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[1998] ZASCA 26
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Western Cape Education Department and Another v George (168/96) [1998] ZASCA 26; 1998 (3) SA 77 (SCA); [1998] 2 All SA 623 (A); (1998) 19 ILJ 764 (SCA) (27 March 1998)
REPUBLIC OF SOUTH AFRICA
Case No
168/96
IN THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
In the matter of:
WESTERN CAPE EDUCATION DEPARTMENT
First Appellant
MINISTER OF EDUCATION
Second Appellant
and
KAREN JEAN GEORGE
Respondent
CORAM: Mahomed CJ, Howie, Olivier, Zulman et Streicher JJA
DATE OF HEARING: 19 March 1998
DATE OF DELIVERY: 27 March 1998
JUDGMENT
/HOWIE JA
:. . .
2
HOWIE JA
:
Before October 1995 a legally married woman employed in
the public service whose husband was not permanently medically unfit for
paid employment was not entitled to the public service house owner
allowance. That was laid down by a provision in the Public Service Staff
Code and applied, by way of personnel administrative measures
promulgated by the Minister of Education, to teachers. This piece of
unwarranted discrimination notwithstanding, Karen George (to whom,
although she is no longer a party to the litigation, I shall refer as
"respondent") applied for the allowance. She is, and was at all material
times, a legally married teacher in the employ, in a permanent capacity,
of the two appellants, being the Western Cape Education Department
("the Department") and the Minister. But for her being married she
would have been entitled to the allowance.
The application was submitted in October 1994. The
Department refused it on the ground that she was married. In November
3
1994 respondent took the matter to the Education Labour Relations
Council ("the Council"), declaring a dispute. The Council was
established by the Education Labour Relations Act, 146 of 1993 ("the
ELRA").
At a meeting in December 1994 of the Council's dispute
committee it was agreed between the Department and respondent that she should approach the Public Service Commission with the request
that it recommend a departure from the discriminatory provision in question on
the ground that hers was an exceptional case. This the Commission was
empowered by the Public Service Staff Code to do. Respondent made
the suggested approach but the Commission declined to assist. Its
written response reads thus:
"1. The Commission considered the case of Mrs George, but
indicated that it does not see its way clear to furnish a
recommendation for a deviation from the existing prescripts.
2. Pertaining to married women's participation in the Home
4
Owner Allowance Scheme in general, it has to be pointed
out that the relevant scheme is an existing service benefit and as such any amendment(s) to it can only be effected if;
after negotiations in this regard, agreement is reached
thereon between the employer and employee organisations.
During recent negotiations the State as employer declared its willingness to put aside R0,4 billion as part of a salary and
service benefit improvement package to address gender
disparities with regard to the Home Owner Allowance
Scheme with effect from 1 April 1995. Thus far agreement
on the package could not be reached.
3. In the circumstances, married women's participation in the
Home Owner Allowance Scheme is sub judice being a
matter of mutual interest that can only be dealt with by
means of negotiations."
The negotiations, I should mention, were between the State and the South
African Democratic Teachers'
Union
, of which respondent was a member.
In March 1995 the Council wrote a letter to respondent
recording that as the dispute had not been resolved the Council had, in
5
terms of its constitution, to be deemed to have failed to settle it.
Accordingly it was open to respondent, so she was informed in the letter,
to refer the dispute for determination by the
Industrial Court
in terms of
s 18 of the E L R A. That she did. The proceedings were opposed by
appellants but the Industrial Court found in her favour. The order it made
was as follows:
"1. The respondents' refusal to accord to the applicant the
benefits of the house owner allowance scheme on the
grounds that she is a married woman whose husband is not
medically unfit to obtain paid employment is held to
constitute an unfair labour practice.
2.
Subject to paragraph 4(a) hereof the respondents are jointly
and severally directed forthwith to accord to the applicant
the house owner allowance benefits to which she would be
entitled had she been an unmarried female or a married or an
unmarried male.
3.
Subject to paragraph 4(b) hereof, the respondents are
furthermore jointly and severally directed to pay to the
applicant a compensatory amount equivalent to the benefit
6
which she would have received, had she been a recipient of
the house owner allowance from the date that the Public
Service Commission declined to recommend a deviation
from existing prescripts, namely 30 January 1995 until the date that routine monthly payment of the benefit commences
pursuant to paragraph 2 hereof.
4.
(a) Nothing in paragraph 2 hereof shall preclude the
respondents from procuring compliance with that
paragraph by way of a reconsideration or renewed
consideration of the applicant's request to be treated
as an exceptional case in terms of paragraph 8 of Chapter DAX of the Public Service Staff Code.
(b) Once it is ascertained, the amount payable in terms of
paragraph 3 hereof is to be deposited to the credit of
the applicant's home loan account with the financial
institution which holds as security for such account, the first mortgage bond registered over the immovable property, being Erf 7918,
Brackenfell, and situate at
44 Palm Close, Northpine, Cape.
5.
The respondents are jointly and severally directed to pay the
applicant's costs of the determination proceedings, on the
Supreme Court scale, and for the purpose of functions
performed by Mr Dodson which would in that context have
been the province of counsel, costs shall be taxed as if junior
counsel of middle standing had been briefed.
6.
Should any obstacle in the implementation of the terms of
7
this determination be encountered, which either party
considers would have the effect of frustrating its purport or
intent, then such party shall be entitled to set the matter
down for further hearing on reasonable notice to the other/s,
with a view to such variation of the terms of the determination as may be reasonable."
That order was made on 13 October 1995. Appellants then
appealed to the
Labour Appeal Court
. Subject to a presently irrelevant
alteration to the
Industrial Court
's order, the
Labour Appeal Court
dismissed the appeal but granted appellants leave to appeal to this Court.
Subsequent to the grant of leave appellants and respondent
concluded a settlement agreement reading as follows (references to the
"abovementioned Court" being references to this Court):
"The parties hereto have agreed to settle their dispute on the
following basis, as they hereby do:
1. Respondent will, on signature of this agreement, instruct her
attorneys to file an appropriate notice withdrawing her
opposition to the Appellants' appeal and advising the
8
abovementioned Court that she will abide its decision.
2.
The Appellants will, on signature of this agreement, instruct
their attorneys to withdraw their appeal in respect of the
costs orders handed down in Respondent's favour in both
the
Industrial Court
and the
Labour Appeal Court
.
3.
In the event that the abovementioned Court upholds the
decision of the
Labour Appeal Court
, the Respondent
waives her claim to the compensatory amount which the
Appellants were ordered to pay her.
4.
The Appellants will pay the Respondent's party-and-party
costs, as taxed or agreed, in respect of the proceedings in the
Industrial Court
, the
Labour Appeal Court
and the
abovementioned Court. In respect of the abovementioned
Court, the costs to which the Respondent will be entitled
shall not exceed R10 000.00 (exclusive of Value Added
Tax)/'
The respective withdrawal notices in compliance with the terms of
paragraphs 1 and 2 of the settlement agreement were duly filed and
appellants pursued their intention to appeal on such issue or issues as
remained.
9
Two days before the hearing of this matter counsel for
appellant was requested to prepare argument on the question in limine
whether the appeal was not liable to dismissal in terms of s 21A of the
Supreme Court Act, 59 of 1959.
The relevant subsections of that section provide as follows:
"(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 effect or result, is to
be determined without reference to consideration of costs."
In supplementary written argument in support of the
contention that the appeal should proceed in the ordinary course,
appellants' counsel drew attention to the salient contents of an agreement
10
reached by the parties to the Council. The agreement was published in
Government Notice R1635 contained in Government Gazette 16778 on
27 October 1995, that is to say, shortly after the
Industrial Court
's order.
Pertinent to the present matter was the provision in the agreement of a
resolution that with effect from 1 October 1995 the personnel
administrative measures embodying the discriminatory provision in
question were to be amended and the provision removed. We were not
informed that the amendment had in fact been effected but the argument
in limin.e proceeded on the clear understanding that this was indeed so.
Accordingly, the upshot of the Council resolution and the
pre-appeal agreement reached by appellants and the respondent was, with
one exception, to resolve any possible dispute arising from the orders
made by the two courts below. More particularly, as from 1 October
1995 respondent became entitled to the housing allowance, thereby
achieving the sole purpose with which she declared a dispute and
11
launched the litigation in the Erst place. The outstanding issue which
remained for possible adjudication by this Court was therefore the finding
in para 1 of the Industrial Court's order, namely, that, in effect, refusal of
the allowance on the ground of the discriminatory provision was an unfair
labour practice.
The circumstances sketched above could not but move
counsel for appellant to the realistic, and ready, concession at the outset
of his argument at the hearing that the setting aside of para 1 of the
Industrial Court's order would have no practical effect or result as
between appellants and respondent. He therefore settled on the following
submission as the be-all and end-all of his argument. Even if no practical
effect or result was to be achieved as between the parties, a practical result could be achieved in other respects. He suggested two.
The first was that appellants would be freed from the stigma of having been found
to have perpetrated an unfair labour practice. The second was the
12
opportunity open to this Court to lay down the principle - if I understood
counsel's formulation correctly - that where the subject matter of an
alleged unfair labour practice (not involved in or related to an alleged
unfair dismissal) is the focus of negotiations between an employer and the
union to which the complainant employee belongs (here, the negotiations
referred to in the Public Service Commission's letter quoted above), it is
legally incompetent, during the currency of such negotiations, for the
employee to take the unfair labour practice allegation to the Industrial
Court or for that Court to pronounce upon it.
I shall assume, without deciding, that the practical effect or
result referred to in s 21A is not restricted to the position inter partes and
that the expression is wide enough to include a practical effect or result
in some other respect.
As regards the first suggested practical result - that
appellants would be found not to have committed an unfair labour practice
13
- nothing on the record or said in argument tends to show that the mere
existence of the
Industrial Court
's finding per se has or has had a
deleterious effect on the State's or the Department's ability to attract or
retain staff. If appellants have indeed harboured any unexpressed fears
in that regard, and if indeed that finding engendered employee resentment,
the State's readiness to eradicate discrimination and the eventual
agreement removing the discriminatory provision concerned must surely
have altered the situation entirely. In fact, events since the Industrial
Court's order have completely overtaken and overshadowed the impact
of that order. Any employee in respondent's position would nowadays
no doubt say "What if an unfair labour practice was found? The position
is quite different now - equality has been achieved". To litigate with the
motive to clear one's name is understandable. However, nothing
demonstrates in this case that a finding that there was no unfair labour
practice, whilst it might constitute subjective solatium for appellants,
14
would bring about any objectively discernible practical advantages for
them or anyone else whether in the labour relations sphere or at all.
As to the submission that a judgment could be given
providing a practical guideline for the solution of similar legal questions
in future, the following considerations point the other way. The
legislation applicable to this case, the E L R A, was repealed by the
Labour Relations Act, 66 of 1995
, which came into force in November
1996. This statute has vastly restructured labour relations law. It is not
necessary for the purposes of this judgment to summarise the innovations
and changes introduced. Suffice it to say, by way of example, that,
unlike the E L R A, the new statute contains no definition of unfair labour
practices (except in transitional provisions contained in Schedule 7) and
no express right of any employee, like that conferred by
s 5(1)(f)
of the
E L R A, to be protected against such defined unfair labour practices.
That alleged right was the cornerstone of respondent's case in the courts
15
below. Quite apart from whether those courts decided the case correctly,
her resort to litigation was rights-based and independent of what her union
was seeking to achieve in negotiations with appellants. The position
would not be comparable under the new statute. Ostensibly similar future
problems would have to be decided under that statute. And on their own
facts, what is more.
On the further assumption that despite the absence of any
issue between the parties circumstances might conceivably create a
practical need for this Court to express its view on a particular point of law - perhaps on a matter of wide public interest or urgency
or to resolve
conflicting High Court decisions - no such need exists here.
Finally, it is desirable that any judgment of this Court be
die product of thorough consideration of i a forensically tested argument
from both sides on questions that are necessary for the decision of the
case. Any judgment on the issue formulated by appellants' counsel
16
would be obiter and based on argument heard from only one side.
The cumulative consequence of all these factors is that no
practical effect or result can be achieved in this case. No other reasons were suggested why the appeal should not be dismissed in
terms of
s 21
A.
This is therefore a proper case in which to order such dismissal.
As to costs, all questions on that subject were resolved by
what I have called the pre-appeal settlement agreement.
It remains to reiterate the warning expressed in the matter of
Premier van die Province Mpumalanga en 'n Ander v Stadsraad van
Groblersdal (case 103/96 in this Court, judgment delivered on 25 March
1998) that practitioners keep the provisions of
s 21A
in mind not only at
the stage of an application for leave to appeal but also thereafter.
The appeal is dismissed.
C T HOWIE MAHOMED CJ) OLIVIER JA) ZULMAN JA) concur STREICHER JA)