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[2012] ZALAC 52
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ADT Security (Pty) Ltd v National Security And Unqualified Workers Union and Others (CA18/11) [2012] ZALAC 52; [2014] 11 BLLR 1096 (LAC); (2015) 36 ILJ 152 (LAC) (21 September 2012)
REPUBLIC
OF SOUTH AFRICA
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, CAPE TOWN
JUDGMENT
…
............................................................................................................................
Case
no: CA18/11
…
.............................................................................................................................'........
Reportable
…
...............................................................................................................
Date:
21 September 2012
In
the matter between:
ADT
SECURITY (PTY) LTD.
..................................
Appellant
and
NATIONAL
SECURITY AND UNQUALIFIED
WORKERS
UNION
...................................................
First
Respondent
CAPE
TOWN METRO MUNICIPALITY
..............
Second
Respondent
INSPECTOR
B BOTHA NO
....................................
Third
Respondent
Heard:
24 May 2012
JUDGMENT
Hlophe
AJA
Introduction
[1]
This is
an appeal against the findings and order made by Steenkamp J in the
Labour Court in terms of which the learned judge found
that:
1.1
The First
Respondent was entitled to rely upon the Regulation of Gatherings
Act, 205 of 1993 (“the RGA”) and its right
to demonstrate
and gather;
1.2
The
gathering would not amount to a breach of contract;
1.3
That the
gathering was lawful in terms of the provisions of the RGA;
1.4
That the
Labour Relations Act 66 of 1995 (“the LRA”) does not
limit the right of the First Respondent to gather and
picket in
relation to the issues in dispute between the Appellant and the First
Respondent;
1.5
That the
planned gathering was lawful; and
1.6
That the
Appellant did not satisfy the requirements for a final Interdict.
[2]
The
Appellant is seeking an order on appeal in the following terms:
2.1
Upholding
the appeal;
2.2
Declaring
that the First and/or Second Respondents’ march and picket on 5
September 2011 was unlawful;
2.3
Interdicting
the First and Second Respondents from engaging in any further
marching and/or picketing in support of their grievances
until such
time as they have complied with the provisions of section 64(1) of
the LRA.
[3]
The
Appellant, ADT Security (Pty) Ltd, is a company with limited
liability incorporated in terms of the Companies Act 61 of 1973,
and
is involved in the business of providing armed response, monitoring
and guarding services.
[4]
The First
Respondent is the National Security and Unqualified Workers Union, a
registered trade union in terms of the LRA and a
body corporate
capable of suing and being sued in its own name. The Union is cited
in these proceedings in its individual and representative
capacities.
[5]
The
Second Respondent is the Cape Town Metro Municipality, a municipality
established in terms of the
Local Government Municipal Structures Act
117 of 1998
. To the extent that the Second Respondent does not oppose
the appeal, no relief is sought against the Second Respondent.
[6]
The Third
Respondent is inspector Botha, acting in official capacity as a
Responsible Officer in terms of the RGA. To the extent
that the Third
Respondent does not oppose the appeal, no relief is sought against
the Respondent.
Background
facts
[7]
The facts
are by large not in dispute and can be summarised as follows. The
Appellant approached the Court a quo for an interdict
prohibiting its
employees who were the members of the First Respondent to participate
in a planned “march” at the Appellant’s
head
offices, which had been organised and/or called for by the First
Respondent. The Appellant sought to interdict the gathering
on the
basis that it was unlawful. The Appellant’s cause of action was
twofold: Firstly, that the “march” and/or
picket planned
was unlawful because it circumvented the provisions of the LRA, and
secondly; that the “march” and/or
picket would constitute
a breach of contract. In support of the application, the Appellant
contended that it does not recognise
the First Respondent as a
collective bargaining agent as the First Respondent had not acquired
organisational rights in terms of
the LRA. The Appellant only deducts
trade union subscriptions from its employees’ remuneration and
remits same to the First
Respondent on a monthly basis; therefore
save for such “organisational right”, the First
Respondent has no other organisational
right as contemplated in the
LRA.
[8]
The
First Respondent, however, rather than relying on the mechanisms
afforded to it in terms of the LRA, applied to the Second Respondent
to have a gathering in terms of
section 3
of the RGA. In terms of the
RGA, a
“
gathering”
is
defined as
“
any
assembly, concourse or procession of more than 15 persons in or on
any public road as defined in the Road Traffic Act 29 of
1989 or any
other public place or premises, wholly or partly open to the air, and
it includes, inter alia, a gathering held to
hand over petitions to
any person or to mobilise or demonstrate support for, or opposition
to the views, principles, policies,
actions or omissions of any
person or body of persons or institution, including any government
administration or governmental institution”.
The
march was scheduled to take place on 5 September 2011. The First
Respondent was given permission to march by the Second Respondent
and
in terms of section 4(4) of the RGA an agreement was reached between
the Third Respondent, and the convenor, as well as authorised
members
of the South African Police Services and the Metro Police and the
traffic services. The agreement set out that the gathering
should be
in the form of a procession. Furthermore, it should strictly follow a
defined route. Upon receiving permission from the
Second Respondent,
the First Respondent organised and planned a “march” at
the Appellant’s head offices in reaction
to the Appellant’s
refusal to grant organisational rights to the First Respondent.
[9]
In the
Court a quo, Steenkamp J held that the “march” and/or
picket was lawful because it was sanctioned by section
17 of the
Constitution of the Republic of South Africa Act of 1996 (“the
Constitution”). Section 17 of the Constitution
gives effect to
the right to assemble, demonstrate and picket, which right was given
effect to by the RGA. The right that the First
Respondent sought to
exercise was not premised on any provision of the LRA. In that they
(the First Respondent) did not seek to
engage in strike action as
defined within the LRA, but rather, the First Respondent relied on
Section 17 of the Constitution as
given effect to by the RGA. In
addition, the Appellant itself did not argue that the planned “march”
and /or gathering
fell within the definition of a strike. The
Appellant merely contended that the planned march was unlawful. In
this regard, the
Court a quo thus held that the right afforded by
section 17 of the Constitution is a right extended to everyone and
not just employees.
However, the right is limited by the provisions
of the RGA. One of those limitations is the prerequisite to give
notice and to
provide the necessary information to the relevant
authority. The Court held that in this regard it was common cause
that such notice
had been given to the Second Respondent.
Furthermore, the Second Respondent had granted the First Respondent
permission to proceed
with the planned “march” and/or
gathering.
[10]
Steenkamp
J further held that the planned march did not constitute a breach of
contract as the members of the First Respondent who
would be
participating in the planned “march” were not obliged to
tender their services to the Appellant during the
time of the planned
protest as they (employees) would be off duty at the said time, and
as a result, their participation would
not amount to a breach of
contract. The Court a quo therefore held that the Appellant had not
satisfied the requirements of a final
interdict and the application
was accordingly dismissed.
Issues
to be decided
[11]
The issues on appeal are the following:
11.1
Does the
Labour Court have jurisdiction to determine the compliance or
otherwise by the First Respondent and its members, with the
RGA, in
an employment related dispute?
11.2
If it
does, is the exercise by the First Respondent and its members of
their constitutionally protected right (section 17 of the
Constitution) to assemble, march, demonstrate, picket and present
petitions through the mechanisms of the RGA prohibited by the
LRA or
against public policy or in conflict with the LRA?
Applicable
law
[12]
In short,
the Appellant’s case, as presented in the Court a quo and on
appeal, is that there is a concern over matters regulated
by the RGA
and the interplay between protest action in terms of the LRA and
picketing in terms of the RGA. This Court therefore
is tasked with
the duty of dealing with the right of off-duty employees who wished
to march, gather and picket for purposes of
handing over a petition
to senior management concerning disputes of right and interest that
are covered by labour law.
Jurisdiction
[13]
In my
view, the law, in the form of provisions contained in labour
legislation, and in particular section 157 of the LRA, clearly
establishes the Labour Court’s powers to grant an interdict.
Section 158 (a)(iii) empowers the Labour Court to make an order
directing the performance of any particular act which order, when
implemented, will remedy a wrong and give effect to the primary
objects of the LRA. The Labour Court has similar powers under the
Basic Conditions of Employment Act 75 of 1997 (“the BCEA”),
in terms of sections 77(3) and 77A. In terms of section 77(3), the
Labour Court is entitled to adjudicate a dispute concerning
a
contract of employment and section 77A empowers the Labour Court to
make any appropriate order. Similarly, the Labour Court has
broad
powers, under section 50 of the Employment Equity Act 55 of 1998
(“EEA”), to make any appropriate order. When
a party does
not follow the conciliation and arbitration process, the Labour
Court, by implication of section 157 read with section
158, has the
power to interdict or issue a declaratory order to achieve the
objects of the LRA. Therefore, the Court a quo, per
Steenkamp J,
correctly exercised jurisdiction over the dispute.
The
right of off-duty employees who wish to march, gather and picket for
the purpose of handing over a petition to senior management
concerning disputes of rights and interests that are covered by
Labour Law
[14]
The
Appellant framed its cause of action in the first instance on the
basis that the employees were circumventing the provisions
of the LRA
and in the second instance on a breach of contact. Counsel for the
Appellant, Mr F A Boda, argued that the LRA constitutes
specialised
legislation, which deals specifically with matters and issues that
emanate from the workplace, and more specifically,
provides a
framework within which collective bargaining is regulated. It was
further submitted that in terms of the LRA, insofar
as disputes of
interest and disputes of right are concerned, the LRA places an
obligation on employees to refer all interest disputes
to the
Commission for Conciliation, Mediation and Arbitration (“the
CCMA”) and/or Labour Court for conciliation and/or
adjudication
before any action against an employer is taken. Counsel for the
Appellant argued in the Court a quo that the Union
and its members
did not refer any dispute to conciliation, nor did they comply with
the requirements of the LRA insofar as their
disputes of right are
concerned, in particular the demand relating to organisational
rights. Section 22 of the LRA obliges parties
to refer any dispute
regarding organisational rights to the CCMA for conciliation and, if
need be, to arbitration.
[15]
In
essence, the Appellant submitted that such non-compliance and use of
the provisions of the RGA as an alternative mechanism amounts
to the
circumvention of the provisions of the LRA. This Court must
accordingly determine whether the reliance by the Union on the
provisions of the RGA and/or Constitution amounts to a circumvention
of the provisions of the LRA. Section 210 of the LRA clearly
provides
that: “If any conflict relating to matters dealt with in this
Act, arises between this Act and the provisions of
any other Act,
save for the Constitution or any Act expressly amending this Act, the
provisions of this Act will prevail.”
[16]
It is the
Appellant’s submission that, as the RGA does not require or
provide for conciliation, there arises a clear conflict
between the
two statutes. However, in this regard, the wording of section 210 of
the LRA unambiguously instructs the supremacy
of its provisions in
instances of such conflict, with the exclusion of provisions
contained in the Constitution and/or amending
legislation.
[17]
The
Court was referred to various decisions in support of the contention
advanced above. Reference was made
inter
alia
to
ADT
Security (Pty) Ltd v
SATAWU
[1]
,
Sidumo
&
Another v Rustenburg Platinum Mines Ltd & Others
[2]
and
Chirwa
v Transnet Ltd & Others
.
As submitted by Counsel for the Appellant, and confirmed in the
Constitutional Court decisions of
Sidumo
and
Chirwa
,
the LRA was a product of negotiation between labour and management
through the National Economic Development and Labour Council
Act 35
of 1994 (“NEDLAC”), which requires all labour legislation
to be negotiated through an integrated framework in
which organised
labour and management may engage one another over the full range of
industrial issues. Furthermore, the LRA comprehensively
regulates
employment disputes and employee’s right to picket in respect
of matters related thereto. The RGA was, however,
not negotiated
through NEDLAC, and therefore, the inference is that the Legislature
could not have intended for the RGA to apply
in matters that are
comprehensively dealt with in specialised legislation. In particular,
the Legislature could not have intended
for the right to a gathering
or picket which is afforded to “everyone” by the RGA, to
apply in employment related matters
which are expressly provided for
within the LRA.
[18]
In
Sidumo
,
Navsa AJ held that “the LRA is a specialised negotiated
legislation giving effect to the right to fair labour practices”
[4]
and “for more than a century courts have applied the principle
that general legislation, unless specifically indicated, does
not
derogate from special legislation”.
[5]
Skweyiya J in
Chirwa
took the matter a step further and held that in his view the
existence of purpose-built employment framework in the form of the
LRA and associated legislation implies that labour processes and
forums should take precedence over non-purpose-built processes
and
forums in situations involving employment related matters.
[6]
Furthermore, only the Constitution itself or a statute that expressly
amends the LRA can take precedence in application to such
labour
matters.
[7]
[19]
In
NAPTOSA
& Others v Minister of Education of Western Cape & Others
[8]
,
the Cape High Court held that a litigant may not bypass the
provisions of the LRA and rely directly on the Constitution without
challenging the provisions of the LRA on constitutional grounds.
[9]
Conradie J (as he then was) further held that to grant relief which
would encourage the development of two parallel systems would
in his
view be singularly inappropriate. Taking into account the right to
fair labour practices and the duties imposed thereby
on employers and
employees alike. It is not a right which can, without an intervening
regulatory framework, be applied directly
in the work place. The
social and policy issues are too complex for that.
[10]
[20]
The
Constitutional Court in
Minister
of Health and Another NO v New Clicks South Africa (Pty) Ltd and
Others (Treatment Action Campaign and Another as Amici
Curiae)
[11]
,
per Ngcobo J (as he then was), held “that there was
considerable force in the approach taken in
Naptosa
”.
The learned Judge noted that if it were not to be followed, the
result might well be the creation of dual systems of jurisprudence
under the Constitution and under legislation.
[12]
[21]
The
dictum in
Naptosa,
as applied in
New
Clicks
,
was confirmed by the Constitutional Court per O’Regan J in
South
African Defence Union (SANDU) v Minister of Defence
,
[13]
where the Court
held:
“
Accordingly
a litigant who seeks to assert his or her right to engage in
collective bargaining under s 23(5) should in the first
place base
his or her case on any legislation enacted to regulate the right, not
on s 23(5). If the legislation is wanting its
protection of the s
23(5) right in the litigant’s view, then that legislation
should be challenged constitutionally. To permit
the litigant to
ignore the legislation and rely directly on the constitutional
provision would be to fail to recognise the important
task conferred
upon the Legislature by the Constitution to respect, protect, promote
and fulfil the rights in the Bill of Rights.
The proper approach to
be followed should legislation not have been enacted as contemplated
by s 23(5) need not be considered now.”
[22]
Mr Boda
further submitted that section 67 of the LRA provides that a person
does not commit a breach of a contract by taking part
in a protected
strike or protected lock-out. Therefore, this signifies that only
employees embarking on a protected strike, in
accordance with the
provisions of the LRA, are protected from civil proceedings against
them. Mr Boda also submitted further that,
in this instance, the
First Respondent planned a gathering and/or picket in terms of the
RGA, and the RGA does not provide employees
with immunity from breach
of contract claims if they participate in protest action.
[23]
It is the
Appellant’s submission that, although the employees are not
obliged to render services during non-working hours,
their breaks
cannot absolve them from remaining loyal to the employer. In
addition, employees have a duty to maintain the integrity
of the
employer-employee relationship, and off- duty misconduct may entitle
an employer to cancel the contract. Therefore, by protesting,
the
employees breached their duty of good faith and loyalty, and as a
result committed misconduct under common law.
[24]
Of
particular significance is the dictum of Cele AJ in SATAWU, where the
Labour Court held:
“…
We
have here employees who, if I have to accept their contention, will
be out of duty on that day, will be working nightshift, but
they will
be going to the place of employment. In other words, it is the head
office that is the place where the employer is based,
they will be
making demands that are work-related, as these demands have been
listed clearly here. Therefore in my view, the demands
that they seek
to make are indeed demands that can be made under the collective
bargaining. If these employees had sought to go
out and march, had
sought to go out and picket on any other issues that are not
employer/employee related, I would have seen the
matter differently
because at their time they would have been free to engage themselves
under the protection they have, the right
of assembly as is a right
enshrined in the Constitution.. .clearly the respondents in this
respect are circumventing the clear
provisions of the
Labour
Relations Act without
challenging the Act … and as a
conclusion, I do find that such would be unlawful in the
circumstances.”
[14]
[25]
In the
appellant’s supplementary submissions, Mr Boda further
submitted that the right to picket was not exercised with due
regard
to the appellant’s rights under the LRA, which require disputes
relating to organizational rights to be referred first
for
conciliation, and if that fails, for arbitration or at the election
of the Union, and the workers by exercise of protected
action in
terms of the LRA.
[26]
In
advancing the above submission, the appellant relied on the
Constitutional Court decision of
South
African Transport and Allied Workers Union (SATAWU) & one other v
Jacqueline Garvas and 8 others
.
[15]
In this matter, the
First Applicant, SATAWU, organised a gathering of thousands of
people, in an attempt to register certain employment-related
concerns
of its members within the security industry. The gathering was
organised in terms of section 17 of the Constitution. In
this regard
the court held:
“
The
right to freedom of assembly is central to our constitutional
democracy. It exists primarily to give a voice to the powerless.
This
includes groups that do not have political or economic power, and
other vulnerable persons. It provides an outlet for their
frustrations. This right will, in many cases, be the only mechanism
available to them to express their legitimate concerns. Indeed,
it is
one of the principle means by which ordinary people can meaningfully
contribute to the constitutional objective of advancing
human rights
and freedoms...Freedom of assembly is no doubt a very important right
in any democratic society. Its exercise may
not, therefore, be
limited without good reason...The fact that every right must be
exercised with due regard to the rights of others
cannot be
over-emphasised. ”
[16]
Application
of the law to facts
[27]
Steenkamp
J in the Court a quo distinguished the present matter from the matter
in SATAWU, and held that despite the Appellant’s
contention,
the First Respondent in this case had carefully stated that it was
not relying on the right to collective bargaining
but rather was
relying on the right to demonstration and gathering. Furthermore, the
First Respondent contended that the issues
behind its contemplated
gathering or march were not limited to the LRA issues; there were
further issues that would be detailed
in the memorandum to be handed
over on the day of the march. As a result, the Court a quo therefore
held that the First Respondent
did not rely on its rights protected
by the LRA; neither did it rely on the constitutional right to fair
labour practices as set
out in section 23 of the Constitution. The
First Respondent relied on section 17 of the Constitution. It did not
do so directly.
It relied on the applicable legislation which
regulates the rights to assemble, demonstration, picket and petition
as set out in
section 17 of the Constitution, and the Regulation of
Gatherings Act.
[28]
Steenkamp
J further held:
“…
A
further relevant factor to be taken into account is that, as I have
pointed out before, the workers that will take part in the
march ... will be off duty. Therefore their participation
in such a march will not be a breach of contract; neither will
it
form part of a strike as defined in the LRA. The workers will not be
withholding their labour. It appears to me, therefore,
that the
planned gathering may be inconvenient to the applicant and it may
even be said to be contrary to the spirit of the
Labour Relations Act
insofar
as the Union could also have sought to embark on a protected
strike and did not do so, but that does not make the planned
gathering
unlawful. The gathering is clearly lawful in terms of the
provisions of the Gatherings Act. That Act limits the constitutional
rights set out in section 17, only to the extent necessary. It would
be undesirable for this court, where legislation exists that
limits a
constitutional right, to limit that right further.”
[29]
In my
view Steenkamp J, correctly found that the members of the First
Respondent who would be participating in the planned “march”
were not obliged to tender their services to the Appellant during the
time of the planned protest as they (employees) would be
off duty at
that time, and, as a result, their participation would not cause
irreparable harm to the Appellant, nor would it amount
to a breach of
contract. Furthermore, it must be taken into consideration that the
right to a gathering provided for in the RGA
is, in essence, a
constitutional right entrenched in section 17 of the Constitution,
given effect to by the RGA.
[30]
Section 1
of the LRA states that the primary object of the LRA is “to
give effect to and regulated the fundamental rights
conferred by
section 23 of the Constitution”. It cannot be correct to allow
a litigant to bypass the LRA and approach the
magistrates’
court directly. As stated in the
Chirwa
case, a litigant cannot avoid dispute resolution mechanisms provided
for in the LRA by alleging a possible violation of a constitutional
right as that would undermine and frustrate the very primary objects
of the LRA, unless as per dictum by Cele AJ. In
Satawu
supra, the litigant is challenging the constitutionality of the
legislation and it can be shown that the violation falls within
the
ambit of section 36 of the Constitution; however, this is not
applicable in the current matter. The present dispute is one
to which
the approach adopted by the Constitutional Court in
Gcaba
v Minister of Safety and Security and others
[2010] 1 BCLR 35
(CC)
at para 56 is clearly applicable:
“
The
legislature is sometimes specifically mandated to create detail
legislation for a particular are, like equality, just administration
action (PAJA) and labour relations (LRA). Once a set of carefully
crafted rules and structures have 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 emphasized 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.”
The
dispute here is one concerning organisational rights and should
accordingly be dealt with in accordance with the procedure
contemplated in section 22 of the LRA.
[31]
The duty
of good faith extends even outside normal working hours. Accordingly,
it cannot be an excuse to say workers were merely
picketing during
their lunch hour which they had sacrificed. There can be no doubt
that picketing at the employer’s head
office even during their
lunch hour could impact on the employer’s good will and
reputation. In the light of the conclusion
to which we have come, it
is not necessary to decide the point about the good faith.
Relief
[32]
In
conclusion, the First Respondent, in relying on the provisions of the
RGA in participating in the gathering, was in fact circumventing
the
provisions of the LRA, even though the participation of off-duty
employees in the march did not amount to a breach of contract
as they
did so at their time. The First Respondent ought to have made use of
the procedures afforded to them by the LRA, which
contains carefully
crafted rules to deal with the specific kind of activity engaged in
by respondent.
Order
[33]
I
accordingly make the following order:
1.
The order
of the Court a quo is set aside.
2.
The
appeal is upheld with costs, such costs to include those incurred in
the employment of two counsels.
Hlophe
AJA
Davis
JA and Murphy AJA agreed.
APPEARANCES:
FOR
THE APPELLANT:
....................
Adv F
Boda
…
.....................
Instructed
by Routledge Modise Inc t/a Evershed
FOR
THE FIRST RESPONDENT:
.....
PJ Pretorius
SC
…
.........
Instructed
by Tonlinson &Mnguni Attorneys
[1]
Case
number J1099/08 of 13 June 2008.
[2]
(2007) 12 BLLR 11997 (CC).
[3]
(2008) 2BLLR 97 (CC).
[4]
Supra note 1 at para 94.
[5]
Ibid at para 102.
[6]
Supra note 2 at para 41.
[7]
Ibid at para 50.
[8]
2001 (2) SA 212
(C).
[9]
Ibid at 1231.
[10]
Supra note 8 at 123A-C.
[11]
2006 (2) SA311 (CC).
[12]
Ibid at paras 434-437.
[13]
2007 (5) SA 400
(CC) at para 51.
[14]
Supra note 1 at para 10.
[15]
Case number CCT 112/11
(2012) ZACC 13
(as yet unreported).
[16]
Ibid at para 61–69.