IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA
CASE NO. CCT2/2000 In the matter between:
SOUTH AFRICAN COMMERCIAL CATERING AND
ALLIED WORKERS’ UNION & OTHERS Applicants
and
IRVIN & JOHNSON LIMITED SEAFOODS
DIVISION FISH PROCESSING Respondent
THE RESPONDENT’S ARGUMENT IN RESPONSE TO THE DIRECTIONS OF THE PRESIDENT OF THE COURT
Introduction
1. To place the respondent’s submissions in their proper context, it is necessary to record the following:
1.1_ The President of the Court issued the first directions, dated 16 February 2000, and later the second directions, dated 31 March 2000.
1.2_ The latter directions called for submissions from the applicants, and proposed that a meeting between the applicants’ attorneys and the respondent’s
attorneys be convened for this purpose.
1.3_ Upon receipt of the second directions, the respondent’s attorneys of record sent to the applicants’ attorneys the letter dated 5 April 2000 by e-mail, a copy of which is annexed as “A1". That letter stated succinctly the respondent’s concerns, and proposed a meeting with the applicants’ attorneys for the purpose contemplated by the second directions. The applicants’ attorneys acknowledged receipt of annexure “A1" in their letter of 6 April 2000, which is annexed as “A2".
1.4_ Without reverting to the respondent’s attorneys, the applicants’ attorneys sent the letter dated 7 April 2000 to the Court.
2. In the light of the content of the letter of 7 April 2000, the logical order for the respondent’s submissions appears to be the following:
2.1 Dealing with the content of the applicants’ letter of 7 April 2000;
2.2 Dealing with the first directions of 16 February 2000;
2.3 Dealing with the second directions of 31 March 2000.
Ad the applicants’ letter of 7 April 2000
3. In their letter of 7 April 2000 the applicants state that the record would not be necessary if two requirements are met, namely if the Court were to deal with the matter as an issue of law, and if the respondent conceded that “collective guilt” is a real issue in the Nkatu proceedings.
4. With respect to the concession requested from the respondent, the respondent:
4.1 concedes that “collective guilt” might be an issue in the Nkatu proceedings in relation to the second to forty-seventh applicants.
4.2 points out that none of these applicants were applicants in the Nomoyi matter, and the first applicant is only a party in a representative capacity, and acting on behalf of the other applicants.
The issues in the Nkatu proceedings are dealt with more fully in paragraph 11 hereunder.
5. However, the qualification imposed by the applicants concerning the manner in which this Court may decide to deal with the application ignores, with respect, the role of the applicants in failing to define the ambit of their application for leave to appeal.
This aspect is dealt with hereunder.
Ad sub-paragraph 2.1 of the President’s directions dated 16 February 2000:
6. It is not possible for the respondent to identify, by reference to the documents filed by the applicants, what the applicants intend to advance as grounds for their appeal, and what they intend to rely upon to support their grounds. The reasons for this
submission are the following:
6.1_ the notice of application for leave to appeal to this Court states, at paragraph 9, the following:
“The principal ground of appeal on which the applicants rely is based on the fact that the learned Judges, with respect, erred in fact and in law in not consenting to the recusal of Conradie and Nicholson JJA from the appeal hearing”.
This paragraph embraces both factual and legal grounds of appeal, although such grounds are not specified.
6.2 The respondent presumes that it was with regard to the extraordinarily vague nature of the aforegoing paragraph that the applicants saw fit to record, on the fourth page of their notice, that their counsel had not considered the judgment against which leave to appeal is sought, and that they noted their intention to amend and/or supplement their application for leave to appeal. The applicants subsequently recorded that they do not intend to amend their notice.
6.3 The respondent is thus obliged to assume that the applicants will rely upon any proposition which they may competently advance in the light of the
content of the papers filed before the Labour Appeal Court (“LAC”).
6.4 In the applicants’ application for a positive certificate, they traversed (apart from propositions of law) as grounds the following:
6.4.1 The content of the application for recusal itself (paragraphs 4 and 5);
6.4.2 The content of the evidence in the Nomoyi matter (paragraphs 6 and 7);
6.4.3 The content of the judgment in the Nomoyi matter (paragraphs 15, 18, 19, 23 and 26);
6.4.4 The incorrectness of that judgment (paragraph 14);
6.4.5 The roles played by Holland and the first applicant in the events in June (paragraph 17).
6.5 Given the content of the application for a certificate, and particularly the passages identified in sub-paragraphs 1.4.2, 1.4.4, and 1.4.5 above, the applicants apparently intend to rely not only on the evidence led in the Nkatu matter, but also that led in the Nomoyi matter.
6.6 The content of the application for recusal itself does not assist the respondent in identifying the grounds relied on by the applicants:
6.6.1 The applicants attempted to define the issues relevant to the merits of
this matter (paragraph 3 of the affidavit of Holland). (The respondent disputes that that definition of the issues is correct);
6.6.2 The applicants asserted that the issues in the Nkatu and the Nomoyi matters are identical (paragraphs 4, 17, and 31 of the affidavit of Holland). (This too is disputed by the respondent); and
6.6.3 The applicants suggested that the judgment in the Nomoyi matter was in certain respects subject to criticism, in the light of the evidence in that matter (paragraph 8 of the replying affidavit of Holland).
7. In summary, therefore, the respondent would have wished for the applicants to amend their application for leave to appeal to this Court, at least for the purpose of properly defining the ambit of the proposed appeal. Such a clearer definition was, it is submitted, necessary and desirable.
8. Since the respondent is by the nature of this appeal obliged to react to the case presented by the applicants, and since the applicants have not seen fit to define the ambit of their proposed appeal, the full record may potentially be required and the respondent cannot responsibly indicate what portions of the record would be irrelevant.
9. Finally, in their argument in response to the directions of this Court the applicants do not take the issue any further, save to indicate that the applicants favour “the broader approach” which they apparently accept will require some consideration of the facts
in the appeal on the merits and might require “excepts from the record”.
Ad sub-paragraph 2.2 thereof:
10. No.
Ad sub-paragraph 2.3 thereof:
11. The respondent submits that the issues relevant to the merits in the appeal are, in summary, the following:
11.1 A copy of the applicants’ notice of appeal against the Nkatu judgment is annexed, marked “A3”. It sets out the grounds of appeal, which include an attack on certain factual findings and contentions based on collective guilt in paragraph 12 thereof.
11.2 It appears from the applicants’ heads of argument in the Nkatu appeal the argument which is to be advanced is more confined. The following principal submissions are made (the heads are not annexed in order not to burden this reply unduly):
11.2.1 There was no evidence of misconduct regarding the individual appellants during the protest of 21 June;
11.2.2 There was no evidence of any unlawful common purpose to which the
individual appellants were party;
11.2.3 While it is accepted that certain employees who participated in the march threatened and intimidated other employees in order to stop production, it is argued that there is no evidence that the appellants associated themselves with this conduct;
11.2.4 Three of the appellants, it is said, did not participate in the march;
11.2.5 The procedure contemplated by clause 3.11 of the mediation
agreement concluded by the parties was in fact not a fair procedure.
11.3 The respondent disputes each of these contentions. It is to be noted that neither in the notice of appeal, nor in the applicants’ heads of argument, is the contention relating to the “malign influence”, which is referred to in paragraph 8 of the applicants’ argument, advanced.
12. Accordingly, with regard to the applicants’ summary (paragraphs 7 and 8 of their argument):
12.1 this does not accord with what the heads of argument for the applicants before the LAC suggested were the issues;
12.2 for the reasons described above, the applicants dispute that this is an accurate summary of the issues in the appeal.
Ad sub-paragraph 2.4 thereof:
13. Three facts bear emphasis:
13.1 The applicants had received notice of the set down of the appeal before the LAC some months before the hearing. They elected to present their application for recusal on the day of the hearing itself, and not earlier.
13.2 By the date of the hearing both parties had filed heads of argument dealing with the merits. Both parties were apparently ready to proceed with the hearing on the merits. The Judges had read the record (comprising 54 volumes and 4723 pages).
13.3 After hearing the application for recusal, the LAC invited submissions as to whether the argument on the merits of the appeal should be heard and
disposed of on that day. It was clear that the matter could be disposed of then.
In response, the applicants requested that the matter concerning their merits not proceed, and that judgment on the recusal application be handed down first.
14. In the light of the aforegoing, the submission by the applicants in paragraph 9 of their argument, to the effect that much effort would be uselessly expended if the merits were to be disposed of first, rings hollow, and is moreover undermined by the following:
14.1 Had argument on the merits proceeded on the day on which the application for recusal was presented, this may have avoided the need for this application altogether (in that the applicants may have succeeded in the appeal), and would at the very least have assisted in defining the issues in the appeal.
14.2 The applicants have elected to follow the route of applying for leave to this Court. This avenue is much more costly. It involves the filing of heads of argument relating to recusal, the possible preparation of a record for the hearing before this Court, and further days of argument.
15. It is submitted that a useful purpose could indeed be served by the merits being disposed of first. The useful purpose would include the considerations referred to in paragraph 14.1 above.
16. The suggestion that the applicants will find it hard to disabuse themselves of the thought that a fresh bench would be unable to ignore the decisions of the previous bench is not supportable. It is an integral part of the administration of justice for one Court to reconsider rulings and judgments by another Court on the same facts. If the applicants were to form the view suggested, it would not be a reasonable view.
Ad the directions of the President of the Court, dated 31 March 2000
17. In the light of:
17.1 what is stated in paragraphs 3, 4, and 5 above;
17.2 what is stated in response in paragraphs 6 to 9 above; and
17.3 the applicants failure to respond constructively to the respondent’s letter (annexure “A1" hereto);
it is not possible for the respondent to indicate what portions of the record in the Nkatu matter are relevant, and what are irrelevant.
___________________________
___
L A ROSE-INNES SC
___________________________
___
J C BUTLER Chambers CAPE TOWN 07 April 2000
