National Employers' Association of South Africa ('NEASA') v J & L Lining (Pty) Ltd

NEASA sought leave to intervene in proceedings between J & L Lining (Pty) Ltd (the applicant) and NUMSA and employees (the respondents). The Labour Court dismissed NEASA's application to intervene in the applicant's application for leave to appeal against the original judgment handed down on 10 December 2018. NEASA's intervention application was dismissed on 26 February 2019. NEASA then filed an application for leave to appeal on 12 March 2019, seeking to appeal the dismissal of its intervention application. NEASA claimed entitlement to intervene based on section 200 of the Labour Relations Act, arguing that as the applicant was its member, it had an automatic right to participate in proceedings involving its member.

• Whether NEASA had reasonable prospects of success on appeal against the dismissal of its application to intervene
• Whether the Labour Court applied the correct test when deciding whether to grant leave to intervene
• Whether section 200(2) of the LRA entitles NEASA as of right to intervene in proceedings involving its members without the Court exercising discretion
• Whether NEASA's application to intervene was brought too late in the proceedings
• Whether there is a distinction between the test for intervention in the Constitutional Court and the Labour Court

The application for leave to appeal by NEASA was dismissed. No order as to costs was made.

The binding legal principles established are: (1) Leave to appeal will only be granted where there is a reasonable prospect that another court would come to a different conclusion - a mere possibility of success or arguable case is insufficient; (2) The test for intervention in the Labour Court under Rule 22 is the same as the test under Rule 8(1) of the Constitutional Court Rules as set out in Gory v Kolver NO; (3) Section 200(2) of the LRA does not confer an automatic right to intervene in proceedings - the Court retains discretion under Rule 22 which involves consideration of all relevant factors including the interests of justice; (4) An application to intervene brought after the merits have been decided and only at the leave to appeal stage is too late; (5) The substantial interest component required for intervention may be established in different ways depending on the court and issues at stake, but this does not exclude consideration of other discretionary factors.

The Court observed that NEASA could apply to the Labour Appeal Court to intervene in the petition for leave to appeal proceedings under the Court's inherent powers preserved by section 173 of the Constitution, notwithstanding the absence of specific provision in the Labour Appeal Court Rules for joinder on appeal. The Court noted that Rule 12(2) of the Labour Appeal Court Rules (similar to Rule 11(1)(b) of the Supreme Court Rules) enables the Judge President to give directions considered just and expedient in matters of practice and procedure, which could serve as a basis for NEASA to apply to join the appeal proceedings. The Court cited City of Johannesburg Metropolitan Municipality v IMATU as precedent for parties intervening in Labour Appeal Court proceedings despite not being parties in the court a quo.

This case clarifies the procedural requirements and discretionary nature of applications to intervene in Labour Court proceedings, particularly in the context of section 200 of the LRA. It confirms that employer associations do not have an automatic right to intervene merely because a party is their member, and that courts retain discretion to refuse intervention where applications are brought too late or where the interests of justice do not warrant intervention. The judgment also provides guidance on the ability of parties to seek intervention in appeal proceedings before the Labour Appeal Court under the court's inherent powers, even where specific rules do not provide for such intervention.