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[2011] ZALAC 9
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South African Transport and Allied Workers Union v ADT Scurity (Pty) Ltd (JA 48/08) [2011] ZALAC 9; [2011] 9 BLLR 869 (LAC); (2011) 32 ILJ 2112 (LAC) (26 May 2011)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA
(HELD
AT JOHANNESBURG)
Case No.: JA 48/08
SOUTH
AFRICAN TRANSPORT AND
ALLIED
WORKERS UNION
….........................................................................
Appellant
And
ADT
SECURITY (PTY) LTD
….....................................................................
Respondent
JUDGMENT
DAVIS JA:
Introduction
[1] This is an appeal against the
judgment of Cele AJ of 13 June 2008 in terms of which he granted an
urgent application brought
by the first respondent. As a result, a
gathering, march or picket called by appellant to be held on first
respondent’s premises
on 17 June 2008 was declared to be
unlawful. In addition, appellant and its members were interdicted
from gathering, marching or
picketing on the premises between 09h00
and 15h00 or between any other time on 17 June 2008. No costs order
was made.
[2] The dispute between the parties
turned on whether members of appellant, who were employed by first
respondent and were off duty,
could exercise their rights to march,
gather or picket outside of the premises of first respondent for the
purposes of handing
over a petition to senior management. In
particular the cases turned on whether this conduct was regulated by
the Regulation of
Gatherings Act 205 of 1993 (RAGA) and hence
disputes concerning such a picket or gathering fell within the
jurisdiction of the
High Court as opposed to the Labour Court.
Appellant contended that as it has complied with RAGA, this dispute
was not an issue
over which the Labour Court had jurisdiction.
Mootness
[3] Mr Cassim, who appeared together
with Mr Boda on behalf of first respondent, submitted that the
dispute raised by this appeal
was moot. The interdict had been
granted by the court on 13 June 2008 and restricted picketing on a
specific day, 17 June 2008,
on matters which affected the employer-
employee relationship. Although the appeal raises issues over matters
regulated by RAGA
and the interrelationship between strike action in
terms of the LRA and picketing in terms of RAGA, no live issue exists
which
requires the court to deal with what is now an academic
dispute.
[4] The principles relating to
mootness have been well established in
National Coalition for Gay
and Lesbian Equality and others v Minister of Home Affairs and others
[1999] ZACC 17
;
2000 (1) BCLR 39
(CC) in which the Constitutional Court said:
“
A case is moot and therefore
not justiciable, if it no longer presents an existing or live
controversy which should exist if the
Court is to avoid giving
advisory opinions on abstract propositions of law.
“ At page 54 footnote 18.
[5] In
Independent Electoral
Commission v Langeberg Municipality
[2001] ZACC 23
;
2001 (9) BCLR 883
(CC) the
Constitutional Court held that, where there was no live controversy
between the parties, and, in the absence of any suggestion
that any
order might have an impact on the parties, the disputes between the
parties were moot especially since future cases inevitably
presented
different factual matrices and hence no purpose would be served in
resolving the dispute. See also
Radio Pretoria v Chairman of the
Independent Communication Authority of South Africa and another
[2004] ZACC 24
;
2005 (3) BCLR 231
(CC).
[6] The question therefore is whether
there is any practical purpose served by adjudicating upon an appeal
against an order of the
court
a quo
which related to specific
events which had occurred in June 2008, almost three years ago.
[7] Aware of this problem Mr Daniels,
on behalf of the appellant, deposed to an affidavit claiming that the
grievances underlying
the dispute were still alive. However, Mr
Bruinders, who appeared on behalf of the appellant, was forced to
concede that there
was nothing in the record nor in any evidence
before this court which supported a conclusion that a dispute, two
and a half years
after it had given rise to an interdict, was still,
in any way, a live controversy between the parties. The very demands
set out
in appellant’s letter of 6 June 2008 are illustrative:
“
1. Duty Roster system to be
the same as the one used by Reaction Officers and head Office workers
7-4 and 7-3 system.
2. Recognition of Service and
service awards to be awarded to all staff members who qualified for
it as it has been a norm over
the years.
3. We demand that the following
Managers Mr J Seyfferdt, Paul Rossouw, JJ Barnard must mend their
attitude towards black employees
or resign.
4. Sundays and public holidays to
be paid double even if the employee is on duty as per roster.
5. Transportation from home to work
places to be allowed to employer who works nightshifts and transport
allowances.
6. Standardised salary to be
amended as a matter or effect to employees who are doing the same
job.
7. Nightshift allowance to be
negotiated and implemented as a matter of urgency.
8. All nightshift employees to be
backdated from the date of employment up until today (also to be
negotiated).
9. Appeal process needs to be
amended as a matter of urgency.
10. Failure to comply with the
deduction of stop order forms delivered with a result into a dispute.
11. Every employee that exceeds
nine hours to be paid overtime on each hour worked.
12. Pay query to be paid within 24
hours with interest and need to be attended immediately by the
Company.
13. Bicycle rider to be paid of the
salary of the Reaction Officer, riding and driving the reaction car
is the same, Personnel using
clocking machines, dogs, fire-arm must
be paid allowances or the highest grade from job description.
”
[8] These are demands which are
specific to the period in which they were made. This court has no
knowledge, in terms of the evidence
presented to it, that any of
these disputes are still alive or, on the contrary, have been
settled. On the basis of the dictum
of the Constitutional Court in
the
Langeberg
case, a further dispute turning on the
relationship between RGA and the Labour Relations Act may present a
different factual matrix
which, in itself (and I offer no comment
thereon) may give rise to a different set of arguments.
[9] Suffice to say, Mr Bruinders was
unable to provide evidential support for a submission that the order
of Cele AJ had any practical
effect on the present conduct or
activities of appellant. As Mr Cassim correctly submitted, in the
event that appellant seeks to
picket in future, a court will have to
determine the case on the particular set of facts presented to it.
What this appeal, in
effect, represents is an appeal for legal advice
from this court, an invitation that should be declined on the grounds
of the doctrine
of mootness.
[10] For this reason therefore, the
appeal is dismissed, including the costs of two counsel.
_____________
DAVIS JA
I Agree
________________
WAGLAY DJP
I Agree
____________________
MOLEMELA AJA
APPEARANCES
:
For the appellant: Adv. T.
Bruinders SC
Instructed by: R. Daniels of
Cheadle Thompson & Haysom
For the respondent: Adv. N A Cassim
SC with Adv. F A Boda
Instructed by: I Mahomed/S Wilkins
of Routledge Modise Inc.
Date of hearing: 7 March 2011
Date
of Judgment: 26 May 2011