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[2012] ZALCCT 4
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City of Cape Town v South African Municipal Workers Union obo Abrahams and Others (CA7/08) [2012] ZALCCT 4 (7 February 2012)
7
IN THE LABOUR APPEAL
COURT OF SOUTH AFRICA, CAPE TOWN
JUDGMENT
Reportable
Case no: CA7/08
In the matter between
CITY OF CAPE TOWN
…................................................................................
Appellant
and
SOUTH AFRICAN
MUNICIPAL
WORKERS UNION
(obo M Abrahams &
106 others)
…...........................................................
Respondent
Heard: 9 November 2010
Delivered: 7 February
2012
Summary: Section
21A(1) of the Supreme Court Act, no 59 of 1959 – Appellant
complying with Labour Court order restraining
and interdicting it
from holding an abridged disciplinary enquiry - Jurisdiction of
Labour Court to intervene in uncompleted disciplinary
process –
subsidiary to main issue but resolved by another LAC decision and
therefore academic – outcome of appeal
no practical effect on
parties in terms of Section 21A(1) – appeal dismissed
JUDGMENT
___________________________________________________________________
MLAMBO JP
[1] This is an appeal
directed at the judgment and order of the Labour Court (Potgieter AJ)
dated 3 February 2009 in which a final
interdict was granted. The
appeal is before us with the leave of this Court.
[2] The background of the
matter can be traced to certain events which occurred on the morning
of 15 August 2007 in the vicinity
of Cape Town. In the early morning
of that day, a large number of metropolitan police officers in the
employ of the appellant congregated
at the Bonteheuwel Metropolitan
Police Depot and drove from there in convoy to the N2 motorway at a
slow speed, alleged to be not
more than 10km per hour en route to the
city. This was around 7am, a peak morning traffic period and the
convoy led to a serious
disruption of the city bound traffic for a
considerable part of that morning. On arrival at the city centre, the
metropolitan police
officers congregated in the vicinity of the Civic
Centre for more than an hour in a bid to hand over a petition to the
Mayoress.
This also caused chaos in the City Centre and adversely
affected businesses in the vicinity.
[3]
The appellant did not take kindly to the conduct of its employees,
which it viewed as a deliberate traffic blockade amounting
to serious
misconduct. With the aid of cameras, it was able to identify 117
employees as having participated in the events of the
morning in
question and decided to institute disciplinary action against them.
It also formed the view that holding 117 disciplinary
hearings was
not feasible and proposed to convene a collective or abridged
hearing
1
.
It justified this view in its answering affidavit in the court
a
quo
as
follows:
‘
The
immense amount of time which would be required to deal with the
evidence and cross-examination of 117 employees, and their witnesses,
would result in a delay of many months, if not years. This not only
offends against the ordinary requirement that disciplinary
steps
should be speedily finalised, but would occasion substantial
financial prejudice to the respondent and its ratepayers, having
regard to the fact that the monthly wages of the 117 suspended
employees amounts to approximately R936 000,00.
Fairness
requires no more than that each employee is afforded a full and fair
opportunity of putting forward reasons showing that
he or she did not
participate in the group misconduct complained of and/or as to why
any collective sanction decided upon should
not be applied to them.
The right to a hearing is not intended to unnecessarily complicate or
protract the taking of disciplinary
steps in the workplace, but is
intended to ensure that the person knows the accusations against him,
and is given an opportunity
of stating his case. If the form of the
enquiry passes muster in this regard, the requirements of fairness
are met.’
[4]
Before initiating the collective disciplinary hearing, the appellant
consulted the respondent, whose members were amongst those
implicated
in proceedings and also spelt out the procedure that it intended to
follow. It also consulted another trade union, the
Independent
Municipal and Allied Trade Union (IMATU), whose members were also
implicated. The respondent was not amenable to the
suggested abridged
disciplinary hearing but IMATU had no problem with the proposed
proceedings. The appellant and IMATU concluded
an agreement in terms
of which an abridged disciplinary hearing would be held. It is not
necessary to set out in finer detail how
the abridged disciplinary
hearing would unfold save to state that it was an abridged process in
the true sense. The appellant’s
evidence would be contained in
an affidavit to which implicated employees had the right to respond
via written representations.
They would then be afforded an
opportunity to make submissions, regarding the charges, to the
chairperson appointed to preside
over those proceedings, who would
thereafter hand down his verdict. The respondent’s opposition
to the proposed abridged
disciplinary enquiry was that it was not in
compliance with the Disciplinary Collective Agreement, a collective
agreement,
2
which was binding
on the parties and which, it asserted, makes provision for the
institution of disciplinary proceedings against
employees.
[5] Despite the
respondent’s opposition, the appellant proceeded with the
abridged disciplinary hearing by issuing a collective
charge sheet
against all implicated employees including the respondent’s
members based on the agreement concluded with IMATU.
The respondent
objected and the resultant impasse drove the respondent to seek
urgent relief in the court
a quo
. The essential relief it
sought was for a declarator that the abridged disciplinary hearing
initiated by the appellant was in breach
of the collective agreement
binding on the parties and that the appellant was to be interdicted
and restrained from proceeding
in that manner. I should also mention
that before the respondent launched the urgent proceedings, it had
referred a dispute to
the South African Local Government Bargaining
Council (the bargaining council), characterising it as a failure by
the employer
(the appellant) to comply with the terms of the
disciplinary collective agreement
i.e
. in instituting the
abridged disciplinary hearing. The respondent had also made
representations to the appellant, IMATU as well
as the chairperson of
the enquiry which were turned down by the latter. It is at that point
that the respondent decided to launch
the urgent proceedings. In its
application, the respondent asserted that the Disciplinary Collective
Agreement was binding between
the parties and that disciplinary
proceedings against its members were to be held in terms thereof.
[6] The Labour Court
granted the respondent the declaratory and interdictory relief it
sought with costs. The court found that the
applicable disciplinary
procedure was the one in the collective agreement and it outlawed the
abridged procedure the appellant
sought to follow. In coming to that
conclusion, the Labour Court stated:
‘
[23]
It follows in my view that in the circumstances of the instant case,
Applicant is entitled to insist that the Respondent comply
with the
national collective agreement and the stipulated procedure for
disciplinary proceedings. Applicant accordingly has established
a
clear right to the relief being sought in these proceedings. In my
view the remaining requirements for a final interdict, namely
an
injury actually committed or reasonably apprehended as well as the
absence of a satisfactory alternative remedy have equally
been
satisfied in the circumstances of this case.’
[7] The appellant
abandoned the abridged disciplinary enquiry and complied with the
Labour Court’s order. It proceeded to
discipline Respondent’s
members in terms of the procedure set out in the collective
agreement. However, the appellant also
applied for leave to appeal.
It made its position very clear that it intended to see through its
appeal against the judgment of
the
Court a quo
and that
proceedings in terms of the collective agreement were not to be
construed as abandoning its appeal. The Court
a quo
dismissed
the application but leave was granted by this Court.
[8] At the time of
hearing the appeal, the appellant had finalised all the disciplinary
enquiries and had dismissed the respondent’s
members found
guilty of participating in the traffic blockade. We were also
informed that the respondent had declared a dispute
arising from
those dismissals. I mention these facts simply to illustrate the
point that this appeal is concerned with the earlier
dispute
regarding the holding of an abridged disciplinary hearing
vis a
vis
the procedure set out in the collective agreement and not the
subsequent dismissals.
[9] The primary issue we
are called upon to consider in this appeal is whether there are
circumstances in which the Labour Court
is competent to intervene, as
it did
in casu
, in uncompleted disciplinary proceedings where
no finding or sanction has yet been made or issued, and if so, what
those circumstances
were. However, the respondent has argued that the
issue pursued on appeal is academic and that the outcome of the
appeal would
have no practical effect between the parties. This is in
light of the fact that the appellant has complied with the court
a
quo’s
order and initiated disciplinary action in terms of
the collective agreement. It is prudent, in my view, to consider this
issue
at the outset.
[10]
Section 21 A (1) and Section 21 A (3) of the Supreme Court Act
3
provide:
‘
(1) When at the hearing
of any civil appeal to the Appellate Division or any Provincial or
Local Division of the Supreme Court the
issues are of such a nature
that the judgment or order sought will have no practical effect or
result, the appeal may be dismissed
on this ground alone.
…
(3) Save under exceptional
circumstances, the question whether the judgment or order would have
no practical effec
t
or
result, is to be determined without reference to consideration of
costs.’
[11]
The
principle implicit in this provision has been applied by our courts
for some time to the effect that courts are there to resolve
real and
existing disputes and not to deal with issues that are academic or to
provide advice on abstract questions. In
Geldenhuys
and Neethling v Beuthin
4
the principle was articulated in the
following terms: ‘
After
all, courts of law exist for the settlement of concrete controversies
and actual infringements of rights, not to pronounce
upon abstract
questions, or to advise upon differing contentions, however
important.
’
In
National
Coalition for Gay and Lesbian Equality v Minister of Home Affairs
5
the Constitutional Court explained
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.
’
.
See also
JT
Publishing (Pty) Ltd and Another v Minister of Safety and Security
and Others,
6
Premier, Provinsie Mpumalanga, en
‘n Ander v Groblersdalse Stadsraad,
7
Rand Water Board v Rotek Industries (Pty) Ltd,
8
Port
Elizabeth
Municipality v Smit,
9
Radio Pretoria v Chairperson of the Independent
Communications Authority of South Africa and Another.
10
-
[12]
I am mindful
of the fact that the Labour Relations Act (LRA)
11
does not have a provision similar to
Section 21 A (1) but that, in my view, is no impediment to the
application of the principle
by this Court or the Labour Court.
Section 167(1) of the LRA provides that this Court is a court of law
and equity. This renders
the court competent to import any rule or
principle of general application such as the one at issue presently
into its own processes.
The Labour Court in
Johannesburg
City Parks v SAMWU and Others
12
mentioned section 21 A (1) in
refusing leave to appeal after it had found that the issue at the
centre of the dispute had ‘become
moot’.
13
That decision, in my view, is
eminently proper.
[13] Returning to the facts of this
case, it is not in dispute that there is no longer any dispute
between the parties arising from
the issue that went to the court
a
quo
. The respondent
is correct therefore in its assertion that the outcome of this appeal
will have no practical effect between the
parties. Counsel for the
appellant argued however that we should nevertheless hear the appeal
as the issues raised were not only
relevant to the parties
inter
se
but also to the
public in general and therefore called for determination by this
Court. Counsel argued that for this reason the
outcome of the appeal
would have meaningful practical effect in general. He argued in the
first place that a definitive statement
from this Court was required
whether the Labour Court has jurisdiction to intervene in uncompleted
disciplinary enquiries. Reference
was made in this regard to Labour
Court decisions on the subject, in particular
Moropane
v Gilbeys Distillers and
Vintners (Pty) Ltd and Another,
14
Mantzaris v University
of Durban-Westville
and
Others
15
and
Booysen
v SAPS and Another.
16
The other issue calling for
the appeal to be entertained, we were told, was that the collective
agreement had been extended for
a further period. Counsel contended
that clarity was required from this Court whether that agreement did
in fact make provision
for collective hearings. Counsel submitted
that without such clarity there was a real prospect of future
applications to the Labour
Court to intervene in uncompleted
disciplinary inquiries in view of this alleged uncertainty in the
collective agreement.
[14]
In the
Port Elizabeth
v
Smit
matter (
supra
) there was on appeal no longer
any dispute or
lis
between the parties. The SCA expressed
skepticism at the notion that an appeal could be entertained where
there was no longer a
lis
between the parties simply because
the matter involved the public interest. In this regard the SCA
stated:
‘
In my respectful view it
seems, however, that this distinction between public law and private
law is founded on considerations of
expedience rather than on
principle. If, as a matter of principle, a court has no power and
therefore no discretion to consider
an appeal where there is no
lis
,
in the sense of a matter in actual controversy
inter
se,
I can see no
reason why this principle should not apply to matters of public law
as well. Conversely, if a court has the discretion
to entertain an
appeal despite the absence of a
lis
,
in the above sense, there seems to be no reason in principle why this
discretion should
not
also extend to litigation between two private individuals as well.’
17
Despite its skepticism, the SCA assumed that it could
entertain the merits of the appeal because of the public interest
argument
but dismissed it in any event in terms of section 21A(1).
The SCA expressed itself as stated above after considering the
following
statement in
R v Secretary of State
for the Home Department, Ex parte Salem:
18
'The discretion to hear
disputes, even in the area of public law, must, however, be exercised
with caution and appeals which are
academic between the parties
should not be heard unless there is a good reason in the public
interest for doing so, as for example
(but only by way of example)
when a discrete point of statutory construction arises which does not
involve detailed consideration
of facts and where a large number of
similar cases exist or are anticipated so that the issue will most
likely need to be resolved
in the near future.'
Compare
Western Cape Education Department and Another v George
19
.
[15]
Assuming that the public interest factor is a relevant consideration
in deciding whether to entertain an appeal where there
is no longer a
lis
between
the parties, I would imagine that there must be exceptional facts and
a good reason justifying this. On the facts of the
case at hand
neither is present. The jurisdiction of the Labour Court to intervene
in uncompleted disciplinary processes, though
indirectly related,
was not
the issue before the court
a
quo
.
The issue, as I have already pointed out, was whether the appellant
could follow the abridged disciplinary process or whether
the process
in the collective agreement held sway. The court
a
quo
resolved
the issue in favour of the procedure in the collective agreement as
contended by the respondent. That order resolved the
true dispute
between the parties and has been complied with.
[16]
In any event, should there have been any doubt about the jurisdiction
of the Labour Court to intervene in uncompleted disciplinary
proceedings such doubt, as fate would have it, was put to rest by
this Court in
Booysen
v The Minister of Safety and Security and Others
20
in a judgment
handed down shortly before this appeal was heard. There this Court
stated:
‘
To
answer the question that was before the court
a
quo
,
the Labour Court has jurisdiction to interdict any unfair conduct
including disciplinary action. However, such an intervention
should
be exercised in exceptional cases. It is not appropriate to set out
the test. It should be left to the discretion of the
Labour Court to
exercise such powers having regard to the facts of each case. Among
the factors to be considered would in my view
be whether failure to
intervene would lead to grave injustice or whether justice might be
attained by other means. The list is
not exhaustive’.
This is the definitive
statement of the law in so far as this issue is concerned and I align
myself with it. The appeal on this
point is therefore clearly
academic and deserves no further attention from us.
[17] The further argument
based on the extension of the collective agreement is also
misconceived. The fact of the matter is that
the collective agreement
is binding on the parties. That being the case, it is to that
collective agreement that any party bound
thereby must resort should
such party have one or other problem regarding the application
thereof. In this case, it is the appellant’s
view that the
collective agreement does not provide for the holding of collective
disciplinary hearings. Assuming that this is
correct it is clear from
the collective agreement that the appellant has remedies. The first
of these is that the appellant is
entitled in terms of clause 16 to
take that matter up with the bargaining council. That clause
provides:
‘
i
Any person or party may refer a dispute about the interpretation or
application of this collective agreement to the Central Council
of
the SALGBC.
’
[18] The other remedy is
that the appellant can approach the bargaining council for exemption
from its provisions. It is common
cause that the appellant did not
invoke any of these remedies when it insisted on holding the abridged
disciplinary hearing. There
is therefore nothing exceptional in the
extension of the collective agreement as the appellant has avenues to
pursue to resolve
whatever problems it may have with the agreement.
The fact that a similar situation may recur frequently in the future
as a result
of this alleged uncertainty in the agreement does not
justify the hearing of this appeal as the collective agreement
contains a
process in terms of which the alleged uncertainty can be
resolved.
[19] The appellant has
raised a number of other arguments attacking the order of the
court
a quo
e.g. whether the respondent had demonstrated that there
were exceptional circumstances justifying intervention, that there
was
good authority supporting the appellant’s approach
regarding the abridged hearing etc. These arguments cannot be
considered
in the context of an appeal that will yield no practical
effect between the parties. The appeal is clearly misconceived and
must
fail.
[20] In the
circumstances, the following order is granted:
[21] The appeal is
dismissed with costs.
____________________
Mlambo JP
Zondi AJA and Molemela
AJA concurred in the judgement of Mlambo JP
APPEARANCES:
FOR THE APPELANT: Adv AC
Oosthuizen SC and Adv T J Golden
Instructed by Herold Gie
Attorneys
FOR THE RESPONDENT: Mr J
Whyte
Instructed by Chealdle
Thompson Haysom
1
The
terms ‘hearing’ and ‘enquiry’ will be used
interchangeably in this judgment.
2
This
collective agreement was concluded on 3 February 2004 by the
Respondent, IMATU and the South African Local Government Association
(SALGA) under the auspices of the South African Local Government
Bargaining Council. The appellant is a member of SALGA..
3
Supreme
Court Act 59 of 1959.
4
1918
AD 426
at 441.
5
2000
(2) SA 1
(CC) at
para
21 footnote 18.
6
[1996] ZACC 23
;
1997
(3) SA 514
(CC) at para17.
7
1998
(2) SA 1136
(SCA) at 1143 A – C.
8
2003
(4) SA 58
(SCA) at paras 12 - 14.
9
2002
(4) SA 241
( SCA) at para 7.
10
[
2004]
4 All SA 16
(SCA) at para 41.
11
Act
66 of 1995 as amended.
12
Case
no J 130/06 delivered on 26 April 2006 at paras 8-9.
13
Johannesburg
City Park
at para 12.
14
(1998)
19 ILJ 635 (LC).
15
(2000)
21 ILJ 1818 (LC)
16
[2008] ZALC 87
;
(2008)
10 BLLR 928
(LC).
17
Port
Elizabeth
at p 10 para 7.
18
[1999]
2 All ER 42
at 47 D-F.
19
1998
(3) SA 77
(SCA) 83 E – F.
20
2011
BLLR (1) 83 (LAC) at para 54.