The Lion Match Company Limited v Paper Printing Wood & Allied Workers Union and 217 Others

The appellant, Lion Match Company Limited, was a manufacturer and distributor of safety matches operating a factory in Durban. The first respondent was a registered trade union representing employees at the factory. On 22 August 1996, the appellant dismissed 217 employees (second to 218th respondents) after a work stoppage/strike. On 28 October 1996, the first respondent applied to the Regional Director of Manpower for establishment of a conciliation board to address the alleged unfair dismissals, accompanied by a certificate of compliance signed by Lucky Mhlongo (Acting Branch Secretary) stating the union had observed all constitutional provisions. The conciliation board was established on 5 December 1996 and met on 15 January 1997 but failed to settle the dispute. On 17 March 1997, the respondents instituted proceedings in the Industrial Court under section 46(9) of the Labour Relations Act 28 of 1956. On 29 April 1997, the appellant filed a special plea challenging the Industrial Court's jurisdiction, alleging the certificate of compliance was false because: (a) union officials had not acted in a conciliatory manner before dismissals, and (b) only one signatory signed instead of two as required by the union's constitution. The matter proceeded to the Durban and Coast Local Division where Jappie J dismissed the application on 4 August 1999.

• Whether the application to establish a conciliation board was invalid for non-compliance with section 35(2)(b) of the Labour Relations Act 28 of 1956
• Whether the Industrial Court had jurisdiction to determine the dispute under section 46(9) of the Act given the alleged invalidity of the conciliation board application
• Whether the certificate of compliance was false due to alleged breaches of the union's constitution
• Whether the appellant's challenge to the conciliation board application was brought within a reasonable time
• Whether delay in bringing review proceedings could bar the relief sought

The appeal was dismissed with costs.

A party seeking to review an administrative decision (including an application to establish a conciliation board) must bring the review application within a reasonable time from when they knew or ought to have known of the grounds for review. Failure to do so without adequate explanation, particularly where the party participated in subsequent proceedings flowing from the challenged decision, results in loss of the right to complain of the alleged irregularity. The reasonableness of delay must be assessed not only by reference to the period elapsed but also the events that transpired during that period, including the prejudice to other parties. Where a party has knowledge of facts constituting an alleged irregularity but participates in proceedings established pursuant to the allegedly irregular decision, and only raises the irregularity after those proceedings fail to produce a favorable result, the delay is unreasonable and the right to review is lost unless the delay can be condoned.

The court noted that it was prepared to assume, without deciding, that the appellant's contentions regarding the falsity of the certificate of compliance might be correct. Specifically, the court did not definitively rule on: (1) whether steps taken before the dismissals (22 August 1996) constituted 'steps which led to the dispute' within the meaning of section 35(2)(b) of the Labour Relations Act 28 of 1956; (2) whether the requirement for two signatories on the certificate was mandatory or directory; or (3) whether there had been substantial compliance with the union's constitution notwithstanding any formal defects. The court also observed that the alleged invalidity was in a sense 'validated' by the unreasonable delay in challenging it, citing Harnaker v Minister of the Interior 1965(1) SA 372(C) at 381 A-C.

This case establishes important principles regarding the timing of review applications in South African labour law. It confirms that challenges to administrative decisions (such as establishment of conciliation boards) must be brought within a reasonable time, and that participation in proceedings while knowing of potential irregularities can constitute acquiescence that bars later challenges. The case demonstrates the courts' approach to balancing procedural irregularities against the principle that parties should not be permitted to adopt tactical delays in raising jurisdictional challenges. It emphasizes that knowledge of facts giving rise to a review, combined with active participation in subsequent proceedings, creates a duty to raise objections timeously or risk losing the right to do so. The judgment is particularly relevant in the context of labour disputes where dismissed employees face significant prejudice from delays in resolving their claims.