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[2007] ZALAC 28
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Minister of Public Service and Administration and Others v Solidarity and Others (JA 18/2004) [2007] ZALAC 28; (2007) 28 ILJ 1747 (LAC) (29 March 2007)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA
HELD
AT JOHANNESBURG
CASE No: JA 18/2004
In
the matter between
THE
MINISTER FOR PUBLIC SERVICE & FIRST APPELLANT
ADMINISTRATION
PUBLIC
SERVICE CO-ORDINATING SECOND APPELLANT
BARGAINING
COUNCIL
AND
SOLIDARITY
FIRST RESPONDENT
W
J VENTER SECOND RESPONDENT
R
S STEARN THIRD RESPONDENT
JUDGMENT
JAPPIE
AJA
Introduction
[1] The appellants, The Minister for
Public Service and Administration and the Public Service
Co-ordinating Bargaining Council (the
PSCBC) appeal against a
judgment of Ngcamu AJ sitting in the Labour Court. The judgment stems
from an application, brought by the
first respondent, Solidarity, a
trade union on behalf of two of its members, the second and third
respondents. In the application
the respondents sought an order
declaring an agency shop agreement (hereinafter referred to as “the
agreement”), concluded
on the 26th of May 1988 between the
State, as employer, and the union parties to the PSCBC to be invalid
and unenforceable. The
basis of the respondents contention is that
the agreement was void for want of compliance with the provisions of
section 25 (3)
(a) of the Labour Relations Act 66 of 1995 (“the
Act”)
[2] The Labour Court upheld the
contention and held that the agreement was void. The Labour Court
issued a declarator to that
effect and awarded costs against the
second appellant, the only party that had actively opposed the
application.
[3] A prayer for an order declaring
the deductions of dues pursuant to the agreement to be illegal,
unjustified and unlawful was
abandoned by the respondents in the
course of the proceedings before the Labour Court
Background
[4] During 1998 the second appellant
accepted and adopted an agency shop agreement concluded between the
State, as the employer
party to the PSCBC and eleven trade unions
representing the majority of those in the employ of the State that
were then the employee
parties to the PSCBC. Although the first
respondent was not a party to the agreement at the time when the
agreement was concluded,
it subsequently acquired some five thousand
members who are employees of the State.
[5] The agreement took effect on the
1
st
July 1998. Approximately one million and sixty five
thousand employees of the State fell within the registered scope of
the PSCBC.
Of these, approximately nine hundred and seventy five
thousand were represented by the trade unions that were parties to
the PSCBC.
Those employees who were members of the trade unions
paid subscriptions to the PSCBC who in turn paid it over to the trade
unions
to fund the work of such unions. The agreement further
required non-union members to pay subscriptions in a like manner to
the
PSCBC. This was achieved by including in the agreement a
provision which allowed the State;
to deduct an agency fee equal to 1%
(up o a maximum of R 60.00) from the salary of those of its
employees who did not belong to
one or other of the trade unions
that were a party to the agreement ;
to pay the amount so deducted to the
PSCBC for distribution in turn amongst the parties to the agreement
for use by them in accordance
with the dictates of the agreement.
On the 1
st
of July 1998 the
agreement was brought into operation by Resolution 1 of 1998.
[6] Section 25(3) of the Act governs
the requirements for a binding agency shop agreement. Subsection (3)
(a) of section 25 reads
as follows:
“
An
agency shop agreement is binding only if it provides that -
employees who are not
members of the representative trade union are not compelled to become
members of that trade union
;”
It will be seen from the above that
sub-section requires that an agreement should provide that employees
who are not members of
the representative trade union are not
compelled to become members of that trade union. In the present case
the agreement in question
did not have a provision to that effect.
The respondents contended that as the agreement did not contain a
clause that set out
the requirements of the relevant sub-section, the
agreement was not binding and was, therefore, void
ab initio
.
[7] It is common cause that the
agreement as originally adopted by Resolution 1 of 1998 did not
expressly meet the requirements
of section 25(3) (a) of the Act. In
the Labour Court, the appellants had initially denied that the
agreement lacked the requisite
provision, but it was conceded before
this court that the agreement as originally adopted did not contain
the provisions required
by the sub-section (3) (a) of section 25 of
the Act.
[8] It is further common cause that
on the19th June 2003, after the present proceedings had been
instituted, the PSCBC, by way
of Resolution 4 of 2003, inserted a
clause in the agreement which clause reads as follows:-
“no
employee is or can become obliged to join a trade union that is or
becomes a party to this agreement. Employees who are
not members of
a trade union party to this agreement are not compelled to become
members of any trade union party to this agreement”.
The decision of the
court a quo
[9] It is clear from reading of the
judgment of the Labour Court that
in granting the declaratory
order sought by the respondents that court based its decision on the
ratio
in
Greathead v SA Commercial Catering and Allied
Workers Union (2001) 22 ILJ 595 (SCA).
In that case, Greathead,
a retail advisor objected to the imposition of an agency shop
agreement on him and he launched an application
in the High Court for
a declarator that the agreement infringed his right to freedom of
association, freedom to make political
choices, and his right to
freedom from servitude or forced labour. He also wanted the agency
shop agreement to be declared unenforceable,
alternatively of no
application to him.
[10] The High Court dismissed the
application with costs. The High Court nonetheless granted Greathead
leave to appeal to the Supreme
Court of Appeal (SCA). That Court
dealt with the matter on the basis of whether the agency shop
agreement complied with section
25(3) of the Act.
[11] The SCA noted that in terms of
section 25(3) of the Act an agency shop agreement was binding only if
it complied with all the
requirements of the section.
At 598
paragraph [8] of the judgment
the following appears;-
“
It is common cause
that the agreement does not expressly provide for the matters
referred to in section 25(3)(a) and (c). In my
view, the agreement
is also silent about the requirements stated in section 25(3)(d)(i)
and (ii). It is evident from the wording
of section 25(3) that the
agreement is binding (only if) it complies with all the requirements
of this section, and that if it
does not so comply it is invalid
.”
At paragraph [12] the Court further
stated
“
The Act requires
the agreement to be in writing and to ‘provide’
specifically for the matters prescribed by section
25(3). In my
judgment the agreement in the respects referred to failed to comply
with the requirements of section 25(3). In the
result it never
became a binding agreement
.”
The Appeal
[12] If the
ratio
in
Greathead
was to be applied to the agreement in this case prior to the
adoption of Resolution 4 of 2003, the conclusion would be
inescapable,
that the agreement would not be a binding agency shop
agreement as it would not comply with the provision of sub-section
(3)(a)
of section 25 of the Act.
[13] As the respondents had abandoned
all consequential relief, it was argued that the granting of the
declaratory order as sought
by the respondents would serve no useful
purpose. While counsel for the appellants conceded that it was not
incompetent for a
court to grant declaratory relief where no
consequential relief is sought, he argued that a court should, in the
proper exercise
of its discretion, decline to do so when the relief
sought is purely abstract in its effect. He further submitted that
since the
amendment of the agreement by Resolution 4 of 2003 the
validity of the agreement in its present form is now beyond question.
[14] Counsel for the appellant
further emphasized that since May 1998 when the agreement was
concluded:-
(a) the individual members of the
first respondent had known of the existence of the agreement since
then;
(b) these proceedings were instituted
almost five years after the conclusion of the agreement;
(c) throughout that period agency
fees were paid over in compliance with the agreement and the monies
were disbursed;
(d) the individual members (of the
first respondent) regulated their conduct as employees of the State
as if the agreement was in
fact valid.
[15] In reply the respondents’
counsel contended that although the declaratory relief may be “purely
abstract in effect”
this is no reason to set aside the order of
the
court a quo
. He argued that even if Resolution 4 of 2003
had “cured” the invalidity of the agreement as originally
adopted, the
respondents were still entitled to an order declaring
the agreement invalid. It was argued that even if the first
respondent and
its members had abandoned the claim for consequential
relief, this did not alter the correctness of the decision of the
Labour
Court to have granted declaratory relief.
Discussion
[16] Section 158 (a) (iv) of the Act
grants the Labour Court the power to issue a declaratory order. The
principles which are applicable
to the granting of declaratory orders
were dealt with in
Mohamed v. Mohamed and Others 1976(3) SA 151
(T). At 154 F Marais J stated the position as follows
:-
“
The position now
is that the Courts would entertain (not necessarily grant) an
application for a declaratory order if neither an
infringement nor a
concrete dispute exists, the only condition precedent being that the
declaratory order, if granted, would bind
one or more interested
parties as well as the applicant, who must be a party “interested”
in a decision on a contingent
right or obligation.”
At
156 A,
He made the point
that:
“
T
he matter before
us is clearly of academic interest only and therefore not capable of
a proper declaratory order in terms of the
section
.”
In
Rutherford v Furguson and Others
[2000] 1 All SA113 (O) at 119 F
the following was said:-
“
. Prior to 1963
an existing and concrete dispute between persons was required but
this requirement was modified in
Ex Parte Nell
(supra
). This modification has not eroded
the rule that a party is not entitled to approach the court for what
amounts to a legal opinion
upon an abstract or academic matter. The
court will not make a declaration of rights unless there are
interested parties upon
whom the declaration would be binding.”
[17] Although it was argued before the
court a quo
that the abandoning by the respondents of any
consequential relief rendered the order for a declarator purely
academic, it is apparent
from the judgment of the
court a quo
that this issue was not considered at all. In my view this issue
ought to have been considered in the light of the abandonment
by the
respondents of all consequential relief. The failure of the
court
a quo
to give consideration to this aspect of the appellant’s
case was a misdirection which calls for interference in the relief
granted.
[18] The arguments advanced by the
respondents do not touch upon the principles which govern the
discretion of a court in these
circumstances to grant declaratory
relief. In
JT Publishing (Pty) Ltd v Minister of Safety and
Security
[1996] ZACC 23
;
1997 (3) SA 514
(CC) Didcott
J made reference to these
principles at page 525 A of the judgment and stated the position as
follows
“
I interpose that
enquiry because a declaratory order is a discretionary remedy, in the
sense that the claim lodged by an interested
party for such an order
does not in itself oblige the Court handling the matter to respond to
the question which it poses, even
when that looks like being capable
of a ready answer. A corollary is the judicial policy governing the
discretion thus vested
in the Courts, a well-established and
uniformly observed policy which directs them not to exercise it in
favour of deciding points
that are merely abstract, academic or
hypothetical ones. I see no reason why this new Court of ours should
not adhere in turn
to a rule that sounds so sensible.”
[19] A further factor which the
court
a quo
ought to have considered was the time lapse between the
adoption of Resolution 1 of 1998 and the launch of the present
proceedings.
That period was five (5) years. In
Naptosa and
Others v Minister of Education, Western Cape, and others
2001 (2) SA
112
(C) at 126 E to G
Conradie J stated;-
“
I consider that
the substantial delay in bringing these proceedings is another reason
for exercising our discretion against the
grant of a declaratory
order. It is well established law that undue delay may be taken into
account in exercising discretion as
to whether to grant an interdict
or a mandamus, or to grant relief in review proceedings. The
declaratory order, being as flexible
as it is, can be used to obtain
much the same relief as would be vouchsafed by an interdict or a
mandamus. Where it is not necessary
that a record of proceedings be
put before the Court, the order could serve as a review. A Court,
in exercising its discretion
whether to grant a declaratory order
should, accordingly, in an appropriate case weigh the same
consideration of “justice
or convenience” as it might do
in the case of an interdict or a review.”
[20] In conclusion the failure of the
court
a quo
to give proper consideration to the
principles governing the granting of declaratory orders and its
failure to consider the lapse
of time between the adoption of
Resolution 1 of 1998 and the launch of the present proceedings is in
my view is a misdirection.
The declaratory order relates to a
complaint which had occurred in the past and which was subsequently
corrected. At the date of
the hearing lf this matter in the court a
quo that complaint no longer exited. It is plain that in the
circumstances of this case
the granting of declaratory relief in the
form sought by the respondents is, purely academic. In the light of
these circumstances,
the
Court a quo
ought to have refused the
relief sought by the respondents.
[21] In the result I make the
following order:
(1) The appeal is upheld
with costs including the costs of two counsel.
(2) The order of the
Court a quo
is set aside and
replaced with an order in the following terms:
“
the application is
dismissed with costs.”
_________________
JAPPIE
AJA
I
concur.
_________________
ZONDO
JP
I
concur.
_________________
H. M. MUSI AJA
On behalf of the Appellants: Adv M.
Brassey S.C.
With Adv. D.C. Wood
Instructed by:
Attorneys Bowman Gillfillan Inc.
Sandton
On behalf of the Respondents: Adv. J.
G. Grogan
Instructed by:
Attorneys Geldenhuys Botha Inc.
Centurion
Date of Judgment: 29 March 2007