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[2015] ZASCA 190
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Motor Industry Staff Association v Macun NO & Others (20819/2014) [2015] ZASCA 190; (2016) 37 ILJ 625 (SCA); [2016] 3 BLLR 284 (SCA); 2016 (5) SA 76 (SCA) (30 November 2015)
Links to summary
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case
No: 20819/2014
Reportable
In
the matter between:
MOTOR INDUSTRY STAFF
ASSOCIATION
APPELLANT
and
IAN ANTHONY MACUN NO
FIRST
RESPONDENT
MINISTER OF LABOUR NO
SECOND RESPONDENT
MOTOR INDUSTRY BARGAINING
COUNCIL
THIRD RESPONDENT
NATIONAL UNION OF METALWORKERS
OF SOUTH
AFRICA
FOURTH RESPONDENT
RETAIL MOTOR INDUSTRY
ORGANISATION
FIFTH
RESPONDENT
FUEL RETAILERS’ ASSOCIATION
OF
SOUTHERN
AFRICA
SIXTH RESPONDENT
Neutral
Citation:
Motor
Industry Staff Association v Macun NO & others
(20819/2014)
[2015] ZASCA 190
(30 November 2015).
Coram:
Navsa,
Lewis, Pillay, Petse & Dambuza JJA
Heard:
12
November 2015
Delivered:
30
November 2015
Summary:
High
Court and Labour Court – concurrent and exclusive jurisdiction
– validity of extension of collective agreement
to non-parties
– arising out of the
Labour Relations Act 66 of 1995
–
matter within exclusive jurisdiction of Labour Court.
ORDER
On
appeal from
:
The Gauteng Division of the High Court, Pretoria (Phatudi J sitting
as court of first instance).
The
appeal is dismissed with costs.
JUDGMENT
Navsa
JA (Lewis, Pillay, Petse & Dambuza JJA
concurring):
[1]
This case raises, for the umpteenth time before a court, the now more
than vexed question about the crossroads or divergences
between the
jurisdiction of the High Court and that of the Labour Court. There is
apparently no end to legal representatives contriving
to fashion a
case to suit a client’s choice of forum.
[2]
In the court below, the appellant, the Motor Industry Staff
Association (MISA), a trade union registered in terms of
s 96(7)(
a
)
of the Labour Relations Act 66 of 1995 (the LRA), applied for an
order in the Gauteng Division of the High Court, Pretoria, declaring
that a decision of the first respondent, the Director: Collective
Bargaining, Department of Labour, to extend the period of operation
of the Motor Industry Bargaining Council’s Main Collective
Agreement (the Main Agreement) to 31 August 2014 and further to
31
January 2015, was unlawful and invalid. The further orders sought
were, inter alia, as follows:
‘
2.
The aforesaid decision of the First Respondent is reviewed and set
aside.
3.
It is declared that the First Respondent’s notice as published
in Government Gazette 37247, No 22 of 24 January 2014, to
declare
that the provisions of Government Notice No R687 of 26 August 2011 be
effective from the date of publication of the said
notice until the
period ending 31 August 2014, is unlawful and invalid.
4.
The aforesaid notice is reviewed and set aside.
5.
It is declared that the decision of the First Respondent to extend
the period of operation on the [Motor Industry Bargaining
Council]
Administrative Collective Agreement to 31 January 2015 is unlawful
and invalid.
6.
The First Respondent’s decision, as per 5 above, is reviewed
and set aside.
7.
It is declared that the First Respondent’s notice as published
in Government Gazette 37247, No 23 of 24 January 2014, namely
to
declare the provisions of Government Notices No R 1034 of 20
October 2006, R 487 of 8 June 2007, R 1029 of 2 November 2007,
R 1035
of 3 October 2008, R 881 of 4 September 2009 and R 56 of 4
February 2011 be effective from the date of publication
of the said
notice until the period ending 31 January 2015, is unlawful and
invalid.
8.
The notice referred to in 7 above is reviewed and set aside.’
[3]
The Motor Industry Bargaining Council (MIBCO) is the bargaining
council established
for the motor industry.
[1]
The basis for MISA’s application was as follows: the parties to
the Main Agreement, which include MISA, the fourth respondent,
the
National Union of Metalworkers of South Africa (NUMSA), the fifth
respondent, the Retail Motor Industry Organisation (RMI),
a
registered employers’ organisation, and the sixth respondent,
the Fuel Retailers’ Association of South Africa (FRA),
did not
conclude a new Main Agreement after the prior Main Agreement
(previously extended) had lapsed on 31 August 2013. It was
submitted
on behalf of MISA that there was no agreement to ‘revive’
and ‘resurrect’ the lapsed agreement.
Thus, MISA argued,
there could be no extension of the collective agreement in terms of s
32(6) of the LRA. Section 32 provides
for the extension of collective
agreements concluded in bargaining councils. Section 32(1) states
that a bargaining council may
request the Minister in writing to
extend the collective agreement to non-parties that are within its
registered scope. Section
32(2) stipulates that the Minister is
obliged to extend a collective agreement within 60 days of receipt of
a request from a bargaining
council by notice in the Government
Gazette. Section 32(3) obliges the Minister to satisfy him or herself
that a number of requirements
are met before a collective agreement
may be extended, including that the request falls properly within the
prescripts of s 32(1).
For present purposes it is not necessary
to consider the other requirements in any greater detail. Section
32(6)
(a)
provides as follows:
‘
(6)(
a
)
After a notice has been published in terms of subsection (2), the
Minister
,
at the request of the
bargaining
council
,
may publish a further notice in the
Government
Gazette
–
(i)
extending
the period specified in the earlier notice by a further period
determined by the
Minister
;
or
(ii)
if
the period specified in the earlier notice has expired, declaring a
new date from which, and a further period during which, the
provisions of the earlier notice will be effective.’
[2]
The
principal submission on behalf of MISA appeared to be that since the
prior Main Agreement had lapsed, the decision to extend
it was
ultra
vires
.
The same argument was the underpinning for the relief sought with
regard to a second collective agreement, the MIBCO Administrative
Collective Agreement.
[4]
At the commencement of proceedings in the court below, the third
respondent, MIBCO, raised a point
in
limine
,
namely, lack of jurisdiction, contending that the propriety of
decisions taken by the first and/or second respondent pursuant
to the
provisions of the LRA fell within the exclusive jurisdiction of the
Labour Court.
[5]
The court below (Phathudi J) had regard to the provisions of 157(1)
and (2) of the LRA, which provide:
‘
(1)
Subject to the Constitution and section 173, and except where
this
Act
provides
otherwise, the Labour Court has exclusive jurisdiction in respect of
all matters that elsewhere in terms of
this
Act
or
in terms of any other law are to be determined by the Labour Court.
(2)
The Labour Court has concurrent jurisdiction with the High Court in
respect of any
alleged or threatened violation of any fundamental
right entrenched in Chapter 2 of the Constitution of the Republic of
South Africa,
1996, arising from –
(
a
)
employment and from labour relations;
(b)
any
dispute
over the constitutionality of any executive or administrative act or
conduct, or any threatened executive or administrative act
or
conduct, by the State in its capacity as an employer; and
(c)
the application of
any law for the administration of which the
Minister
is responsible.’
The
learned judge also considered conflicting decisions of two different
divisions of the High Court, namely,
Valuline
CC & others v Minister of Labour & others
2013 (4) SA 326
(KZP) and
O
Thorpe Construction & others v Minister of Labour & others
[2014] ZAWCHC 140.
[6]
Phatudi J concluded, in line with the latter decision that the matter
sought to be adjudicated, namely, the validity of the
extension of a
collective agreement to non-parties, fell within the exclusive
province of the Labour Court. He took the view that
the decisions of
the Constitutional Court in
Gcaba
v Minister for Safety and Security & others
[2009]
ZACC 26
;
2010 (1) SA 238
(CC) and
Chirwa
v Transnet Ltd & others
[2007] ZACC 23
;
2008 (4) SA 367
(CC) were instructive and that the
objection to the jurisdiction of the High Court was well founded.
Consequently, he dismissed
the application by MISA with costs,
including the costs attendant upon the employment of two counsel. The
learned judge granted
leave to this court. Before us, the primary
question for determination was whether his conclusion that the issues
sought to be
adjudicated by MISA fell within the exclusive
jurisdiction of the Labour Court, is correct. I proceed to deal first
with the reasoning
and conclusions of the divergent high court
decisions.
[7]
In
Valuline
, Koen J dealt with an application, in terms of
which a decision of the Minister of Labour to extend a collective
agreement, purportedly
under the provisions of s 32 of the LRA, to
non-parties was sought to be set aside. In para 12 of
Valuline
the following appears:
’
12.
The crucial issues arising for consideration on the merits of this
application are:
(a)
Whether the
requirements of s 32(3) [of the LRA] were satisfied.
(b)
If not, whether the
decision is reviewable on the principle of legality.
(c)
Whether the court
has the jurisdiction to entertain such review.’ (footnotes
omitted.)
[8]
In adjudicating the challenge to the High Court’s jurisdiction
on the basis that the matter was one that fell within the
exclusive
jurisdiction of the Labour Court in terms of s 157(1) of the
LRA, Koen J concluded that the High Court did have
jurisdiction to
review and set aside a decision of the Minister to extend a
collective bargaining agreement to non-parties. The
learned judge
appeared to place emphasis on the fact that the basis for the
application was the principle of legality.
[3]
He had regard to s 1
(c)
of the Constitution which provides that the Republic of South Africa
was founded, inter alia, on the supremacy of the Constitution
and the
rule of law. That, he reasoned, is ‘the foundation for the
legality principle’ (para 15). Thus, he concluded,
any review
of a power performed by the Minister of Labour ‘in accordance
with the principle of legality would constitute
a “constitutional
matter”’ (para 16). Koen J turned to examine s 169 of the
Constitution which then provided:
[4]
‘
A
High Court may decide –
(
a
)
any constitutional matter except a matter that –
(i)
only
the Constitutional Court may decide; or
(ii)
is assigned by an Act of Parliament to another court of a similar
status to a High
Court; and
(
b
)
any other matter not assigned to another court by an Act of
Parliament.’
[9]
The court in
Valuline
considered the provisions of s 169
alongside para 35 of the decision of the Constitutional Court in
Fredericks & others v MEC for Education and Training, Eastern
Cape & others
[2001] ZACC 6
;
2002 (2) SA 693
(CC), which
reads as follows:
‘
Having
concluded that s 24 of the Act does not oust the jurisdiction of the
High Court in constitutional matters and that the applicants
in this
case raise a constitutional matter, it follows that the High Court
was not correct when it concluded that
s 24
of the
Labour Relations
Act deprived
it of jurisdiction to determine the dispute. It is now
necessary to consider whether the High Court has jurisdiction to
determine
the dispute. In particular, we must determine whether
Parliament has conferred the jurisdiction to determine this dispute
upon
the Labour Court in such a manner that it either expressly or by
necessary implication has excluded the jurisdiction of the High
Court.’
I
pause to record that the challenge in
Fredericks
by teachers whose application to be retrenched voluntarily had been
refused by the Department of Education in the Eastern Cape,
was based
on an alleged infringement of their right to equality, in terms of s
9 of the Constitution and their right to just administrative
justice
in terms of s 33.
[10]
Koen J, with reference to the decision of this court in
City
of Tshwane Metropolitan Municipality v Engineering Council of South
Africa & another
[2009] ZASCA 151
;
2010 (2) SA 333
(SCA), rightly noted that there is
a long line of authority that the High Court would be slow to incline
towards holding that its
jurisdiction was ousted (para 19). The
learned judge went on to consider the provisions of s 157 of the LRA
set out above and then
proceeded to examine s 158(1) of the LRA,
which then provided:
[5]
‘
158
Powers of Labour Court
(1)
The Labour Court may –
(
a
)
make any appropriate order, including –
(i)
the grant of urgent interim relief;
(ii)
an interdict;
(iii)
an order directing the performance of any particular act which order,
when implemented,
will remedy a wrong and give effect to the primary
object of
this Act
;
(iv)
a declaratory order;
(v)
an award of compensation in any circumstances contemplated in
this
Act
;
(vi)
an award of damages in any circumstances contemplated in
this Act
;
and
(vii)
an order for costs;
(
b
)
order compliance with any provision of
this Act
;
(
c
)
make any arbitration award or any settlement agreement an order of
the Court;
(
d
)
request the Commission to conduct an investigation to assist the
Court and to submit
a report to the Court;
(
e
)
determine a
dispute
between a registered
trade union
or
registered
employers’ organisation
and any one of the
members or applicants for membership thereof, about any alleged
non-compliance with –
(i)
the constitution of that
trade union
or
employers’
organisation
(as the case may be); or
(ii)
section 26(5)
(b)
;
(
f
)
subject to the provisions of
this Act
, condone the late filing
of any document with, or the later referral of any
dispute
to,
the Court;
(
g
)
subject to section 145, review the performance or purported
performance of any function
provided for in
this Act
on any
grounds that are permissible in law;
(
h
)
review any decision taken or any act performed by the State in its
capacity as employer,
on such grounds as are permissible in law;
(
i
)
hear and determine any appeal in terms of section 35 of the
Occupational Health
and Safety Act, 1993 (Act 85 of 1993); and
(
j
)
deal with all matters necessary or incidental to performing its
functions in terms
of
this
Act
or any other law.’
[11]
Koen J considered the contention by the respondents in
Valuline
that the provisions of s 158(1)(
g
) indicated that the
Labour Court had exclusive jurisdiction to determine the propriety of
the Minister’s decision to extend
the collective agreement to
non-parties. He contrasted the wording of matters that ‘are’
to be determined exclusively
in terms of s 157(1) of the LRA, with
the wording, at the commencement of s 158(1), that the Labour Court
‘may’ make
orders in respect of the matters listed
thereunder (para 26). Paras 27–29 of
Valuline
bear
repeating:
‘
As
the provisions of the LRA do not expressly, or by necessary
implication, provide that such a review is to be determined by the
labour court, the jurisdiction of the high court to determine such
reviews is not ousted and jurisdiction of the labour court therefore
not exclusive.
The
interpretation of the provisions of s 158(1)
(e)
do not arise
in this application, except to the limited extent that it might
affect the proper interpretation to be given to s
158(2)
(g)
.
Section 158(1)
(e)
, in referring to “determine a
dispute”, might be closer to complying with the requirement of
s 157(1) conferring exclusive
jurisdiction on the labour court in
respect of matter that “are” to be determined by the
Labour Court, as contended
for by the respondents. Nevertheless, I am
not persuaded that it does. The correct interpretation of s 158(1) is
simply that it
confers enabling powers on the labour court. Section
158 does not provide for matters of substantive jurisdiction.
What
s 158(1)
(g)
does is to provide and place it beyond any doubt that, where the
labour court has jurisdiction in a particular matter, whether
exclusive or in a situation of concurrent jurisdiction with the high
court, and the subject-matter of such dispute entails a review
and
relief consequent upon a review, the labour court will have the power
to review the performance or purported performance of
any such
function.’ (footnotes omitted.)
[12]
Paragraph 31 of
Valuline
also bears repeating, as it appears
to have been strong motivation for the court concluding as it did, as
set out in para 7 above:
‘
If
the respondents’ interpretation of s 158(1)
(g)
,
that the granting of the permissive power to review contained in s
158(1)
(g)
constitutes a direction that any matter involving a review “is
to be determined” by the labour court, whether express
or by
necessary implication, as contemplated in s 157(1), thus conferring
exclusive jurisdiction on the labour court, then by parity
of
reasoning, any dispute in respect of which “any appropriate
order” may be granted would also confer exclusive jurisdiction
on the labour court. That would entail exclusive jurisdiction being
conferred on the labour court in probably almost all matters
that
could conceivably come before it with reference to the kind of relief
that may be granted, rather than with reference to the
cause of
action relied upon. An exception to the express provisions of s 169
of the Constitution should not be inferred that
readily and can
certainly not be implied by any considerations of necessity.’
[13]
It is necessary to record the following brief reference in a footnote
in
Valuline
to the judgments by the Constitutional Court in
Gcaba
and
Chirwa
(fn 24 para 29):
‘
As
contemplated in s 157(2) relating to the violation of a fundamental
right entrenched in ch 2 of the Constitution. In [
Gcaba
]
the Constitutional Court held that s 157(2) should not be understood
to extend the jurisdiction of the high court to determine
issues
which (as contemplated by s 157(1)) have been expressly conferred
upon the labour court by the LRA. Rather, it should be
interpreted to
mean that the labour court will be able to determine constitutional
issues which arise before it in the specific
jurisdictional area
which have been created for it by the LRA and which are covered by s
157(2)
(a)
,
(b)
and
(c)
.
Any reliance on the decision in
Gcaba
supra or [
Chirwa
]
as decisive of the issue of jurisdiction, seems in my view misplaced
in the context of the present matter. Both involved conduct
held not
to constitute administrative action but dealt with entirely different
matters, namely non-promotion and dismissal in an
employee
relationship, and were in respect of different labour issues than the
issue of legality before this court.’
[14]
In
O Thorpe Construction
Davis J disagreed with the reasoning
and conclusions of Koen J in
Valuline
. He commenced by stating
that, as reflected in the preamble to the LRA, the legislature
clearly envisaged a category of cases in
respect of which the
exclusive power of adjudication was bestowed on the Labour Court. The
learned judge considered the following
passage of the concurring
majority judgment of Ngcobo J in
Chirwa
to be instructive
(para 123):
‘
While
s 157(2) remains on the statute book it must be construed in the
light of the primary objectives of the LRA. The first is
to establish
a comprehensive framework of law governing the labour and employment
relations between employers and employees in
all sectors. The other
is the objective to establish the Labour Court and Labour Appeal
Court as superior courts, with exclusive
jurisdiction to decide
matters arising from the LRA. In my view the only way to reconcile
the provisions of s 157(2) and harmonise
them with those of s 157(1)
and the primary objects of the LRA is to give s 157(2) a narrow
meaning. The application of s 157(2)
must be confined to those
instances, if any, where a party relies directly on the provisions of
the Bill of Rights. This, of course,
is subject to the constitutional
principle that we have recently reinstated, namely, that “where
legislation is enacted to
give effect to a constitutional right, a
litigant may not bypass that legislation and rely directly on the
Constitution without
challenging that legislation as falling short of
the constitutional standard.’ (footnote omitted.)
[15]
The issue before Davis J in
O
Thorpe Construction
,
as in
Valuline
and the present matter, concerned a decision to extend a collective
agreement to non-parties within its registered scope. That
decision
was challenged on the basis that there had been non-compliance with
the prescripts of s 32 of the LRA. At para 24 of
O
Thorpe Construction,
the following appears:
‘
The
very act of extension of a collective agreement to non-parties in the
building industry constitutes the performance of functions
provided
for expressly in the LRA.’ In this regard Davis J quoted paras
70 – 72 of
Gcaba
,
which read as follows:
‘
Section
157(1) confirms that the Labour Court has exclusive jurisdiction over
any matter that the LRA prescribes should be determined
by it. That
includes, amongst other things, reviews of the decisions of the CCMA
under s 145. Section 157(1) should, therefore,
be given expansive
content to protect the special status of the Labour Court, and s
157(2) should not be read to permit the High
Court to have
jurisdiction over these matters as well.
Section
157(2) confirms that the Labour Court has concurrent jurisdiction
with the High Court in relation to alleged or threatened
violations
of fundamental rights entrenched in Ch 2 of the Constitution and
arising from employment and labour relations, any dispute
over the
constitutionality of any executive or administrative act or conduct
by the State in its capacity as employer and the application
of any
law for the administration of which the minister is responsible. The
purpose of this provision is to extend the jurisdiction
of the Labour
Court to disputes concerning the alleged violation of any right
entrenched in the Bill of Rights which arise from
employment and
labour relations, rather than to restrict or extend the jurisdiction
of the High Court. In doing so, s 157(2) has
brought employment and
labour-relations disputes that arise from the violation of any right
in the Bill of Rights within the reach
of the Labour Court. This
power of the Labour Court is essential to its role as a specialist
court that is charged with the responsibility
to develop a coherent
and evolving employment and labour relations jurisprudence. Section
157(2) enhances the ability of the Labour
Court to perform such a
role.
Therefore,
s 157(2) should not be understood to extend the jurisdiction of the
High Court to determine issues which (as contemplated
by s 157(1))
have been expressly conferred upon the Labour Court by the LRA.
Rather, it should be interpreted to mean that the
Labour Court will
be able to determine constitutional issues which arise before it, in
the specific jurisdictional areas which
have been created for it by
the LRA, and which are covered by s 157(2)
(a)
,
(b)
and
(c)
.’ (footnotes omitted.)
After
considering these passages, the
court in
O Thorpe
Construction
said the following (para 25):
‘
It
follows from this holding that, if as in this case, the cause of
action concerns an alleged breach of a provision of the LRA,
it is a
matter which falls within the exclusive jurisdiction of the Labour
Court.’
[16]
According to Davis J (para 31), ‘the implication of the
judgment in [
Valuline
],
is that s 157(1) of the LRA has a very narrow scope and that almost
all matters of a labour nature are potentially, at least,
subject to
the concurrent jurisdiction of the High Court and the Labour Court.’
The court in
O
Thorpe Construction
considered that the conclusion reached in
Valuline
‘compromise[d] the very purpose of s 157(1) of the LRA’
and stood ‘in stark contrast to two critical judgments
which
Koen J did not canvass in the [
Valuline
]
case, namely the Constitutional court judgments in
Chirwa
and
Gcaba
.
. . .’
[17]
I now turn to consider which of the approaches in the High Court
judgments referred to above is correct. The starting point
is to
consider what the Constitution envisaged in respect of a regulatory
regime to ensure protection of the rights to fair labour
practices
and collective bargaining. Section 23(1) of the Constitution
entrenches the right to fair labour practices. Section 23(4)
gives
every trade union and every employers’ organisation the right
to determine its own administration, programmes and activities,
and
to organise and to form and join a federation. Section 23(5) and (6)
of the Constitution provide:
‘
(5)
Every trade union, employers’ organisation and employer has the
right to engage in
the collective bargaining. National legislation
may be enacted to regulate collective bargaining. To the extent that
the legislation
may limit a right in this Chapter the limitation must
comply with section 36(1).
(6)
National legislation may recognise union security arrangements
contained in collective
agreements. To the extent that the
legislation may limit a right in this Chapter the limitation must
comply with section 36(1).’
[18]
The LRA was enacted, inter alia, to ‘change the law governing
labour relations’, to ‘give effect to s 23
of the
Constitution’, and to ‘promote and facilitate collective
bargaining at the work place and sectorial level’.
[6]
As noted by Ngcobo J at para 123 of
Chirwa
(quoted in para 13 above), section 157(2) of the LRA, which deals
with where the Labour Court and the High Court have concurrent
jurisdiction, has to be construed in the light of the primary
objectives of the LRA. The Constitutional Court has put it beyond
doubt that the primary objective of that Act was to establish a
comprehensive legislative framework regulating labour relations.
An
allied objective expressly stated in the preamble to the LRA was to
‘establish the Labour Court and Labour Appeal Court
as superior
courts, with exclusive jurisdiction to
decide
matters arising from the [LRA]
’.
(My emphasis.)
In
Chirwa
,
Ngcobo J indicated that in the light of what is set out above, s
157(2) has to be narrowly construed and that it should be confined
to
issues where a party relies directly on the provisions of the Bill of
Rights.
[19]
The Constitutional Court, in
Gcaba
, considered the tensions
that might arise in relation to the interpretation of s 157 of the
LRA and related provisions. Van der
Westhuizen J noted the principle
that ‘legislation must not be interpreted to exclude or unduly
limit remedies for the enforcement
of Constitutional rights’
(para 55). Alongside that, however, is the consideration that ‘the
Constitution recognises
the need for specificity and specialisation
in a modern and complex society under the rule of law’ (para
56). The following
paragraph in
Gcaba
is significant:
‘
.
. . Therefore, a wide range of rights and the respective areas of law
in which they apply are explicitly recognised in the Constitution.
Different kinds of relationships between citizens and the State and
citizens amongst each other are dealt with in different provisions.
The legislature is sometimes specifically mandated to create detailed
legislation for a particular area, like equality, just administrative
action (PAJA) and labour relations (LRA). Once a set of carefully
crafted rules and structures has been created for the effective
and
speedy resolution of disputes and protection of rights in a
particular area of law, it is preferable to use that particular
system. This was emphasised in
Chirwa
by both Skweyiya J and Ngcobo J. If litigants are at liberty to
relegate the finely tuned dispute-resolution structures created
by
the LRA, a dual system of law could fester in cases of dismissal of
employees.’ (footnotes omitted.)
[20]
The approach to be followed, in summary, is as follows: The LRA is
legislation envisaged by the Constitution. In construing
the
provisions of the LRA the two objectives referred to above must be
kept in mind. Section 157(2) of the LRA was enacted to extend
the
jurisdiction of the Labour Court to disputes concerning the alleged
violation of any right entrenched in the Bill of Rights
which arise
from employment and labour relations, rather than to restrict or
extend the jurisdiction of the high court. The Labour
Court and
Labour Appeal Court were designed as specialist courts that would be
steeped in workplace issues and be best able to
deal with complaints
relating to labour practices and collective bargaining. Put
differently, the Labour and Labour Appeal Courts
are best placed to
deal with matters arising out of the LRA. Forum shopping is to be
discouraged. When the Constitution prescribes
legislation in
promotion of specific constitutional values and objectives then, in
general terms, that legislation is the point
of entry rather than the
Constitutional provision itself.
[21]
I agree that
Valuline
did not pay sufficient attention to what
is set out in the preceding paragraph. It will be recalled that s
157(2) provides for
concurrent jurisdiction in the face of an
allegation of a violation or threatened violation of a fundamental
right. In the present
case, unlike
Fredericks
, there was no
allegation of a violation or threatened violation of any fundamental
right entrenched in Chapter 2 of the Constitution.
The court in
Valuline
allowed itself to be distracted by the submission
that the challenge to jurisdiction was based on ‘the principle
of legality’.
In adjudicating any matter properly within its
province the Labour Court would, in any event, be astute to ensure
that its decision
was one that complied with the principle of
legality, which is all-embracing and which permeates our entire
constitutional scheme.
One cannot assert the ‘right’ to
the principle of legality in vacuum. In essence, the complaint by the
appellant is
that the Minister, in purporting to extend the
collective agreement to non-parties, acted beyond the powers
conferred upon him
in terms of s 32 of the LRA. The protections, both
procedural and substantive, that exist in relation to collective
bargaining
are to be sourced in the LRA and not in the ‘principle
of legality’. In
Minister of Home Affairs v National
Institute for Crime Prevention and the Reintegration of Offenders and
others
[2004] ZACC 10
;
2005 (3) SA 280
(CC), the Constitutional Court said the
following (para 21):
‘
The
values enunciated in s 1 of the Constitution are of fundamental
importance. They inform and give substance to all the provisions
of
the Constitution. They do not, however, give rise to discrete and
enforceable rights in themselves This is clear from the language
of s
1 itself, but also from the way the Constitution is structured and in
particular the provisions of ch 2 which contains the
Bill of Rights.’
As
set out in para 7 above, Koen J had regard to s 1(
c
)
of the Constitution which provides that South Africa is a sovereign
democratic State founded on the Constitution and the rule
of law. The
‘principle of legality’ is an incident of the rule of
law. As set out in the Constitutional Court dictum
referred to
earlier in this paragraph, a founding value in itself does not give
rise to a discreet and enforceable right. A founding
value gives
substance to all the provisions of the Constitution. The court in
Valuline
did not take this into account.
[22]
Section 32 of the LRA is located in Part C of Chapter 3, which deals
with collective bargaining. It sets certain preconditions
for the
extension of a collective agreement concluded in a bargaining
council. The question whether there has been compliance with
the
provisions of s 32 of the LRA is one that pre-eminently arises out of
the LRA
[23]
It is unhelpful to contrast, as was done by Koen J, the word ‘may’
in the introductory part of s 158 with the word
‘are’ in
the latter part of s 157 of the LRA in order to determine the
question of jurisdiction. The powers and functions
of the Labour
Court set out in s 158 of the LRA may, depending on the power, be
exercised both in respect of its exclusive jurisdiction,
as provided
for in s 157(1), or in respect of its concurrent jurisdiction with
the high court, as provided for in s 157(2). So,
for example, an
interdict as provided for in s 158(1) or a declaratory order, may
issue in respect of a purely labour related matter
or in respect of a
case brought before the labour court premised on the alleged or
threatened violation of a right entrenched in
Chapter 2 of the
Constitution. The provisions of s 158(1)(
g
)
on their own are not decisive. In the present case the question that
should rightly be asked is whether the basis of the challenge
to the
decision to extend the collective agreement is one that arises out of
the LRA. The obvious answer is that it does.
[24]
Koen J, in expressing his concern in para 31 of his judgment, quoted
in para 11 above, that the necessary implication of a
conclusion
contrary to that reached by him, would be to confer exclusive
jurisdiction on the Labour Court in all matters that came
before it,
overlooked the dicta in
Gcaba
and
Chirwa
,
that the purpose of s 157(2) was to extend the jurisdiction of the
Labour Court to disputes concerning the alleged violation of
any
right entrenched in the Bill of Rights which arise from employment
and labour-relations, rather than to restrict or extend
the
jurisdiction of the High Court. I agree with Davis J that the
implication of the judgment in
Valuline
is
that s 157(1) of the LRA has a very narrow scope and that almost all
matters of a labour nature are potentially, at least, subject
to the
concurrent jurisdiction of the high court and the Labour Court. I
also agree that the conclusion reached in
Valuline
compromised the objectives of the LRA and stand in stark contrast to
the judgments of the Constitutional Court in
Chirwa
and
Gcaba
.
[25]
Had it not been for the precedential potential of the present case,
it might well have been liable to be dismissed in terms
of s
16(2)(
a
)(i)
of the
Superior Courts Act 10 of 2013
on the basis that it would, in
the circumstances of the present case, have no practical effect. The
extensions of the agreements
in question have run their course. The
relief sought by the appellant would ordinarily serve no purpose.
MISA sought to overcome
this hurdle by submitting that although the
extended agreements had lapsed, the notices published in relation
thereto remain extant
until set aside and that it was entitled to
seek the relief referred to above. We were not told whose rights in
respect of the
expired agreements might have been violated or what
litigation might emanate from the alleged unlawful agreements.
However, because
the decision in the appeal is one which extends
beyond the facts of the present case the route of dismissing it on
the basis of
s 16(2)(
a
)(i)
of the
Superior Courts Act was
not followed.
[7]
[26]
The appeal is dismissed with costs.
________________________
M
S Navsa
Judge
of Appeal
APPEARANCES:
For
Appellants
:
G Ebersöhn
Instructed
by:
Gerrie
Ebersöhn Attorneys, Johannesburg
Phatshoane
Henney Attorneys, Bloemfontein
For
First and Second Respondents: P G
Seleka
Instructed
by:
The
State Attorney, Pretoria
The
State Attorney, Bloemfontein
For Third
Respondents:
G C Pretorius SC
Instructed
by:
Cliffe
Dekker Hofmeyr Inc. c/o Gildenhuys Malatji Inc., Pretoria
Matsepes,
Bloemfontein
For
Fourth Respondents:
P Kennedy SC
Instructed
by:
Haffegee
Roskam Savage Attorneys c/o Macrobert Inc., Pretoria
Webbers,
Bloemfontein
[1]
Section 27
of the
LRA provides for one or more registered trade unions and one or more
employers’ organisations to establish a bargaining
council for
a sector and area.
Section
28
of the LRA, which deals with the powers and functions of a
bargaining council include, among others, the ability to conclude
and enforce collective agreements, to prevent and resolve labour
disputes, and to establish and administer schemes or funds for
the
benefit of the parties to the bargaining councils or their members.
Section
31
provides that a collective agreement concluded in a bargaining
council binds parties to the bargaining council who are parties
to
the collective agreement.
[2]
Note that the LRA
makes use of italics for defined terms, and this formatting has been
retained in quotations from this Act.
[3]
See para 13 of
Valuline
.
[4]
The amendments are
not material to this dispute.
[5]
The amendments are
not material to this dispute.
[6]
See the long title
of the LRA. See also Chapter 2 of the LRA, dealing with the freedom
of association and general protections
and Chapter 3, which, inter
alia, regulates collective agreements and bargaining councils.
[7]
See
Radio
Pretoria v Chairperson, Independent Communications Authority of
South Africa, and another
[2004] ZACC 24
;
2005 (4) SA 319
(CC), para 22.