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[2012] ZALCJHB 97
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UASA -The Union and Another v BHP Billiton Energy Coal South Africa and Another (JS1082/09) [2012] ZALCJHB 97; [2013] 1 BLLR 82 (LC); (2013) 34 ILJ 1298 (LC) (7 May 2012)
REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable
Of interest to other
Judges
case no: JS 1082/09
In the matter between:
UASA – THE UNION
........................................................................................
First
Applicant
ASSOCIATION OF
MINEWORKERS
AND CONSTRUCTION UNION
..................................................................
Second
Applicant
and
BHP BILLITON ENERGY
COAL
SOUTH AFRICA
..........................................................................................
First
Respondent
NATIONAL UNION OF
MINEWORKERS
..............................................
Second
Respondent
Heard :
07 May
2012
Delivered : 07 May
2012
Summary : Labour
Court’s Jurisdiction in terms of section 157 (1) of the Labour
Relations Act to determine the lawfulness
of an agency shop agreement
judgment
AC BASSON J
On 7 August 2012 this
Court made the following order:
The first point
in
limine
is dismissed.
The second point
in
limine
is upheld.
The issue of costs must
be determined at the conclusion of the trial.
Introduction
The first applicant in
this matter is UASA a trade union duly registered in accordance with
the Labour Relations Act
1
(‘the LRA’).
The second applicant is
the Association of Mineworkers and Construction Union Africa
(‘AMCU’) a trade union duly registered
in accordance
with the LRA.
(I
will refer to UASA and AMCU collectively as ‘the applicants’).
The first respondent is BPH Biliton Energy Coal
South Africa Limited
(‘BECSA’). The second respondent is the National Union
of Mineworkers (‘NUM’) a
trade union duly registered in
accordance with the provisions of the Act.
From the papers it
appears that it is common cause that BECSA owns and manages a number
of coal mines (Douglas Mine (this mine
is, however, being closed
down); Kutala Mine; Klipspruit Mine and Middleburg Mine) and employs
a significant number of employees
at each operation in one of four
grades (B, C, D or E) comprising as to B grade, general workers; as
to C grade most members
of the skilled and supervisory staff; as to
D grade some officials and managerial staff; and as to E grade
senior personnel such
as engineering and general managers. This
application only concerns B and C level employees. The applicant is
of the view that
the interests of members of each grade diverge
significantly. BECSA is of the view that it is irrelevant for
purposes of this
application whether there may be some differences
between the members of each grade as this application only applies
to B and
C level employees. I am in agreement with the latter
submission as this issue will be canvassed during the trial.
Apart from the four
mines, BECSA also has within its organisational structures a Central
Services Department, a mine closure operation,
a research unit
(“Yanka) and the BECSA Academy. These four units all fall
under Central Cervices and operate, according
to BECSA as part of a
single integrated BECSA business. According to the applicant,
each of these locations
(eight in total) is geographically and administratively a discrete
and separate unit and is treated as
a
separate
unit
by the respondents under the Threshold Agreement and Industrial
Relations Policy documents applicable at BECSA. It is stated
in the
statement of claim that each of these locations accordingly
constitutes a separate workplace within the contemplation
of the LRA
in general and section 25
2
in particular. This is
denied by BECSA. According to BECSA,
these
divisions, units and depots are not “independent” of one
another: All of these operations are situated in close
proximity to
each other in the Witbank/Middelburg area and are all controlled as
a single and integrated unit. According to BECSA,
these operations
do not operate independently from one another by reason of their
size, function or organisation. (As will be
pointed out hereinbelow,
this dispute is not the subject of these proceedings.)
During July 2009, BECSA
and the NUM entered into an Agency Shop Agreement (hereinafter
referred to as ‘the agreement’).
The agreement provides
for the deduction of agency fees from employees ‘within the B
and C levels job grades in a workplace
of BECSA’. The
agreement further conceives of BECSA as a single entity and the
degree of representation for the grant of
agency shop rights (a
clear majority) is determined with reference to BECSA’s
enterprise taken as a whole.
BECSA expressed an
intention to deduct with effect from November 2009 agency fees in
the amount of 1% from the basic salaries
of all BECSA employees in
the B and C grades who are not members of NUM.
Pursuant to this
intention, the applicants filed a statement of claim setting out the
following two causes of action:
The first claim relates
to a breach of section 25 of the LRA. The applicants argue that,
under section 25 of the
LRA, agency shop agreements can be lawful only if the union enjoys
the
majority
support within the
workplace
in which the agreement
is expressed to be binding. According to the applicants, within
BECSA, such support must be determined
by poling employees in
each
of the eight workplaces
and, for this purpose, they must be treated as separate and
discrete. The applicants therefore claim that
the agency shop
agreement is in breach of section 25 of the LRA because NUM’s
support was calculated with reference to
BECSA as a whole (and
therefore as a single workplace) instead of eight separate
workplaces. In its respective responses to the
statement of claim,
both BECSA and NUM deny that BECSA consists of eight workplaces for
proposes of poling support within the
workplace. Instead it is
submitted that the workplace of BECSA consists of all its operations
operating as a single unit.
3
The second claim
(assuming that the agency shop agreement is otherwise lawful and
enforceable) relates to the constitutionality
of the agency shop
agreement. In essence,
it
is claimed that the agency shop constitutes an impermissible
contravention of the rights to freedom of association and fair
labour practices embodied in clauses 18 and 23(1) of the Bill of
Rights respectively.
The applicants seek an
order declaring the agency shop agreement unlawful and invalid and an
interdict restraining the respondents
from implementing the agency
shop agreement. The applicants further claim that any monies deducted
from the applicants’ members
be reimbursed with interest.
[8] BECSA and NUM oppose
the claims and seek an order dismissing the claims.
[9] In its response to
the applicants’ statement of claim, NUM (the second respondent)
raised two points
in limine
. These two points in limine are
the subject of these proceedings:
Firstly, in relation to
the applicants’
first
claim,
it is submitted on behalf of NUM that the Labour Court does
not
have jurisdiction to
determine whether an agency shop agreement complies with section 25
of the LRA because that is not a matter
that has been assigned to
the Labour Court for determination in terms of ‘any other
law’, as envisaged in section
157(1)
4
of the LRA.
(I will refer to this
point as ‘the first point
in
limine.)
Secondly, in relation to
the applicants’
second
claim, NUM submits that
this constitutional challenge is bad in law. In essence,
it is argued that the
applicants have not challenged the constitutionality of section 25
of the LRA and therefore the claim does
not disclose a cause of
cause of action.
(I
will refer to this point as the ‘the second point
in
limine.
’
)
[10] BECSA opposes the
first point
in limine
raised by NUM but supports the second
point
in limine.
I am in agreement with the applicant that
should the jurisdictional point be upheld no evidence will be
required to determine the
applicants’ claim.
First point in limine
raised by the second respondent
[11] Mr Van der Riet, on
behalf of NUM, submitted with reference to section 157(1) of the LRA
that the Labour Court does
not
have
jurisdiction in respect of the question whether an agency shop
agreement complies with section 25 of the LRA nor does ‘any
other law’ assigns this question to the Labour Court. In
support of this argument, the Court was referred to the decision
in
Gcaba v
Minister of Safety and Security and Others
,
5
where the Constitutional
Court held that where section 157(1) of the LRA does not expressly
confer upon the Labour Court jurisdiction
to determine certain
issues, the High Court retains jurisdiction to determine those
disputes.
[12]
In
respect of BECSA’s submission to the effect that this Court
does have jurisdiction (see hereinbelow), Mr van Der Riet argued
that
the LRA must override the Basic Conditions of Employment Act’s
6
(‘BCEA’)
general provisions. Consequently,
the
answer to the jurisdictional challenge of this Court cannot be sought
in the BCEA as submitted by Mr. Myburgh.
[13] Mr Myburgh
7
on behalf of BECSA argued
the matter differently. He correctly pointed out that it does not
appear that NUM is arguing that the
Labour Court does not have
jurisdiction because the CCMA does, but rather that there is, in
effect, a
lacuna
in the LRA in that the
LRA does not provide for the resolution of disputes about the
lawfulness/validity of agency shop agreements
by this Court. What is,
however, clear is the fact that the CCMA does not have jurisdiction
to decide the lawfulness or validity
of agency shop agreements. The
CCMA only has jurisdiction in relation to the interpretation and
application of a valid collective
agreement (including an agency shop
agreement) in terms of section 24(6) of the LRA.
8
[14] This Court has
already had occasion to decide whether or not the Labour Court has
jurisdiction to pronounce on the validity
of agency shop agreements.
Francis, J in
Annandale
Building Materials (Pty) Ltd t/a Altocrete Brickworks and Another v
NUM
,
9
concluded that
this Court does have jurisdiction on the following basis:
‘
[40] This
brings me to the question whether this Court does have jurisdiction
to rectify the agency shop agreement. In terms of
section
24(6)
of the Act, a dispute over the
interpretation
of an agency
shop agreement must be referred to the CCMA which must attempt to
conciliate the dispute and if it fails to do so,
the dispute must be
resolved by the CCMA in arbitration. Where it is the
validity
of an agency
shop agreement that is challenged, the CCMA would lack jurisdiction
to entertain the dispute. The Labour Court would
have to exercise
jurisdiction over that dispute in terms of
section
157(1)
of the Act. That section confers on the Labour Court
“exclusive jurisdiction 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”. The Labour Court has general supervisory powers
and appellate jurisdiction in terms of
section
24(7)
of the Act in regard to some portions of an award dealing
with an agency shop agreement. It follows that it may pronounce on
the
validity of the agreement.’
10
[15]
Mr
Myburgh submitted with reference to this decision that the Court was
correct in considering whether the determination of the
lawfulness or
validity of an agency shop agreement is, in the language of section
157(1), a matter that ‘elsewhere in terms
of the [LRA] or in
terms of any other law [is] to be determined by the Labour Court’
but
submitted that the Court
was wrong in assuming jurisdiction on the basis that it did namely
that this Court has ‘general supervisory
powers’.
In this regard,
it was submitted that the
mere fact that this Court has supervisory powers or appellate
jurisdiction over CCMA awards regarding
the manner in which funds are
being administered and utilised in terms of section 24(7)
11
of the LRA (read with
section 25 (3) (c) and (d)) this does mean that it is clothed with
jurisdiction to determine a dispute about
the lawfulness or validity
of the agency shop agreement itself.
[16]
I
am in agreement with this submission. If regard is had to the
decision in
Fredericks
and Others v MEC for Education and Training, Eastern Cape and
Others
,
12
it is clear that the LRA
does not confer a general jurisdiction on this Court to deal with all
disputes arising from employment.
[17] The question,
therefore, arises namely where can the jurisdiction of this Court to
determine the applicants’ first claim
regarding the validity
and/or lawfulness of the agency shop agreement be located? Is this a
matter that can be determined in terms
of the LRA or is this a matter
than may be determined by the Labour Court in terms of ‘any
other law’? I am in agreement
with the submission that it does
not appear that there is a section in the LRA which expressly clothes
the Labour Court with jurisdiction
to determine the said dispute. Mr.
Myburgh argued that a jurisdictional foundation may be found in the
BCEA which, in the language
of the section 157(1) of the LRA
qualifies as ‘any other law’. Following on this argument,
Mr. Myburgh argued with
reference to section 34(1)(b) of the BCEA
which deals with deductions from remuneration of an employee, that
the Labour Court has
exclusive jurisdiction in terms of section 77(1)
of the BCEA in respect of all matters in terms of the BCEA. Section
34(1)(b) of
the LRA stipulates that an employer may not make any
deduction from an employee’s remuneration unless ‘the
deduction
is required or permitted in terms of a ... collective
agreement’
.
An agency shop agreement is a collective
agreement consequently the Labour Court has jurisdiction. The
jurisdictional foundation
of the Labour Court can, therefore, be
found in section 77(1) of the BCEA which provides that the Labour
Court ‘has exclusive
jurisdiction in respect of all matters in
terms of the [BCEA]’. Furthermore, in terms of section 77(2)
the Labour Court has
jurisdiction to ‘review... any act or
omission of any person in terms of [the BCEA] on any grounds that are
permissible in
law.’
[18] I am in agreement
that it would appear that the Labour Court has jurisdiction in terms
of section 77(1) and/or section 77(2)
of the BCEA on the basis set
out above. If regard is had to the applicants’ amended
statement of claim, it is clear that
what the applicants are claiming
is for an order declaring the agency shop agreement (permitting the
deduction from the applicants’
members’ salaries of an
agency fee) unlawful and invalid and for an order that all monies
deducted unlawfully from the applicants’
members with interest
to be reimbursed. This being the case for the applicants, I am
persuaded that the Labour Court has jurisdiction
in terms of section
157(1) of the LRA ‘in terms of any other law [in this case the
BCEA]’.
[19] In the event, the
first point
in limine
is dismissed.
The second point
in
limine (supported by both the first and second respondents)
[20] In respect of the
second point
in
limine
,
NUM argued with reference to case law that it has been held that,
where the legislature
gives expression to the Bill of Rights, a party cannot rely on the
Bill of Rights without challenging the
legislation in question first.
As already pointed out, this point is supported by the BECSA.
[21] Section 23(6)
13
of the Bill of Rights
(contained in the Constitution)
14
provides that national
legislation may recognise union security arrangements contained in
collective agreements and that,
to
the extent that such legislation may limit a right in the Bill of
Rights, the limitation must comply with section 36(1) of the
Constitution.
15
[22] As already pointed
out, the applicants argue that the agency shop agreement is
unconstitutional. Mr.
Brassey,
in arguing this point,
referred to various
decisions
16
which, according to him,
warrant this Court to conclude that an agreement under section 25 of
the LRA is not immune from constitutional
scrutiny.
[23] I am in agreement
with the submission that an agency shop agreement could not be
challenged without challenging section 25
of the LRA. In this regard,
the Court was referred to
the unreported decision in
Greathead
v Metcash Trading Ltd and Others
17
where the Court
pertinently held that, in order to succeed in declaring an agency
shop agreement unconstitutional, section 25 of
the LRA must first be
declared unconstitutional.
18
Moreover, where
legislation is enacted to give effect to a constitutional right, it
is not competent for a litigant to bypass legislation
(such as the
LRA) and rely directly on the Constitution in claiming that a
collective agreement (such as for example an agency
shop agreement)
is unconstitutional. In
Mazibuko
v City of Johannesburg and Others
19
the Court confirmed this
point and pointed out that were litigants permitted to ignore
legislation and rely directly on a constitutional
provision, it may
lead to the creation of a dual system of constitutional
jurisprudence: the one under the Constitution and the
other under
legislation.
20
See also
SANDU
v Minister of Defence and Others:
21
‘
[51]
Section
23(5)
expressly
provides that legislation may be enacted to regulate collective
bargaining. The question that arises is whether a litigant
may bypass
any legislation so enacted and rely directly on the Constitution. In
NAPTOSA
and Others v Minister of Education, Western Cape, and Others
,
the Cape High Court held that a litigant may not bypass the
provisions of the
Labour Relations Act 66 of 1995
, and rely directly
on the Constitution without challenging the provisions of the
Labour
Relations Act on
constitutional grounds. The question of whether this
approach is correct has since been left open by this Court on two
subsequent
occasions.
Then,
in
Minister
of Health and Another NO v New Clicks South Africa
(
Pty
)
Ltd
and Others
(
Treatment
Action Campaign and Another as Amici Curiae
),
Ngcobo
J writing a separate judgment held that there was considerable force
in the approach taken in
NAPTOSA
.
He 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. In my view, this approach is correct: 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.’
[24]
See lastly,
National
Manufactured Fibres Employers Association and Another v Bikwani and
Others
,
22
where Zondo J (as he then
was) held as follows: in respect of section 25 of the LRA:
‘
Where the
benefits of the deals secured through the efforts of the
representative trade union in collective bargaining are passed
on to
other employees who are not members of the representative trade
union, such employees should make a contribution towards
the costs
which the representative union incurs in connection with its
collective bargaining work. If they do not pay that is unfair
because
members of the representative trade union pay for those costs. An
agency shop agreement seeks to make them pay without
compelling them
to join the representative trade union... The fact that such workers
may be members of another union in the workplace
to which they pay
union dues does not turn them into paying riders. They remain free
riders... because they make no contribution
towards the collective
bargaining costs of the representative union...’
23
[25] In conclusion, in
the present matter, the applicants do not contend that the agency
shop agreement does not comply with the
requirements of section 25.
Put differently, the applicants do not contend that the agency shop
agreement is invalid. What they
do contend is that the agency shop
agreement, although lawful and binding in terms of section 25 of the
LRA, is unlawful and invalid
because it is unconstitutional. I have
already referred to relevant case law. The applicants should have
attacked the constitutionality
of section 25 of the LRA. As in
Greathead
the application therefore must be dismissed because
the attack is launched against the agency shop agreement and not the
constitutionality
of section 23 of the LRA which enables the
conclusion of an agency shop agreement.
[26] In the event, the
second point
in limine
is upheld.
1. In respect of costs I
have decided that the issue of costs must be determined at the
conclusion of the trial.
_______________________
AC BASSON J
Judge of the Labour Court
APPEARANCES:
For the Applicants :
Advocate M.Brassey SC
Instructed by : Bester &
Rhoodie Attorneys
For the First Respondent
: Advocate H.van der Riet SC
Instructed by : Brink
Cohen Le Roux Incorporated
For the Second Respondent
: Advocate A.Myburgh SC
Instructed by : Cheadle
Thompson Haysom Attorneys
1
Act
66 of 1995.
2
‘
25.
Agency shop agreements
(2) For the purposes of
this section, "representative trade union" means a
registered trade union, or two or more registered
trade unions
acting jointly, whose members are a majority of the employees
employed-
(a) by an employer in a
workplace; or
(b) by the members of an
employers' organisation in a sector and area in respect of which the
agency shop agreement applies.’
3
The
merits of this point will be determined by the trail court.
4
‘
157.
Jurisdiction of Labour Court
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.
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, and arising from –
employment and from
labour relations;
any dispute over the
constitutionally 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
the application of
any law for the administration of which the Minister is
responsible.
Any reference to the
court in the Arbitration Act, 1965 (Act No. 42 of 1965), must be
interpreted as referring to the Labour
Court when an arbitration
is conducted under that Act in respect of any dispute that may be
referred to arbitration in terms
of this Act.
The Labour Court may
refuse to determine any dispute, other than an appeal or review
before the Court, if the Court is not
satisfied that an attempt
has been made to resolve the dispute through conciliation.
A certificate issued
by a commissioner or a council stating that a dispute remains
unresolved is sufficient proof that an
attempt has been made to
resolve that dispute through conciliation.
Except as provided in
section 158(2), the Labour Court does not have jurisdiction to
adjudicate an unresolved dispute if this
Act requires the dispute
to be resolved through arbitration.’
5
[2009]
12 BLLR 1145
(CC) at paras 72
and
73
:
‘
[72]
Therefore,
section
157(2)
should not be understood to extend the jurisdiction of
the High Court to determine issues which (as contemplated by
section
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
section
157(2)(a)
,
(b)
and (c).
[73]
Furthermore, the LRA does not intend to destroy causes of action or
remedies and
section
157
should not be interpreted to do so. Where a remedy lies in
the High Court,
section
157(2)
cannot be read to mean that it no longer lies there and
should not be read to mean as much. Where the
judgment
of Ngcobo J in
Chirwa,
supra,
speaks
of a court for labour and employment disputes, it refers to labour
and employment-related disputes for which the LRA creates
specific
remedies. It does not mean that all other remedies which might lie
in other courts like the High Court and Equality
Court, can no
longer be adjudicated by those courts. If only the Labour Court
could deal with disputes arising out of all employment
relations,
remedies would be wiped out, because the Labour Court (being a
creature of statute with only selected remedies and
powers) does not
have the power to deal with the common law or other statutory
remedies.’
6
Act
75 of 1997.
7
I
have taken the liberty of quoting extensively from the first
respondent’s Heads of Argument in setting out the arguments
raised on behalf of BECSA.
8
See
in this regard:
NUMSA and Others v Highveld Steel and Vanadium
Corporation Ltd
[2002] 1 BLLR 13
(LAC) at para 21 and
Annandale
Building Materials (Pty) Ltd t/a Altocrete Brickworks and Another v
NUM
[2002] 11 BLLR 1058
(LC) at para 40.
9
[2002]
11 BLLR 1058
(LC) at para 40.
10
The
Court’s emphasis
11
‘
24.
Disputes about collective agreements
Any person bound by an
arbitration award about the interpretation or application of
section 25(3)(c) and (d) or section 26(3)(d)
may appeal against
that award to the Labour Court.’
12
[2002]
2 BLLR 119
(CC) at para 38: ‘
[38]
Section 157(1) therefore has the effect of depriving the High Court
of jurisdiction in matters that the Labour Court is required
to
decide except where the
Labour Relations Act provides
otherwise.
Deciding which matters fall within the exclusive jurisdiction of the
Labour Court requires an examination of the
Labour Relations Act to
see which matters fall "to be determined" by the Labour
Court. It is quite clear that the overall scheme of the
Labour
Relations Act does
not confer a general jurisdiction on the Labour
Court to deal with all disputes arising from employment. As Nugent
JA held in
Fedlife Assurance Ltd
:
". . .
s 157(1)
does not purport to confer exclusive jurisdiction upon the
Labour Court generally in relation to matters concerning the
relationship
between employer and employees."
’
See also
Fedlife
Assurance Ltd v Wolfaardt
[2001] 12 BLLR 1301
(SCA) at paragraph
25: ‘[25] Furthermore
s 157(1)
does not purport to confer
exclusive jurisdiction upon the Labour Court generally in relation
to matters concerning the relationship
between employer and
employee. Some of the implications were recently discussed by Zondo
JP in
Langeveldt v Vryburg Transitional Local Council and Others
(2001) 22 ILJ 1116 (LAC);
[2001] 5 BLLR 501
(LAC). Its exclusive
jurisdiction arises only in respect of 'matters that elsewhere in
terms of this Act or in terms of any law
are to be determined by the
Labour Court'. Various provisions of the 1995 Act identify
particular disputes or issues that may
arise between employers and
employees and provide for such disputes and issues to be referred to
the Labour Court for resolution,
usually after attempts at
conciliation have failed (see for example ss 9, 24(7), 26, 59,
63(4), 66(3), 68(1), 69, etc). In my
view those are the 'matters'
that are contemplated by s 157(1) and to which the Labour Court's
exclusive jurisdiction is confined
(though there may be some debate
in particular cases as to their ambit: See for example
Mondi
Paper (A Division of Mondi Ltd) v Paper Printing Wood and Allied
Workers Union and Others
(1997) 18 ILJ 84 (D);
Coin Security
Group (Pty) Ltd v SA National Union for Security Officers and Other
Workers and Others
1998 (1) SA 685
(C); (1998) 19 ILJ 43 (C).)’.
13
‘
23
Labour relations
(1) Everyone has the
right to fair labour practices.
(2) Every worker has the
right-
(a) to form and join a
trade union;
(b) to participate in
the activities and programmes of a trade union; and
(c) to strike.
(3) Every employer has
the right-
(a) to form and join an
employers' organisation; and
(b) to participate in
the activities and programmes of an employers' organisation.
(4) Every trade union
and every employers' organisation has the right-
(a) to determine its own
administration, programmes and activities;
(b) to organise; and
(c) to form and join a
federation.
(5) Every trade union,
employers' organisation and employer has the right to engage in
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 (10
14
Act
108 of 1996.
15
See
generally , Cheadle
et al, South African Constitutional Law: The
Bill of Rights (
issue 11, 2011) at 18-17, para 18.5.2
16
MEC
for Education, Kwa-Zulu-Natal and Others v Pillay
[2007] ZACC 21
;
2008 (1) SA
474
(CC) at para 40 and
City of Johannesburg and Others v
Mazibuko and Others
2009 (3) SA 592
(SCA) and
Investigating
Directorate: Serious Economic Offences and Others v Hyundai Motor
Distributors (Pty) Ltd and Others: In re Hyundai
Motor Distributors
(Pty) Ltd and Others v Smit NO and Others
[2000] ZACC 12
;
2001 (1) SA 545
(CC).
17
Unreported
Judgment of the WLD Case No 97/24313.
18
Id
at page 9 of the typed pages line 20
et seq
.
19
2010
(4) SA 1
(CC) at para 73.
20
‘
[73]
Having abandoned the challenge, the question arises whether the
applicants are nevertheless entitled to challenge the City’s
Free Basic Water policy that is self-evidently based on the minimum
water standards set by the Minister. The answer to this raises
the
difficult question of the principle of constitutional subsidiarity.
This Court has repeatedly held that where legislation
has been
enacted to give effect to a right, a litigant should rely on that
legislation in order to give effect to the right or
alternatively
challenge the legislation as being inconsistent with the
Constitution.’
21
[2007]
9 BLLR 785
(CC) at para 51.
22
[1999]
10 BLLR 1076 (LC).
23
Id
at paras 20-21