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Cases On Human Rights

Chaskalson CJ
Langa DCJ
Ackermann J
Goldstone J
Madala J
Mokgoro J
Moseneke J
Ngcobo J
O'Regan J
Yacoob J
Friday, 4 April 2003

ACCESS TO JUSTICE – Indigent litigants - Whether and when court may abridge proceedings in order to attenuate indigent litigant's costs

FUNDAMENTAL RIGHTS – Right to fair hearing – Pleadings prepared by laypersons – Duty of court to consider – How such pleadings are to be construed

Issue for Determination:
Whether the dismissal of striking employees for ignoring several entreaties and ultimatum to resume work, without prior disciplinary hearings was procedurally fair.

Facts:
The applicants were employees of the respondent and members of the National Union of Mineworkers of South Africa (NUMSA). NUMSA is the sole bargaining agent for hourly paid workers. Following an internal NUMSA dispute concerning shop stewards at the workplace of the respondent, NUMSA suspended thirteen shop stewards. Aggrieved co-workers in sympathy with their suspended colleagues, went on strike. Attempts to resolve the dispute between the union and representatives of the applicants proved fruitless. The striking workers resisted several entreaties to return to work, insisting that they would not resume until the suspension was lifted.

The respondent and NUMSA held meetings with the striking workers to persuade them to return to work, or face disciplinary action, which included dismissal. Notices warning of the illegality of the strike, and disciplinary action were also issued to the workers. Subsequently, the respondent and NUMSA concluded a widely publicized agreement to end the strike on 31st January 2000 and that workers who continued in the strike would face disciplinary action. The respondent also warned that workers who did not comply would be issued an ultimatum.

A substantial number of workers failed to resume on 31st January 2000, prompting the respondent to publish and distribute fresh notices calling on workers to resume on 3rd February 2000 or face dismissal. On the given date, the applicants still did not resume work. They were accordingly dismissed. The applicants protested that the dismissal was unfair, and the matter was taken to arbitration. The arbitrator found that the dismissal was substantially fair but procedurally unfair and ordered reinstatement. The respondent challenged the award before the labour court, which upheld the finding of the arbitrator that the dismissal was substantially fair but procedurally unfair. It however held that the arbitrator misdirected himself on the reinstatement of the striking workers as the relevant provision of the relevant law does not permit reinstatement where dismissal is procedurally, and not substantively unfair. On appeal to the LAC, it held that the dismissal was substantively and procedurally fair, as the applicants had been given ample opportunity to make representations before the decision to dismiss them was taken. The applicants applied to the constitutional court for leave to appeal the decision.

Held (Unanimously dismissing the application for leave to appeal):
The respondents gave the applicants several opportunities to return to work or face possible dismissal but the applicants failed to avail themselves of the opportunities. The applicants therefore cannot rightly claim that their dismissal was not procedurally fair.

Details of Principles in Judgment:

  1. Whether court may abridge proceedings where litigant cannot sustain the costs of a drawn-out action
    The Court may summarily and without waiting for the respondent to make representations, decide an indigent litigants' application for leave to appeal where the facts are not in dispute, and the court is satisfied that the action is bound to fail and it is clear that the applicant is not in position to pay the respondent's costs. It would be undesirable under such circumstances to require the respondent to incur further costs in the action.[page 482 paras A-C]
  2. How the court must construe pleadings prepared by lay persons
    Pleadings that are prepared by lay litigants must be interpreted munificently and in a manner that is most favourable to the litigant's cause. Lay litigants ought not be held to the same standards as lawyers in the presentation of their case. Regards must be had to the purpose of the pleadings, and its form must give way to the substance.[page 482 paras E-F]

  1. On the Record:
    Pleadings prepared by laypersons must be construed generously and in the light most favourable to the litigant. Lay litigants should not be held to the same standard of accuracy, skill and precision in the presentation of their case required of lawyers. In construing such pleadings, regard must be had to the purpose of the pleading as gathered not only from the content of the pleadings but also from the context in which the pleading is prepared. Form must give way to substance. While the applicants' notice of motion does not seek leave to appeal, what the applicants are seeking is quite clear. They are seeking to appeal against the finding by the LAC that their dismissal was procedurally fair and the consequential refusal to reinstate them and to award them compensation. Their application must therefore be construed as an application for leave to appeal directly to this Court from the decision of the LAC. In addition, the applicants are seeking condonation for the late filing of their application for leave to appeal.

  2. Whether Striking Workers who Fail to Heed Warnings and Ultimatum to Discontinue an Unlawful Strike Can Claim that their Summary Dismissal is Procedurally Unfair
    The facts of the present case show that the management made several efforts to get the striking workers return to work. Several meetings were held with the workers' union and the representatives of the striking workers to warn them of the illegality of their actions and that they faced possible dismissal. The applicants were afforded all opportunity to return to work, but they would not, even after ultimatums were issued for their return to work. In the circumstances, the applicants cannot rightly say that their dismissal was procedurally wrong.[page 485 paras B-E]

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