Chevron Engineering (Pty) Ltd v Nkambule, Joseph and 23 Others

The applicant (Chevron Engineering) dismissed the respondents (24 employees) on 23 March 1995 for participating in an illegal strike. The respondents challenged their dismissal before the Industrial Court under the Labour Relations Act 28 of 1956. On 15 October 1999, the Industrial Court ordered reinstatement of the respondents with effect from the date of dismissal. The applicant appealed to the Labour Appeal Court (LAC), which was established under the Labour Relations Act 66 of 1995. The dispute was pending when the 1956 Act was repealed by the 1995 Act, but continued as if the 1956 Act had not been repealed in terms of item 22(2) of Schedule 7. On 28 November 2000, the LAC dismissed the appeal (with Nicholson JA and Zondo JP forming the majority, and Nugent AJA dissenting). The applicant then sought leave to appeal to the Supreme Court of Appeal, which the LAC refused on the basis that item 22(6) of Schedule 7 prohibited appeals from LAC decisions made under item 22(5). The applicant then applied to the Supreme Court of Appeal for leave to appeal, or alternatively, for directions on prosecuting the appeal.

• Whether an appeal lies to the Supreme Court of Appeal from a decision of the Labour Appeal Court given in terms of item 22(5) and (6) of Schedule 7 of the Labour Relations Act 66 of 1995
• Whether item 22(6) of Schedule 7, which states 'no appeal will lie' from LAC decisions, should be read subject to section 168(3) of the Constitution
• Whether the phrase 'subject to the Constitution' in item 22(6) permits appeals to the Supreme Court of Appeal despite the express prohibition
• Whether leave to appeal is required for appeals from the LAC to the Supreme Court of Appeal
• Whether item 22(6) is unconstitutional if it prohibits appeals to the Supreme Court of Appeal

1. Directions given for prosecution of the appeal: The appellant must comply with Rule 10 of the Supreme Court of Appeal Rules on or before 30 June 2003, and the respondent on or before 30 July 2003. 2. The costs of the application are costs in the cause of the appeal. 3. The application for leave to appeal in the LAC was correctly dismissed as no leave was required. 4. The applicant is entitled to appeal to the Supreme Court of Appeal without leave.

An appeal lies, without leave, to the Supreme Court of Appeal from a decision of the Labour Appeal Court given in terms of item 22(5) and (6) of Schedule 7 of the Labour Relations Act 66 of 1995. The phrase 'subject to the Constitution' in item 22(6) must be interpreted to mean that where the Constitution provides for a right of appeal (as in section 168(3)), that constitutional provision prevails over the statutory prohibition on appeals contained in the remainder of item 22(6). The expression 'subject to' indicates that the Constitution is paramount and will override the statutory provision. Section 168(3) of the Constitution provides that the Supreme Court of Appeal may decide appeals 'in any matter' and is the highest court of appeal except in constitutional matters. No leave to appeal is required from the LAC to the Supreme Court of Appeal as neither the Constitution, the Labour Relations Act 66 of 1995, nor the Supreme Court Act 59 of 1959 requires such leave in these circumstances.

The Court noted that there was speculation as to why the words 'subject to the Constitution' were inserted in item 22(6), but held that in view of the clear meaning of the words and their effect, speculation on this point would be an essentially unprofitable exercise. The Court also commented that the decision in Khoza v Gypsum Industries Ltd (1998) 19 ILJ 53 (LAC) was clearly arrived at per incuriam, as no argument was presented on the proper interpretation of item 22(6) read in light of section 168(3) of the Constitution, and the point was not considered by the court. Similarly, Nugent AJA's comment in the LAC judgment refusing leave to appeal that item 22(6) provided in express terms that no appeal would lie was erroneous because it overlooked the inclusion of the all-important phrase 'subject to the Constitution'. The Court also noted that it would be different if the LAC were a division of the High Court, because sections 20 and 21 of the Supreme Court Act 59 of 1959 would then apply, but the LAC falls in the category of other courts established in terms of an Act of Parliament as referred to in section 166(e) of the Constitution.

This case is significant in South African jurisprudence because it establishes the constitutional supremacy of section 168(3) of the Constitution over statutory provisions that purport to exclude appeals to the Supreme Court of Appeal. It clarifies that the phrase 'subject to the Constitution' in legislation must be interpreted to give effect to constitutional rights and the constitutional court structure. The judgment affirms the Supreme Court of Appeal's jurisdiction as the highest court of appeal in non-constitutional matters and demonstrates how the Constitution overrides statutory provisions that might otherwise limit access to appellate courts. It also clarifies the procedural requirements for appeals from specialized courts like the Labour Appeal Court to the Supreme Court of Appeal, establishing that no leave is required where neither the Constitution nor relevant legislation imposes such a requirement. The case provides important guidance on constitutional interpretation and the interaction between statutory provisions and constitutional guarantees of access to justice and appellate review.