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[2000] ZASCA 48
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Coin Security Group (Pty) Ltd v SA National Union for Security Officers and Others (223/98) [2000] ZASCA 48; 2001 (2) SA 872 (SCA) (29 September 2000)
IN
THE SUPREME COURT OF APPEAL
OF
SOUTH AFRICA
Case
number : 223/98
In
the matter between :
COIN
SECURITY GROUP (PTY) LTD
APPELLANT
and
SA
NATIONAL UNION FOR SECURITY
OFFICERS
AND OTHERS
RESPONDENTS
CORAM
:
F
H GROSSKOPF, OLIVIER, SCOTT, PLEWMAN JJA and FARLAM AJA
HEARD
:
8 SEPTEMBER 2000
REASONS
HANDED DOWN
:
29 SEPTEMBER 2000
REASONS
FOR JUDGMENT
Appeal
dismissed in terms of s 21A of Supreme Court Act 59 of 1959
PLEWMAN
JA:
[1]
In
this appeal counsel were, at the outset of the hearing and for
reasons which will presently be made clear, required to address
argument on the preliminary question of whether the appeal and any
order made thereon would, within the meaning of s 21A of the
Supreme
Court Act 59 of 1959, have any practical effect or result.
After hearing argument on this issue the appeal was dismissed
in
terms of s 21A and appellant was ordered to pay the costs of the
appeal. It was indicated when so ordering that the Court’s
reasons would be handed down later. The reasons follow.
[2]
The
manner in which this question arose is as follows. The
appeal is against an order made on the return day of a rule
nisi
discharging the rule by setting it aside. Appellant is a
company carrying on business in the security industry providing
guard
services and an asset transfer service. The respondents were
originally fifty five persons employed by its asset transfer
division
and the registered trade union to which they belonged. Only
some now remain parties to the litigation. How
this occurred
and why only some are now involved is not relevant to the appeal.
[3]
A
dispute arose between appellant and respondents in January 1997.
This led to a strike. Appellant contended (and contends)
that
this was an unprotected strike. In the course thereof certain
of the respondents unlawfully occupied appellant’s
premises.
There were also incidents of assault and intimidation and a
blockading of the entrance to appellant’s premises.
Appellant thereupon approached the Cape of Good Hope Provincial
Division on an urgent basis and on 16 January 1997 obtained an
order
evicting the persons who had occupied its premises and coupled with
this a rule
nisi
operating as an interim interdict restraining respondents from
committing or perpetrating further acts of the nature referred to
above.
[4]
Effect
was given to the eviction order but the return day of the rule was
extended by various orders (it seems by consent).
The matter
was finally argued in October 1997 and the judgment which is appealed
against was delivered on 31 October 1997 with
the result indicated.
The court’s order is not clear. It must have been
intended to deal only with that part
of the original order which was
included in the rule
nisi
.
The main point taken in opposition to the confirmation of the rule
was a challenge to the jurisdiction of the High Court
on the ground
that in terms of the
Labour Relations Act 66 of 1995
the Labour Court
(unlike its predecessor - the Industrial Court) exercised an
exclusive jurisdiction in matters of this nature.
The objection
was upheld by the court
a
quo.
It
granted leave to appeal to this Court.
[5]
It
is also necessary to refer to certain other events (these being
common cause before this Court). Not only were those
respondents
who had unlawfully occupied appellant’s premises
evicted but on 17 January 1997 all the individual respondents were
formally
dismissed. This is referred to in the replying
affidavits (eventually) filed in the matter. Thereafter the
validity
of these dismissals was challenged in the Labour Court
(re-instatement was sought) and finally held by the Labour Appeal
Court
to have been fair and accordingly legal. (See
Coin
Security Group (Pty) Ltd vs Adams and Others
[2000] 4 BLLR 371
(LAC).) The result is that all the material
disputes between the parties were as a result of the Labour Appeal
Court’s
finding finally resolved.
[6]
On
26 June 2000 this Court addressed a directive to the parties calling
for further heads of argument. These were duly filed.
In
appellant’s additional heads of argument the facts above set
out are recorded. It is also conceded that the order
sought by
appellant in the court
a
quo
will, apart from costs, “no longer have any practical effect
inter
partes
”.
[7]
The
purpose and effect of
s 21A
has been explained in the judgment of
Olivier JA in the case of
Premier,
Provinsie Mpumalanga en’n Ander v Groblersdalse Stadsraad
1998 (2) SA 1136
(SCA). As is there stated the section is a
reformulation of principles previously adopted in our courts in
relation to appeals
involving what were called abstract, academic or
hypothetical questions. The principle is one of longstanding.
In the
case of
Geldenhuys
and Neethling vs Beuthin
1918 AD 426
at 441 (as an example) it was said as follows by Innes
CJ:
“
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.”
This
is a principle which is common also to other systems - where the
doctrine of binding precedent is followed. It has particular
application in courts of appeal. The attitude of the House of
Lords is illustrative of this. What that court has held
is that
it is an essential quality of an appeal (such as may be disposed of
by it) that there should exist between the parties
to the appeal a
matter “in actual controversy which (the court) undertakes to
decide as a living issue”. See
Sun Life Assurance Co
of Canada vs Jervis
[1944] 1 All ER 469
(HL) at 471 A-B.
This phrase accurately states the standpoint of our courts. It
is a principle consistently adopted
by this Court and the other
courts in the Republic.
[8]
Counsel
for appellant (as has been stated) conceded that if the matter were
viewed
inter
partes
the appeal should be dismissed. But he sought to argue that the
approach to the question should not be so narrowly focussed.
In
large measure this argument was based on what was, in my view, a
fruitless analysis of the reported facts in the case of
Natal
Rugby Union vs Gould
[1998] ZASCA 62
;
1999 (1) SA 432
(SCA). However, every case has to be decided on
its own facts. It follows that efforts to compare or equate
facts of
one case to that of another are unlikely to be of
assistance. The section confers a discretion on this Court.
President,
Ordinary Court Martial and Others vs Freedom of Expression Institute
and Others
[1999] ZACC 10
;
1999 (4) SA 682
(CC) at p 687 para [13]. In the light of this
fact a comparison of the type urged upon us is not appropriate.
But there
is something which I must add. Firstly the judgment
in the
Natal
Rugby
case lays down no new or different criteria from those adopted in the
Groblersdal
case. I was party to the decision in the
Natal
Rugby
case. It must, I think, be said that given the factual setting
and, in particular, the uncertainty which arose in the context
of the
peremption argument (see p 443 F - 444 G) the members of the union
had, as a result of the litigation, been left “disturbingly
but
understandably divided” with regard to the meaning and effect
of their constitution. This was felt to be “living
issue”
- sufficiently so for the exercise of the court’s discretion in
the manner in which it was exercised.
To suggest, as counsel
did, that the facts reveal a different approach to that taken in the
Groblersdal
case is not correct.
[9]
It
was also argued that a decision by this Court may resolve possible
future problems in other cases. In the heads of argument
this
is clearly stated, with reference to certain reported decisions, as
follows:
“
The
practical result of the aforesaid judgments is that any employer,
including the appellant, who is confronted by unlawful conduct
by his
employees in the course of a strike, protected or unprotected, cannot
approach the High Court for an interdict to protect
himself against
such conduct, regardless of whether such employer knows or does not
know the purpose his employees are attempting
to achieve by
conducting themselves in such unlawful manner and regardless of what
the relationship between the unlawful conduct
and the strike, if any,
is. Such an employer would, in view of these judgments, almost
certainly have to approach the Labour
Court for the required relief,
but would then be faced with the risk of the employees or their union
contending that the Labour
Court does not have jurisdiction because
the conduct complained of was not conduct in contemplation or in
furtherance of the strike
in which they are participating.”
A
more striking demonstration of a hypothetical situation would be
difficult to find. It could also scarcely be more appositely
answered than by the following extract from the speech of Lord Bridge
of Harwich in the case of
Ainsbury v Millington
[1987] 1 All
ER 929
(HL) at p 930 g -
“
In
the instant case counsel for the appellant has submitted that
Viscount Simon LC’s principle should be confined in its
application to cases where the point of law at issue is peculiar to
the facts of the case or arises on the construction of particular
documents and should not inhibit the House from resolving, even in
the absence of any live issue between the parties, a question
of law
of general importance which, as is said to be the case here,
different decisions of the Court of Appeal have left in doubt.
Assuming without deciding that this is such a case, I cannot see that
it makes any difference, nor can I accept that the principle
as
stated by Viscount Simon LC is to be limited as suggested. In
the
Sun
Life
case the outcome of the appeal, if the House had been prepared to
entertain it, would at least have been of some concern to the
appellant, since the ruling it sought would presumably have affected
its obligations to other policy holders. In the instant
case
neither party can have any interest at all in the outcome of the
appeal. Their joint tenancy of property which was the
subject
matter of the dispute no longer exists. Thus, even if the House
thought that the judge and the Court of Appeal had
been wrong to
decline jurisdiction, there would be no order which could now be made
to give effect to that view. It has always
been a fundamental
feature of our judicial system that the courts decide disputes
between the parties before them; they do not
pronounce on abstract
questions of law when there is no dispute to be resolved.”
[10]
There
is a further feature of
s 21A
to which attention has perhaps
not been pertinently directed in earlier decisions. In terms of
the section the question is
whether “the issues are of such a
nature that the judgment or order sought will have no practical
effect or result”.
The words “judgment or order”
reflect the longstanding concept adopted in our courts that only an
order
is appealable.
Heyman
vs Yorkshire Insurance Co Ltd
1964 (1) SA 487
(A). It is an equally well established rule
that our courts do not lightly (otherwise than in the now often
adopted practice
flowing from the application of
Rule 33(4)
or
instances where further evidence is to be led) decide cases on a
piecemeal basis.
Botha
vs A A Mutual Insurance Association Ltd and Another
1968 (4) SA 485
(A) at 489 F-H. Appellant in its main heads
sought an order dismissing “the respondents’ point in
limine”
and remitting the case to the High Court. The
effect thereof would be that the interdict sought in terms of the
rule
nisi
would then have to be finally decided.
[11]
It
is questionable to say the least that the present case can be said to
fall into the category of cases where remittal is possible.
It
is, however, unnecessary to consider the matter further because it
could not be more clearly demonstrated that the “order
sought”
(whether in this Court or by remittal) would “have no practical
effect or result”. The Court would
be asked to confirm a
rule which interdicted, for the future, acts committed in the course
of an industrial dispute which was finally
resolved between the
parties by the dismissals in 1997 and in which all the perpetrators
have long since gone their separate ways.
[12]
For
the aforegoing reasons the appeal was dismissed. Since the
respondent was not brought before this Court as a willing party
no
cause was seen to depart from the normal rule as to costs which were
accordingly ordered to follow the result with the consequence
that
appellant has to pay them.
C
PLEWMAN JA
CONCUR:
F H
GROSSKOPF JA)
OLIVIER
JA)
SCOTT
JA)
FARLAM
AJA)