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[2015] ZALAC 11
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National Employers Association of South Africa (NEASA) v Metal And Engineering Industries Bargaining Council (MEIBC) and Others (JA02/2015) [2015] ZALAC 11; (2015) 36 ILJ 2032 (LAC) (26 March 2015)
REPUBLIC
OF SOUTH AFRICA
THE LABOUR APPEAL
COURT OF SOUTH AFRICA, JOHANNESBURG
JA02/2015
DATE: 26 MARCH
2015
Reportable
In
the matter between:
NATIONAL
EMPLOYERS
ASSOCIATION
OF SOUTH AFRICA
(NEASA)
..................................................................
Appellant
And
METAL AND
ENGINEERING INDUSTRIES
BARGAINING
COUNCIL
(MEIBC)
.........................................................................
First
Respondent
GENERAL
SECRETARY OF THE
MEIBC
.........................................................
Second
Respondent
MINISTER
OF
LABOUR
..........................................................................................
Third
Respondent
THE
PRESIDENT OF THE
MEIBC
......................................................................
Fourth
Respondent
FURTHER
RESPONDENTS (PER LIST “A”)
.................................
Fifth
and Further Respondents
Heard:
26 March 2015
Delivered:
Order delivered on 26 March 2015
Summary:
Mootness – urgent application to interdict bargaining council
from requesting extension of collective agreement to
non-parties –
interdict refused and Minister thereupon extending collective
agreement to non-parties – Minister’s
decision then on
review – review of request to minister matter becomes moot as
purpose of the interdict overtaken by events
– no justifiable
reasons to entertain merits of matter despite mootness –Appeal
dismissed with costs.
Coram:
Waglay JP, Davis and Sutherland JJA
REASONS FOR THE
ORDER
SUTHERLAND JA
Introduction
[1]
On 26 March 2015, this Court declared the
appeal moot and dismissed the appeal with costs. These are the
reasons of the court.
[2]
The
appellant (NEASA) had sought in the Labour Court two orders. First,
to interdict the first, second and fourth respondents, (together
referred to as the MEIBC) from requesting the third respondent (the
Minister of Labour) to extend a collective agreement to non-parties,
pursuant to her powers in terms of section 32(3) of the Labour
Relations Act 61 of 1995 (LRA). Secondly, to set aside any decisions
taken by the MEIBC Management committee on 8 October 2014, which had
been the occasion of the decision, as contemplated in terms
of
section 32(1) of the LRA, to make a request to the Minister of
Labour.
[1]
[3]
The relief was sought on 23 October 2014.
Judgment (per Rabkin-Naicker) was given on 1 December 2014,
dismissing the application.
The application for leave to appeal was
lodged on 3 December and leave to appeal was granted on 18 December
2014.
[4]
Whilst these happenings occurred, the
MEIBC, on 10 December 2014, requested the Minister to extend the
agreement. She did so on
24 December 2014, and the extension was made
effective from 6 January 2015. NEASA has brought a review application
against the
Minister of Labour to set aside the extension, which
application is pending at the time the appeal was heard on 26 March
2015.
[5]
The argument is now advanced on behalf of
the MEIBC that the appeal is moot. NEASA is of the view that it is
not. What this Court
is required to decide is whether the appeal is
moot, and if so, do circumstances exist that require a judgment on
the merits of
the dispute between the parties.
Is the appeal
moot?
[6]
The Constitutional Court has held that:
‘
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’.
[2]
[7]
In
my view, the mootness of this appeal is plain. The interdictory
relief sought has been overtaken by events. The action which
it was
formulated to prevent has occurred. The relief which was sought is
now perfectly academic.
[3]
[8]
Whether the Minister of Labour has properly
acted pursuant to section 32(3) of the LRA is a question distinct
from that which the
court
a quo
addressed. The validity of the Minister’s decision is the
subject matter of the pending review. On the principle established
in
Oudekraal Estates (Pty) Ltd v City of
Cape Town and Others
2004 (6) SA 222
(SCA) and reaffirmed in
MEC for Health,
EC v Kirland Investments (Pty) Ltd t/a Eye Laser Institute
2014 (3) SA 481
(CC), the decision of the Minister must be directly
impugned to be declared invalid, and, even if found to be invalid, a
further
enquiry must be embarked upon to assess what relief should
follow, the range of which includes the prospect of allowing the
effects
of the invalid decision to remain effective.
[9]
Nevertheless, it was argued that the matter
cannot be moot because an aspect of the judgment
a
quo
which dealt with a legal question
central to that controversy; ie being the proper interpretation of
section 32(1) which is also
an issue central to the controversy in
the review challenging the Ministers’ extension decision of 24
December 2014. Accordingly,
runs the argument, the judgment of the
court
a quo
on
that point, which went against the view preferred by NEASA, and which
is crucial to the success of the pending review, will be
flourished
by the opposition and NEASA will be met with a claim of
res
judicata
or of issue estoppel. Thus, it
is further contended, the law point about the interpretation remains
a live and not an academic
question. In my view, even if a
legal
point
remains controversial, that does
not save a
matter
from being moot.
[10]
However,
in my view, the risk of issue estoppel does not arise. The
requirements for issue estoppel were articulated in
Prinsloo
NO v Goldex 15 (Pty) Ltd
2014
(5) SA 297
(SCA) as being (1) two matters founded on the same cause
of action, (2) seeking the same relief, (3) between the same parties.
Moreover, and at esp [24] - [26], the SCA held that the defence of
issue estoppel would be allowed on an
ad
hoc
basis and only in circumstances where unfairness does not result.
[4]
[11]
The circumstances that present in this
matter are that in the first matter, relief was sought to prevent a
request for an extension
and in the pending second matter, the relief
sought is to invalidate a decision extending the collective
agreement. Moreover, as
seems to be common cause, the pending review
is substantial and comprehensive, as distinct from the urgent review
that came before
the court
a quo
.
Furthermore, as it evident, the cause of action in the first matter
was the alleged impropriety of the MEIBC’s conduct and
in the
second matter, the alleged impropriety of the Minister’s
conduct. It is true that a collateral attack is to be made
on the
conduct of the MEIBC, but the cause of action is nevertheless
distinct.
[12]
Accordingly, the argument that NEASA is
certain to be trumped on the point of issue estoppel is unconvincing.
[13]
The appeal before this Court is moot.
Despite Mootness
is a judgment on the merits required?
[14]
The
occasion for a judgment on the merits to be given when a matter is
moot is self- evidently exceptional. It is in the exercise
of a
discretion in the service of the interests of justice whether to do
so.
[5]
[15]
An example of such circumstances is that
offered by
Buthelezi and Others v
Minister of Home Affairs and Others
2013 (3) SA 325
(SCA), the case of the Dalai Lama’s patient
request for a visa. The appeal was heard long after the event for
which the visa
was intended had passed and the Dalai Lama no longer
could use it. The attack on the department of Home Affairs was that
its officials
had been
mala fide
in deliberately procrastinating on the application to defeat its
purpose. This irregular conduct was held to remain a live issue
which
the court dealt with on appeal. Both parties accepted that the
controversy remained alive and so the court had no need to
resolve a
debate, but held that that stance adopted by the parties was correct.
[16]
The test to decide whether to give a
judgment was formulated by Wallis JA in
Qoboshiyane
thus:
‘…
.there
are a number of cases where, notwithstanding the mootness of the
issue as between the parties to the litigation, it has dealt
with the
merits of an appeal. With those cases must be contrasted a number
where the court has refused to deal with the merits.
The
broad distinction between the two classes is that in the former a
discrete legal issue of public importance arose that would
affect
matters in the future and on which the adjudication of this court was
required, whilst in the latter no such issue arose.’
[6]
(Emphasis supplied)
[17]
In this case, the two questions arise.
First, does a discrete legal issue of public importance that would
affect future matters?
(For present purposes, the point of
controversy, the interpretation of section 32, can be taken to be
enduring in character). Second,
is adjudication
required
by this Court? “Required”
in this context, in my view, means “necessary”, that it
might be said that it
would be prudent to do so to address the risk
of the point being the bone of litigation in future because the
policy motivation
to do so is to avoid future litigation over the
legal point.
[18]
However, this Court is informed that there
is already an existing and pending review application that will
address the question
of the interpretation of section 32, among other
questions. The very existence of contemporaneous and incomplete
litigation on
the identical issue, which compels an examination of a
composite number of factors, together with the section 32
interpretation
question, produces a situation in which a judgment
from this Court is not, in my view, “required”. Indeed,
it seems
that the pending review application is the appropriate
occasion upon which to plumb the depths of the whole controversy
between
the parties in context, and not piecemeal, which would be
what this Court would be doing by deciding one of several questions.
These factors seem to give rise to a substantial reason why it would
be inappropriate for this Court to decide the issue in a moot
case
and in consequence of which the court’s discretion to decide
the legal question, despite the mootness of the matter,
should be
exercised against doing so.
Conclusion
[19]
The matter is moot and a judgment on the
merits is not required.
[20]
The order as to costs should follow the
result.
The Order
[21]
For the reasons given, the order was made on 26 March as follows:
(1)
The case is declared to be moot and no
judgment on the merits is required.
(2)
The Appeal is dismissed with costs.
Sutherland
JA
I agree
Waglay JP
I agree
Davis JA
APPEARANCES:
FOR THE
APPELLANT: Adv A Freund SC, with him, Adv G Leslie
Instructed by
Anton Bakker
FOR FIRST SECOND
AND
FOURTH
RESPONDENTS: Adv N Cassim SC, With him Adv F Boda and Adv R Itzkin
Instructed by
Patelia-Cachalia
FOR THE 37
TH
RESPONDENT
(NUMSA): Adv J Van der Riet SC
Instructed
by Ruth Edmonds
[1]
The
relevant portions of Section 32 of the LRA provides:
(1)
A bargaining council may ask the Minister in writing to extend a
collective agreement concluded in the bargaining council
to any
non-parties to the collective agreement that are within its
registered scope and are identified in the request, if at
a meeting
of the bargaining council-
(a)
one or more registered trade unions whose members constitute the
majority of the members of the trade unions that are party
to the
bargaining council vote in favour of the extension; and
(b)
one or more registered employers' organisations, whose members
employ the majority of the employees employed by the members
of the
employers' organisations that are party to the bargaining council,
vote in favour of the extension.
(2)…
(3)
A collective agreement may not be extended in terms of subsection
(2) unless the Minister is satisfied that-
(a)
the decision by the bargaining council to request the extension of
the collective agreement complies with the provisions of
subsection
(1);
(b)
the majority of all the employees who, upon extension of the
collective agreement, will fall within the scope of the agreement,
are members of the trade unions that are parties to the bargaining
council;
(c)
the members of the employers' organisations that are parties to the
bargaining council will, upon the extension of the collective
agreement, be found to employ the majority of all the employees who
fall within the scope of the collective agreement;
(d)
the non-parties specified in the request fall within the bargaining
council's registered scope;
(e)
provision is made in the collective agreement for an independent
body to hear and decide, as soon as possible, any appeal
brought
against-
(i)
the bargaining council's refusal of a non-party's application for
exemption from the provisions of the collective agreement;
(ii)
the withdrawal of such an exemption by the bargaining council;
(f)
the collective agreement contains criteria that must be applied by
the independent body when it considers an appeal, and that
those
criteria are fair and promote the primary objects of this Act; and
(g)
the terms of the collective agreement do not discriminate against
non-parties.”
[2]
Coalition
for Gay and Lesbian Equality and Others v Minister of Home Affairs
and Others
2000
(2) SA 1
(CC) at 18, fn18.
[3]
The
Notice of motion was formulated thus:
“
2.1
Interdicting and restraining the first and second respondents from
requesting the third respondent to extend the first respondent’s
main collective agreement to non-parties in terms of section 32 of
the LRA insofar as the request is based on any decision purportedly
taken by the first respondent at its special management committee
meeting on 8 October 2014 and/or the balloted vote of the first
respondents representatives concluded on 14 October 2014.
2.2
Insofar as may be necessary, reviewing and setting aside any and all
decisions which the first respondent purported to take
at its
special management committee meeting of 8 October 2014, pertaining
to a request to the third respondent to extend the
first respondents
main collective agreement to non-parties in terms of section 32 of
the LRA.”
[4]
The
Passages from the judgment of Brand JA are [24] – [26]:
[24]
At the same time, however, our courts have realised that relaxation
of the strict requirements of
res iudicata
in issue estoppel
situations creates the potential of causing inequity and unfairness
that would not arise upon application of
all three requirements.
That potential is explained by Lord Reid in
Carl Zeiss Stiftung v
Rayner & Keeler Ltd
[1966] 2 All ER 536
(HL) at 554G –
H when he said:
'The
difficulty which I see about issue estoppel is a practical one.
Suppose the first case is one of trifling importance but
it involves
for one party proof of facts which would be expensive and
troublesome; and that party can see the possibility that
the same
point may arise if his opponent later raises a much more important
claim. What is he to do? The second case may never
be brought. Must
he go to great trouble and expense to forestall a possible plea of
issue estoppel if the second case is brought?'
[25]
One can also imagine a situation where a purchaser seeks
confirmation of his or her purported cancellation of the sale in
motion proceedings. The seller may decide that the expensive and
time-consuming game is not worth the candle and thus decide
not to
oppose. But if the purchaser were then to sue for substantial
damages the application of issue estoppel in the second
case may
cause clear inequity. The same situation will not arise in the case
where all the requirements of
res iudicata
are satisfied. In
that event the relief sought in both cases will be the same. The
seller will have to decide whether to speak
up in the first case or
hold his or her peace in the second.
[26]
Hence, our courts have been at pains to point out the potential
inequity of the application of issue estoppel in particular
circumstances. But the circumstances in which issue estoppel may
conceivably arise are so varied that its application cannot
be
governed by fixed principles or even by guidelines. All this court
could therefore do was to repeatedly sound the warning
that the
application of issue estoppel should be considered on a case-by-case
basis and that deviation from the threefold requirements
of
res
iudicata
should not be allowed when it is likely to give rise to
potentially unfair consequences in the subsequent proceedings (see
eg
Kommissaris van Binnelandse Inkomste v Absa Bank Bpk
supra
at 676B – E;
Smith v Porritt
supra para 10). That, I
believe, is also consistent with the guarantee of a fair hearing in
s 34 of our Constitution.”
[5]
Qoboshiyane
NO v Avusa
Publishing
Eastern
Cape and Others
2013
(3) SA 315
(SCA) (
Qoboshiyane)
at
para 7.
[6]
Qoboshiyane
at
para 5.