Reportable
406/99
IN THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
In the matter between
THE LION MATCH COMPANY LIMITED
Appellant
and
PAPER PRINTING WOOD & ALLIED                  First Respondent
WORKERS UNION
A FURTHER 217 RESPONDENTS              2nd – 218th Respondents
Composition of the Court :
SMALBERGER ADCJ, OLIVIER,
STREICHER,
FARLAM
JJA;
CHETTY AJA
Date of hearing :
11 MAY 2001
Date of delivery :
30 MAY 2001
SUMMARY
Review of application to establish conciliation board – review brought after
conciliation board failed to resolve dispute – application dismissed because
not brought within a reasonable time.
J U D G M E N T
FARLAM JA

1.
INTRODUCTION
[1] This is an appeal from a judgment of Jappie J sitting in the Durban
and Coast Local Division of the High Court in which the appellant’s
application for a declaratory order was dismissed with costs.
[2] The appellant carries on business as a manufacturer and distributor of
safety matches and has a factory in Durban.
[3] The first respondent was a trade union registered in terms of the
provisions of the Labour Relations Act 28 of 1956, which had been accorded
recognition by the appellant in respect of its employees at its Durban factory.
Although Act 28 of 1956 was repealed by Act 66 of 1995 it is common
cause between the parties that it governs the dispute between them.   (In
what follows I shall refer to Act 28 of 1956 as ‘the Act’.)
[4] The second to 218th respondents were all employees of the appellant
at its Durban factory until 22 August 1996 when they were dismissed by the
appellant from its employ after a strike took place at the factory.  The second
to 142nd respondents are members of the first respondent.
[5] The order sought by the appellant was one declaring that an
application made by the first respondent to the Regional Director of

Manpower for Kwa Zulu Natal for the establishment of a conciliation board
was invalid for want of compliance with the provisions of section 35(2)(b)
of the Act.  The application asked for a board to be set up to consider and, if
possible, settle the dispute between the first respondent and the appellant
concerning the alleged unfair dismissal of the second to 218th respondents
from the appellant’s employ.  The appellant also sought in the order a
declaration that the result of the invalidity of the application was that there
had been no valid referral of the dispute to a conciliation board (within the
meaning of section 46(9)(a) of the Act) with the further result that the
industrial court had no jurisdiction to determine the dispute under the
provisions of section 46(9) of the Act.
2.
RELEVANT STATUTORY PROVISIONS
[6] Before the facts in this case and the contentions of the parties are
summarised it is appropriate to set out the relevant statutory provisions.
[7] Section 35 of the Act dealt with the establishment of conciliation
boards.  As far as is material it read:
‘(1)  Whenever a dispute exists in any undertaking,
industry, trade or occupation in any area, and the
parties to the dispute are-
(a)  one or more trade unions;
(b)  one or more employees; or

(c)  one or more trade unions and one or more employees,
on the one hand, and
(d)  one or more employers’ organizations;
(e)  one or more employers; or
(f)  one or more employers’ organizations and one
or more employers,
on the other hand (hereinafter referred to as the
parties to the dispute), any such party may apply to
the inspector defined by regulation, in the form
and manner prescribed for the establishment of a
conciliation board to consider and, if possible,
settle the dispute.
….
(2)(b)  If the applicant or one of the applicants is a
trade union or an employers’ organization, the
application shall be in writing and signed by an
office-bearer
or
official
of
the
union
or
organization concerned, as the case may be, and
that application shall be accompanied by a
certificate stating that in taking the steps which led
to the dispute and in making the application the
union or organization and the office-bearers or
officials concerned in the matter have observed all
the relevant provisions of the constitution of the
union or organization, as the case may be.’
[8] Section 46 (9)(a) read as follows:
‘(9)(a)  The industrial court shall not determine a
dispute regarding an alleged unfair labour practice
unless such dispute has been referred for

conciliation to either an industrial council having jurisdiction
or, where no such industrial council exists, to a
conciliation board.’
3.
FACTS
[9] On 30 July 1996 a substantial number of the employees of the
appellant embarked on what was referred to in the affidavits as a ‘work
stoppage’, which appears on the evidence to have been intended to induce
the appellant to transfer those of its employees who belonged to the first
respondent from membership of the appellant’s pension fund to membership
of the first respondent’s provident fund.  On 14 August 1996 the appellant
and the first respondent finally reached agreement with regard to the transfer
of the employees concerned to the first respondent’s provident fund.
Despite this agreement the work stoppage continued.  On 16 August 1996
the appellant issued a notice calling upon its employees to resume work on
19 August 1996.  After they had failed to do so the appellant, on 22 August
1996, issued a notice dismissing the second to the 218th respondents from its
employ.
[10] On 27 August 1996 the first respondent wrote to the appellant
challenging the appellant’s dismissal of its members and alleging that the
dismissal was both procedurally and substantially unfair.  An attempt made
by the first respondent to arrange an urgent meeting between its

November 1996 the Regional Director received an application for the
establishment of a conciliation board from the first respondent.  The
application was accompanied by a certificate of compliance which reads as
follows:
‘I, the undersigned, LUCKY MHLONGO, Acting
Branch Secretary of the PAPER PRINTING
WOOD & ALLIED WORKERS UNION, hereby
certify that in taking the steps which led to the
dispute referred to and in making this application
for the establishment of a Conciliation Board, the
Union
and
its
office-bearers
and
officials
concerned
have
observed
all
the
relevant
provisions of the Constitution of the Union.’
This certificate was signed by Mr Mhlongo.
A copy of the application was transmitted to the appellant, as required by
section 35(2)(a) of the Act.  According to the application this occurred on 28
October 1996.
[11] After satisfying himself that the application met the minimum
requirements of section 35 of the Act and that the parties were in agreement
with the terms of reference of the conciliation board, Mr VL le Fortier, an
Assistant Director in the Department of Labour in Kwa Zulu Natal, who had
been appointed as an inspector for the purposes, inter alia, of section 35 of
the Act, established the board on 5 December 1996.

[12] The conciliation board which consisted of representatives of both the
first respondent and the appellant, duly met on 15 January 1997 but was
unable to settle the dispute.
[13] On 17 March 1997 the first respondent and the employees instituted
proceedings against the appellant in the industrial court, pursuant to the
provisions of section 46(9) of the Act, for orders declaring the termination of
the services of the employees to be an unfair labour practice and ordering the
appellant to reinstate the employees.
[14] On 29 April 1997 the appellant filed its reply to the statement of case
which had been filed on behalf of the first respondent and the employees.
[15] In its reply the appellant raised a special plea to the jurisdiction of the
industrial court, in which it was alleged that the statement in the certificate
of compliance that in taking the steps which led to the dispute and in making
the application the first respondent and its office bearers and officials had
observed all relevant provisions of the first respondent’s constitution was
false, with the result, so it was alleged, that the application was a nullity and
the industrial court had no jurisdiction to make a determination in the matter.

[16] The matter was set down for trial in the industrial court in Durban for
a continuous period of two weeks commencing on 9 February 1998.  At the
pre-trial conference held between the parties on 5 February 1998 it was
agreed that the issues raised by the appellant’s special plea of jurisdiction
would be separated from the issues relating to the merits of the matter and
that the issues raised by the special plea would be determined prior to the
adduction of evidence in respect of the merits.
[17] Argument on the issues raised by the special plea commenced before
the  industrial court on 10 February 1998 and culminated in an order made
by consent of the parties in the following terms:
‘1.
Subject to what is set forth in paragraph 2
hereof, the proceedings at present pending
before this Honourable Court are stayed
until a ruling has been obtained from a Court
of competent jurisdiction on the question
whether
this
Honourable
Court
has
jurisdiction to make the determination
sought by the Applicants pursuant to section
46(9) of the Labour Relations Act of 1956.
2.
(a)
The proceedings for the ruling more
fully
referred to in paragraph 1 hereof, shall
be instituted by the Respondent within
21 Court days from the date of this
order.

(b)
In consenting to the terms hereof, the Applicants
shall not be deemed to have waived
their rights to oppose such relief as
the Respondent will seek under the
proceedings for the ruling referred to
in paragraph 1 hereof.
3.       The costs incurred to date shall be reserved.’
[18] The proceedings which have culminated in the present appeal were
instituted by the appellant pursuant to the provisions of the order which I
have just quoted.
4.
PROCEEDINGS IN COURT A QUO
[19] The appellant’s application was argued before Jappie J on 24
November 1998 and dismissed by him in a judgment delivered more than
eight months later on 4 August 1999.
[20] The appellant contended before Jappie J that the certificate of
compliance signed by Mhlongo was false because, so they said, the first
respondent’s office bearers and officials had, prior to 22 August 1996 (the
date on which the dismissals took place) acted in breach of its constitution in
two respects: (a) they had not acted in a conciliatory manner and (b) the
certificate was signed by one signatory only instead of two.
[21] Jappie J dismissed both the appellant’s contentions.

[22] In respect of the first contention he held that the steps which led to the
dispute were those which were taken between the date the dismissals
occurred, ie 22 August 1996, and the date when the first respondent first
raised the contention that the dismissals were unfair.  As the actions of the
first respondent’s office bearers and officials on which the appellant relied
for its contention that the first respondent’s constitution had been breached
all took place before 22 August 1996 they did not, so he held, constitute
steps that led to the dispute.  They could not therefore invalidate the
application for the establishment of the conciliation board.
[23] In respect of the second contention he held that the relevant
requirement in the first respondent’s constitution was directory and not
mandatory and as the application for the establishment of the conciliation
board had in fact been authorised by the first respondent the defect in the
application was one of form and not substance and there had been
substantial compliance with the first respondent’s constitution.
5.
DISCUSSION
[24] In view of the fact that I am satisfied that the appeal can be disposed
of on another ground I am prepared to assume, without deciding, that the
contentions raised by the appellant may well be correct.

[25] In my view it is clear, as counsel for the appellant conceded, that in
essence the appellant’s attack on the jurisdiction of the industrial court to
determine the dispute between the parties amounted to a review, even
though it had not been brought under rule 53 of the Uniform Rules of Court.
That being so, it follows that the rule that an applicant for review who fails
to bring the application within a reasonable time may (unless the delay can
be condoned) lose the right to complain of the irregularity in regard to which
the review is brought applies in this case; see, eg, Wolgroeiers Afslaers
(Edms) Bpk v Munisipaliteit van Kaapstad 1978(1) SA 13(A) and
Mamabolo v Rustenburg Regional Local Council 2001(1) SA 135(SCA).
[26] In the Mamabolo case, at 141 F-G, Mthiyane AJA referred to a review
application launched some three months and one week from the date on
which the termination of service (which was the subject of the attack in the
review application) was to have taken effect and said that that was not ‘a
delay of such magnitude that it called for an explanation from the appellant
in anticipation of delay being raised as a bar to his claim by either the
council [the respondent in the case] or the Court.’
[27] In my opinion the delay in the present case was a delay of such
magnitude.  I base this view not only on the actual period which elapsed,
which was at least five months, but also on the events that took place after

the application which is now attacked was brought and before its validity
was questioned, namely:
(1)
the fact that the appellant’s production
manager, Mr Kelly, after having been
contacted by an administration officer
employed by the Department of Manpower,
on 3 December 1996, prior to the
establishment of the conciliation board,
confirmed the terms of reference for the
board;
(2)
the fact that after the board was established,
on 5 December 1996, it met on 15 January
1997, a date suggested by Mr Kelly, and that
among its members were representatives of
the appellant who participated in the
discussions, described in the minutes as
‘lengthy discussions’, after which the
members of the board agreed that it had
failed to settle the dispute;
(3)
the fact that on 17 March 1997 the union
and the employees instituted proceedings
against the appellant in the industrial court
pursuant to the provisions of section 46(9)
of the Act, something which could only have
been done if the dispute which the industrial
court was asked to determine had previously
been the subject of proceedings before a
conciliation board.

[28] It is clear in my view that there was prejudice to the dismissed
employees because the appellant delayed for no apparent good reason in
taking the invalidity point.  In fact it did nothing and allowed the whole
conciliation board process to proceed and waited until the conciliation board
failed to produce a result before taking the point.  This with full knowledge
of those events which preceded the dismissals which are now claimed to
have amounted to breach of the first respondent’s constitution.
[29] On the face of it the delay in mounting the attack was not only
unreasonable but of such an extent as to call for an explanation in the
founding papers.
[30] No such explanation appears in the founding papers.  In his replying
affidavit Mr Kelly admitted that the appellant participated in the proceedings
before the conciliation board and did not challenge its establishment and
stated:
‘I point out that the [appellant] only received the
original of [the first respondent’s constitution]
subsequent to the institution of proceedings against
it in the Court [sc the industrial court].”  (The
italics are mine.)
The copy it annexed to its founding papers appears to have been
certified by the Industrial Registrar on 17 March 1997.

[31] It is not suggested that the appellant did not have a copy of the first
respondent’s constitution earlier.  Indeed it is noteworthy that the
Recognition and Procedural Agreement between the appellant and the first
respondent contains a number of references to the first respondent’s
constitution (see the definition of ‘official’ in clause 2.18, clause 5.7 dealing
with stop order facilities, clauses 6.1 and 6.8 dealing with the election of
shop stewards, and clause 6.10.5 dealing with the termination of the
appointment of a shop steward).  In the absence of any indication in its
founding or later affidavits to the contrary, the appellant must have known,
or must be taken to have known, from the time the application for the
establishment of a conciliation board was made that the first respondent had
not complied with its constitution in the respects alleged.
[32] Failing an explanation for the delay in mounting an attack on the
validity of the application I consider that the delay was unreasonable in the
circumstances and that no basis for  condoning it has been advanced.  It
follows that the appellant lost its right to complain of the alleged invalidity
of the application which was in a sense ‘validated’ thereby: cf Harnaker v
Minister of the Interior, 1965(1) SA 372(C) at 381 A-C.
[33] In the circumstances I am satisfied that the appeal must fail.

6. ORDER
[34] The following order is made:
The appeal is dismissed with costs.
.......................
IG FARLAM
JUDGE OF APPEAL
CONCURRING
SMALBERGER   ADCJ
OLIVIER   JA
STREICHER   JA
CHETTY   AJA