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[2012] ZALCCT 57
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ADT Security (Pty) Ltd v National Security And Unqualified Workers Union and Others (CA18/11) [2012] ZALCCT 57 (1 September 2012)
REPUBLIC
OF SOUTH AFRICA
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, CAPE-TOWN
JUDGMENT
Case
no: CA18/11
DATE:
01 SEPTEMBER 2012
Reportable
In
the matter between:
ADT
SECURITY (PTY)
LTD
..................................................................................................
Appellant
NATIONAL
SECURITY & UNQUALIFIED
WORKERS
UNION
.....................................................................................................
First
Respondent
CAPE
TOWN METRO
MMUNICIPALITY
.........................................................
Second
Respondent
INSPECTOR
B. BOTHA
N.O
...................................................................................
Third
Respondent
Heard:
24 May 2012 Delivered: September 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 foil 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 planed “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
DICEDED
[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)(lll) 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 declarator in 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 wishes to march, gather and picket
for
purpose
of handing over a petition to senior management concerning disputes
of
right
and interest that are covered bv 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 of 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
nor 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\ Sidumo & Another v Rustenburg
Platinum Mines Ltd & Others
[1]
and
Chirwa
v Transnet Ltd & Others
[2]
.
As submitted by Counsel for the Appellant, and confirmed in
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”
[3]
and “for more than a century courts have applied the principle
that general legislation, unless specifically indicated, does
not
derogate from special legislation.”
[4]
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.
[5]
Furthermore, only the Constitution itself or a statute that expressly
amends the LRA can take precedence in application to such
labour
matters.
[6]
[19]In
NAPTOSA
& Others v Minister of Education of Western Cape & Others
[7]
,
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.
[8]
Conradie J (as 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.
[9]
[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
Ct/r/ae)
[10]
,
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.
[11]
[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'
3
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
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
.”
[12]
[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
,
[13]
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 overemphasised.
”
[14]
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] 1BCLR 35(CCJ 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 in 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
if 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]
(2007) 12 BLLR 11997
(CC).
[2]
(2008) 2BLLR 97 (CC).
[3]
Supra note 1 at para 94.
[4]
Ibid at para 102.
[5]
Supra note 2 at para 41.
[6]
Ibid at para 50.
[7]
2001 (2) SA 212
(C).
[8]
Ibid at 1231.
[9]
Supra note 8 at 123A-C.
[10]
2006 (2) SA311 (CC).
[11]
Ibid at paras 434-437.
Supra
note 1 at para 10.
[13]
Case number CCT 112/11
(2012) ZACC 13
(as yet unreported).
[14]
Ibid at para 61-69.