Labour Court judge Andre van Niekerk on March 3 dismissed the South African Airways Pilot’s Association’s (SAAPA’s) application for leave to appeal the Labour Court’s December 2020 judgment, with a costs order in favour of South African Airways (SAA) and the business rescue practitioners (BRPs).

This was the SAAPA’s attempt to challenge the Labour Court’s judgment which held that the lockout of the pilots was lawful and protected in terms of the Labour Relations Act 66 of 1995 (LRA).

In the leave to appeal judgment, the Labour Court held that SAAPA had not presented a convincing argument that the Labour Appeal Court would come to a conclusion different to that reached by the Labour Court, and merely repeated the submissions made during the initial hearing of the matter.

The application for leave to appeal was dismissed on this basis, with Van Niekerk saying the application “adds nothing to the debate”.

Although Section 162 of the LRA permits the Labour Court to make an order for costs, it is highly unusual for the Labour Court to do so. The Labour Court’s general approach is that where an ongoing relationship exists between a trade union and employer, a costs order may not be appropriate, in circumstances where the relationship must be preserved.

However, the fact that the Labour Court decided to issue costs against SAAPA indicates the singular lack of any legal merit associated with SAAPA’s original application to declare the lockout by SAA unlawful and again in respect of the application for leave to appeal.

BRPs Les Matuson and Siviwe Dongwana say this sends a strong message to litigants, particularly trade unions, that litigating without merit will not be tolerated. “Merely because employees and trade unions have the right of access to the courts, this right cannot be allowed to be abused.”

Dongwana notes that both Matuson and he are hopeful that a settlement can be reached between SAA and SAAPA and bring to an end the lawful lockout of SAAPA members. “We remain committed to find each other with SAAPA as we did with other affected parties in arriving at a compromise of amounts owing to them.”

He adds that the BRPs believe a speedy settlement is in the best interests of the majority of SAAPA’s members. “It is common cause that the termination of the pilots’ regulating agreement is necessary for the long-term sustainability of a restructured airline.”