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[2015] ZASCA 66
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Workforce Group (Pty) Ltd v Motor Industry Bargaining Council and Others (20076/2014) [2015] ZASCA 66 (15 May 2015)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
CASE
NO: 20076/2014
Not
Reportable
In
the matter between:
THE
WORKFORCE GROUP (PTY)
LTD
.....................................................................
APPELLANT
and
MOTOR
INDUSTRY BARGAINING
COUNCIL
.........................................
FIRST
RESPONDENT
RETAIL
MOTOR INDUSTRY ORGANISATION
...................................
SECOND
RESPONDENT
FUEL
RETAILERS
ASSOCIATION
.............................................................
THIRD
RESPONDENT
NATIONAL
UNION OF METAL WORKERS
OF
SOUTH
AFRICA
....................................................................................
FOURTH
RESPONDENT
MINISTER
OF
LABOUR
................................................................................
FIFTH
RESPONDENT
Neutral
Citation:
Workforce Group (Pty) Ltd
v Motor Industry Bargaining Council
(20076/2014)
[2015] ZASCA 66
(15 May 2015).
Coram:
Navsa ADP, Ponnan, Shongwe, Wallis and
Zondi JJA
Delivered:
15 May 2015
Summary:
Costs – subsequent events and
statutory amendments rendering appeal academic – liability for
costs.
ORDER
On
appeal from
: The Gauteng Division,
Pretoria (Fourie J sitting as court of first instance).
The
following order is made:
The
appeal is struck from the roll with costs, including the costs of two
counsel.
JUDGMENT
Navsa
ADP and Ponnan JA (Shongwe, Wallis and Zondi JJA concurring):
[1]
This appeal was directed against a finding by the Gauteng Division of
the High Court, Pretoria that an amendment to an agreement,
concluded
on 17 September 2010 by parties to the Motor Industry Bargaining
Council (the Bargaining Council), which placed restrictions
on the
power of employers to utilise the services of ‘temporary
employment services’ formerly known as labour brokers,
was
valid and binding, even on non-parties to the agreement operating
within the Industry. Section 32 of the Labour Relations Act
66 of
1995 (the LRA) makes provision for the extension, by Ministerial
proclamation, of a collective agreement concluded in a Bargaining
Council to persons who fall within its registered scope, but are not
parties to the bargaining council. The Minister of Labour,
having
been requested by the Bargaining Council to extend the 17 September
agreement to non-parties, did so and published the requisite
notice
in the Government Gazette of 28 January 2011. During August 2011 the
appellant, The Workforce Group (Pty) Ltd, which conducts
business as
an employment agency, applied in the High Court,
[1]
for an order declaring certain sub-clauses of the agreement
regulating and restricting the use of temporary employment to be
unlawful
and invalid. The first respondent was the Bargaining Council
itself. The second, third and fourth respondents were employer and
employee parties to the Bargaining Council and by virtue of that fact
also parties to the collective agreement. The fifth respondent
was
the Minister of Labour.
[2]
The challenge to the material parts of the agreement was premised on
the following: Firstly, that the restriction was unlawful
at common
law because it constituted a trade boycott. Secondly, that the
impugned provisions were void for vagueness. Thirdly,
that the
agreement was ultra vires the Bargaining Council’s own
constitution. Lastly, that the provisions in question were
in breach
of a number of constitutional rights, namely, the right to freedom of
association, the right to freedom of trade, occupation
and
profession, the right to fair labour practices and the right to just
administrative action. After opposing affidavits were
delivered the
appellant amended its notice of motion to raise a challenge to the
constitutionality of s 32 of the LRA under which
the agreement had
been extended to non-parties.
[3]
The appellant was unsuccessful in the High Court. The application was
dismissed with costs, including the costs of two counsel.
Fourie J,
who heard the matter in the High Court, granted leave to appeal to
this court.
[4]
The amending agreement was to endure for three years, expiring on 31
August 2013. On 23 April 2015 the Registrar of this court
wrote to
the parties requiring them to address the following question:
‘
In
light of the provisions of the Bargaining Council agreement, in terms
of which the agreement is to endure for a period that has
already
passed, has the dispute not become academic?’
[5]
From the response of the parties to the Registrar’s query it
emerged that:
(a) On 24 January
2014, the operation of the amending agreement was extended until 31
August 2014 as per Government Notice R. 22,
Vol: 583, No. 37247 dated
24 January 2014.
(b) On 4 April 2014,
prior to expiry of the aforementioned extended period, the amending
agreement was again extended until 31 August
2016 to non-parties by
ministerial proclamation under s 32 of the LRA in Government Notice
Number R.250, Vol: 856, No. 37508.
(c) In terms of the
last extension of the amending agreement, a new clause was inserted
as clause 3.7(8) which provided as follows:
‘
The
current provisions shall prevail until new legislation is promulgated
to which all Parties shall comply.’
[6]
It was apparent from the terms of this clause that the parties
anticipated that legislation would be passed to deal with temporary
employment services and new legislation was indeed promulgated in the
form of the Labour Relations Amendment Act 6 of 2014, which
came into
effect on 1 January 2015. The aforesaid Act amended s 198 of the LRA
and also introduced ss 198A – 198D regulating
temporary
employment services. The effect is that the provisions of the
agreement, which the appellants had sought to have declared
unlawful
and invalid, no longer apply.
[7]
In these circumstances, the parties agreed that the appeal had been
rendered academic and that it should be struck from the
roll. But no
agreement could be reached about liability for costs. The parties
having agreed, the court directed that the issue
of costs would be
decided on the basis of their written representations without the
need for oral argument. We turn to deal with
the contending
submissions.
[8]
The respondents took the view that an important consideration in
determining liability for costs in relation to an appeal rendered
moot, is the fact that the appellant is
dominus
litis
. They point out that the
amendment referred to in paragraph 6 was assented to on 15 August
2014 and that that in itself was sufficient
to render the appeal moot
even before the amendment actually came into force. In this regard it
is necessary to note that the appellant’s
heads were filed on 9
September 2014, some three weeks after the amendment had been
assented to. The amendment took effect on 1
January 2015. From that
time until the response to the query from the Registrar there was no
indication from the appellant that
the appeal had been rendered moot,
when it ought to have been obvious to it that there was no longer any
live issue in the appeal.
For all these reasons, so the respondents
submit, the appellant was undoubtedly liable for costs.
[9]
The appellant on the other hand, in an affidavit filed in response to
the note from the Registrar, merely stated the following:
‘
At
the time the Labour Relations Amendment Act came into effect, the
appellant had already prosecuted its appeal and all the parties
had
already delivered their respective heads of argument.
It
is submitted that the appellant could not have anticipated the above
and had no alternative but to proceed with the appeal at
the time. In
the circumstances, it is submitted further that it would be
unreasonable to hold the appellant liable for costs and
each party
should pay their own costs.’
[10]
In
Deutsche Altersheim Zu Pretoria v
Roland Heinrich Dohmen
[2015] ZASCA 3
(5 March 2015) this court, in dealing with its inherent discretion to
make orders as to costs, took the view that a primary consideration
was that the appellant was
dominus
litis.
It had initiated and prosecuted
the appeal. Even after the amendment had come into operation, the
appellant continued as if nothing
had changed and took no steps to
limit the incurring of further costs. Plainly, the appellant was
obliged to have reconsidered
its position, which it failed to do. In
JT Publishing (Pty) Ltd v Minister of
Safety and Security
[1996] ZACC 23
;
1997 (3) SA 514
(CC), (CCT 49/95)
[1996] ZACC 23
;
1997 (3) SA 514
;
1996 (12) BCLR
1599
(CC) the Constitutional Court, having regard to the enactment of
a statute, which had not by then come into operation but which,
upon
its coming into operation (which it was anticipated would happen
shortly) would have the effect of rendering the statute there
under
consideration obsolete, came to the conclusion that there was no
point in dealing with the repealed statute and that there
was no
clearer instance of an issue becoming academic and having no other
interest but a historical one. The asserted justification
here by the
appellant for having proceeded with the appeal, is no justification
at all. We are in agreement with the submissions
on behalf of the
respondents.
[11]
The following order is made:
The
appeal is struck from the roll with costs, including the costs of two
counsel.
________________________
M
S NAVSA
ACTING
DEPUTY PRESIDENT
______________________
V
M PONNAN
JUDGE
OF APPEAL
REPRESENTATIONS:
FOR
APPELLANT: Adv. M S M Brassey SC (with him L M Malan)
Instructed
by:
Hunts
(Inc. Borkums) Attorneys, Johannesburg
Phatsoane
Henney Attorneys, Bloemfontein
FOR
FIRST RESPONDENT: Adv. G Marcus SC (with him S Budlender)
Instructed
by
DLA
Cliffe Dekker Hofmeyr Inc., Johannesburg
Matsepes
Inc. Bloemfontein
FOR
FOURTH RESPONDENT: Adv. P Kennedy SC (with him N Rajab-Budlender)
Instructed
by
Haffegee
Roskam Savage Jooste Attorneys, Pretoria
Webbers
Attorneys, Bloemfontein
FOR
FIFTH RESPONDENT: Adv. N H Maenetje SC (with him P G Seleka)
Instructed
by
State
Attorney, Pretoria
State
Attorney, Bloemfontein
[1]
Originally
there were other applicants but only The Workforce Group (Pty) Ltd
is a party to this appeal.