The applicants (235 employees) and the respondent employer were engaged in discussions regarding conditions of service, particularly a cost of living adjustment. On 24 September 2004, the applicants withdrew their labour for two hours (from 8:00 to 10:00 hours) in a countrywide action that disrupted the respondent's operations. The Labour Court found that this constituted an unlawful collective job action and dismissed the applicants' appeal with costs. The applicants then sought leave to appeal to the Supreme Court, which was refused by the President of the Labour Court on 18 September 2007. The applicants filed the present application on 7 November 2007 seeking leave to appeal from a Supreme Court Judge in terms of s 92(F)(3) of the Labour Act.
The application for leave to appeal was dismissed with costs.
The binding legal principles established are: (1) Where neither the Labour Court Rules nor Supreme Court Rules prescribe time limits for applications for leave to appeal to a Supreme Court Judge under s 92(F)(3) of the Labour Act, there is a gap in the law and such applications cannot be dismissed as out of time on this basis alone. (2) Whether agreed facts constitute a collective job action as defined in the Labour Act is a question of law, not fact. (3) Leave to appeal under s 92(F)(3) is not granted routinely merely because a constitutional right to appeal exists; the applicant must demonstrate prospects of success on appeal. (4) A concerted withdrawal of labour in the context of ongoing negotiations regarding conditions of service and cost of living adjustments constitutes a collective job action under the Labour Act.
The court observed that High Court Rules 262 and 263, which relate specifically to criminal proceedings and applications for leave to appeal by an accused person after sentence, do not apply to civil labour matters even though Supreme Court Rule 58 provides that the Supreme Court should follow High Court practice and procedure in matters not otherwise provided for. These criminal rules relate to a different situation altogether. The court also noted that while the respondent initially raised an objection regarding the deponent's authority to represent the other applicants, this submission was not persisted with at the hearing and the court assumed it had been abandoned.
This case clarifies the procedure for seeking leave to appeal to the Supreme Court after refusal by the President of the Labour Court under s 92(F)(3) of the Labour Act. It highlights a gap in the law regarding time limits for such applications. The case also establishes that leave to appeal is not granted as a mere formality or routine matter based on constitutional rights to appeal, but requires demonstration of prospects of success. It provides guidance on distinguishing questions of law from questions of fact in the labour law context, particularly regarding what constitutes a collective job action.