another v Coin Security Group (Pty) Ltd
1996
(3) SA 686 (A) at 689B-D.




[7]
Meatco v
Namibia Food and Allied Workers Union and Others
2013
(3) NR 777 (LC) para 24 – 25.




[8]
Meatco, supra,
para 24 quoting
Namdeb
Diamond Corporation v Mineworkers Union of Namibia and Others

Case No LC 103/2011, unreported 13/04/2012.




[9]
Supra at
690 – 691.




[10]
Zweni supra.




[11]
Supra
at 690H-I.




[12]
Cronshaw supra
at 690I-J.




[13]
Cronshaw supra
at 691B-C.




[14]
Supra at
691 B-F.




[15]
Supra at
533B-C. See also
South
Cape Corporation (Pty) Ltd v Engineering Management Services (Pty)
Ltd
1977
(3) SA 534 (A) at 550D-H.




[16]
S 86(18) of Act 11
of 2007.




[17]
Supra at
689B-D.




[18]
Supra in
para 22.