Police and Prisons Civil Rights Union v South African Correctional Services Workers' Union and Others (CCT152/17) [2018] ZACC 24; [2018] 11 BLLR 1035 (CC); 2018 (11) BCLR 1411 (CC); (2018) 39 ILJ 2646 (CC); 2019 (1) SA 73 (CC) (23 August 2018)

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[2018] ZACC 24
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Police and Prisons Civil Rights Union v South African Correctional Services Workers' Union and Others (CCT152/17) [2018] ZACC 24; [2018] 11 BLLR 1035 (CC); 2018 (11) BCLR 1411 (CC); (2018) 39 ILJ 2646 (CC); 2019 (1) SA 73 (CC) (23 August 2018)

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Heads of arguments

CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case CCT
152/17
In the matter
between:
POLICE
AND PRISONS CIVIL RIGHTS UNION
Applicant
and
SOUTH
AFRICAN CORRECTIONAL SERVICES WORKERS’ UNION
First
Respondent
MINISTER
OF CORRECTIONAL SERVICES N.O.
Second
Respondent
LGP
LEDWABA N.O.
Third
Respondent
GENERAL
PUBLIC SERVICE SECTORAL BARGAINING COUNCIL
Fourth
Respondent
Neutral citation:
Police and Prisons Civil Rights Union
v
South African Correctional Services Workers’ Union and Others
[2018] ZACC 24
Coram:
Zondo
DCJ, Cachalia AJ, Dlodlo AJ, Froneman J, Goliath AJ, Jafta J,
Khampepe J, Madlanga J, and Petse AJ.
Judgments:
Cachalia AJ (minority): [1] to [61]
Jafta J (majority):
[62] to [112]
Zondo DCJ
(concurring): [113] to [149]
Heard on:
15
February 2018
Decided on:
23 August 2018
Summary:
Labour
Relations Act 66 of 1995
— interpretation of
sections 18
and
20
— collective agreements — thresholds of
representativeness
collective
bargaining by minority unions —
sections 12
,
13
, and
15
rights
— mootness — interests of justice — interpretation
of
Bader Bop
ORDER
On
appeal from the Labour Appeal Court, the following order is made:
1.
The
application for leave to appeal is granted.
2.
The
appeal is dismissed.
3.
There is no order as to costs.
JUDGMENT
CACHALIA AJ
(Froneman J concurring):
Introduction
[1]
This application for leave to appeal concerns a dispute
between two rival unions over the right of a minority union to
acquire organisational
rights from an employer where the majority
union has a pre-existing collective agreement with the employer
setting a threshold
of representativeness for admission to a
departmental bargaining council, which the minority union does not
meet.
[2]
The majority union – the applicant – is the Police
and Prisons Civil Rights Union (POPCRU).  The minority union,

which is a breakaway union from POPCRU, is the South African
Correctional Services Workers’ Union (SACOSWU).  It is
the
first respondent.
[3]
The second respondent is the Minister of Correctional
Services.  The third respondent is LGP Ledwaba N.O. (arbitrator)
in his
official capacity as an arbitrator of the General Public
Service Sectoral Bargaining Council (GPSSBC) who made the arbitration
award, which POPCRU took on review.  The fourth respondent is
the GPSSBC.  The second to fourth respondents are not
participating
in these proceedings.
[4]
POPCRU seeks to prevent SACOSWU from obtaining a foothold in
the Department of Correctional Services (DCS).  It thus contends

that its threshold agreement with the DCS, in terms of
section 18
of
the
Labour Relations Act (LRA
),
[1]
prohibits the latter from bargaining with and entering into a
collective agreement granting organisational rights to SACOSWU.
[5]
SACOSWU, on the other hand, submits that
section 18
merely
authorises employers and majority unions, such as POPCRU, to
establish a threshold for the automatic acquisition of the

organisational rights referred to there.  SACOSWU argues that
section 18
does not – as
section 20
makes clear – bar
minority unions from bargaining for and obtaining the self-same
organisational rights from an employer.
As this matter involves
the interpretation of the provisions of the LRA, this Court has
jurisdiction.
Legislative
framework
[6]
It is apposite to set out the key provisions of the LRA that
bear on the outcome of this dispute.  These are
sections 18
and
20
both of which are to be found in Part A of Chapter III.  This
Chapter deals with the acquisition of organisational rights by
trade
unions.
Section 18
gives a majority trade union the right to
conclude a collective agreement establishing a threshold of
representativeness for the
organisational rights referred to in
sections 12
,
13
and
15
, which deal with trade union access to the
workplace, stop-order facilities and recognition of shop-stewards,
respectively.
[2]
[7]
Section 18
provides:
“(1) An employer and a registered trade union whose members are
a majority of the employees employed by that employer in
a workplace,
or the parties to a bargaining council, may conclude a collective
agreement establishing a threshold of representativeness
required in
respect of one or more of the organisational rights referred to in
sections 12
,
13
and
15
.
(2) A collective agreement concluded in terms of subsection (1) is
not binding unless the threshold of representativeness in the

collective agreement are applied equally to any registered trade
union seeking any of the organisational rights referred to in
that
subsection.”
[8]
On the other hand,
section 20
says emphatically that:
“
Nothing in this Part precludes the
conclusion of a collective agreement that regulates organisational
rights.”
[9]
SACOSWU contends that, on a proper
interpretation of
section 20
,
section 18
cannot be read to prevent
minority unions that do not satisfy an agreed threshold from
acquiring organisational rights.  To
do so, the argument
continues, would effectively negate the use of the words “nothing
in this Part” at the beginning
of the section.
[10]
On the other hand, POPCRU insists
that
section 18
must be read with
section 23(1)(d)
of the
LRA,
[3]
which provides that a collective agreement –
which a threshold agreement contemplated in
section 18
is – is
binding on all employees in the workforce, including those who are
not members of the majority union.  This
interpretation accords
with the principle of majoritarianism, which promotes orderly
collective bargaining.  This means that
SACOSWU is bound by the
threshold agreement.  Understood thus, so it is contended,
minority unions such as SACOSWU are limited
from acquiring rights
identified in
sections 12
,
13
and
15
of the LRA.
Preliminary
arguments
[11]
However, before these submissions are considered, we have to
determine a preliminary point.  SACOSWU contends that this
dispute
is moot and not in the interests of justice to adjudicate
because there is no live dispute between the parties since the
threshold
agreement that is the subject of the present dispute no
longer exists.
[12]
At the hearing of this application on 15 February 2018, POPCRU
objected to us entertaining this issue because, it said, that it had

insufficient time to respond to the factual allegations raised by
SACOSWU.  It also objected to the introduction of what it

referred to as “new evidence” regarding the issue of
mootness.  As a result, the Court directed the parties to
file
affidavits and make further submissions on two issues regarding
mootness.  The first was whether the Departmental Bargaining

Chamber Resolution 7 of 2001, which is the threshold agreement that
is the subject of the present dispute (2001 threshold agreement)
had
been ratified, and the second, was whether the 2001 threshold
agreement was still in force following Resolution  1  of

2013, which repealed and replaced all previous organisational
rights agreements.  POPCRU responded on 2 March 2018 and

SACOSWU, a week later.  In the light of POPCRU having adduced
further facts on this issue, I do not understand it to persist
with
its objection to the “new evidence”.
[13]
POPCRU contends that, even if this Court were to find that the
2001 threshold agreement no longer exists, the issue in dispute in

this appeal still raises an important question of law as to whether
an employer and a minority trade union that does not meet the

threshold of representativeness, may enter into a collective
agreement granting the union organisational rights, even where there

exists a threshold agreement with a majority union.  It is, says
POPCRU, therefore in the interests of justice to decide the
question.
Background
[14]
On 8 November 2001, the 2001 threshold agreement was concluded
between the DCS and the recognised trade unions in the DCS.  POPCRU

was among the recognised unions.  The 2001 threshold agreement
set the threshold for admission of a single registered union
to the
Department of Correctional Service Council at 9 000 members.  It
also permitted employees to be represented at disciplinary
and
grievance proceedings by a fellow employee or a representative of a
recognised trade union.
[15]
Subsequently, on 4 December 2003, Resolution 9 of 2003
disestablished the Departmental and Provincial Bargaining Councils
and established
the provincial co ordinating chambers of the
Public Service Coordinating Bargaining Council (PSCBC).
[16]
On 22 April 2004, Resolution 3 of 2004 came into force for
purposes of establishing provincial and national departmental
chambers
of the GPSSBC.  According to this agreement, existing
bargaining structures would cease to exist either at the launch of
the
newly established chambers or by 30 June 2004.  Furthermore,
all existing collective agreements were required to be ratified

within a month of the establishment of the new chambers.
[17]
In POPCRU’s response to this Court’s directions
referred to earlier, it attached an unsigned affidavit from the
General
Secretary of the GPSSBC confirming that all collective
agreements concluded in the previous council structure were ratified
by
the GPSSBC on 22 July 2005.  The evidence is not entirely
satisfactory as the resolutions proving this were not provided, but

instead archived letters were relied upon.  However, I am
prepared to accept, in favour of POPCRU, that the 2001 threshold

agreement was ratified.
[18]
In addition to the 2001 threshold agreement, on 23 February
2006, Resolution 3 of 2006 was adopted.  This
agreement
regulated the relations between the DCS and trade unions
admitted to the Departmental Bargaining Chamber and it allowed for
trade
unions admitted to the PSCBC or complying with the threshold of
representativeness in the DCS to have access to stop order
facilities.
[19]
So, when SACOSWU was registered as a trade union on 31 August
2009, the 2001 threshold agreement and Resolution 3 of 2006 governed

the relationship between trade unions and the DCS.
[20]
Upon registration, SACOSWU approached the DCS seeking to be
granted certain organisational rights despite not having the minimum

membership dictated by the 2001 threshold agreement.
[21]
On 5 November 2010, the DCS acceded to SACOSWU’s request
by allowing it to represent its members during grievance and
disciplinary
proceedings.  It also granted SACOSWU facilities to
deduct membership fees for a limited period of six months.  The
parties
therefore understood that SACOSWU was given
section 12
rights (access to premises to serve members’ interests at
grievance and disciplinary proceedings) and
section 13
rights
(stop-order facilities).
[4]
[22]
I pause to mention that in this Court there was no dispute
between the parties as to whether the right of a representative union

to serve its members’ interests as contemplated in
section
12(1)
includes the right of access to an employer’s premises
for the purpose of representing its members in grievance and
disciplinary
proceedings.  The application for leave to appeal
was argued on this basis.  However, the second judgment
considers that
the Labour Appeal Court incorrectly dealt with this as
a
section 12
right, whereas it is in truth a
section 14
right.
[5]
I revert to this issue later.
[23]
POPCRU was aggrieved by the DCS having granted these
organisational rights to SACOSWU because, it maintained, by so doing
the DCS
had contravened the 2001 threshold agreement and
Resolution 3 of 2006.  As a result, on 3 May 2011, it referred
this
dispute to the GPSSBC for conciliation maintaining that SACOSWU
was not entitled to exercise any of the organisational rights
contemplated
under
sections 12
,
13
,
14
,
15
or
16
.
[6]
After conciliation, the dispute remained unresolved and was
then referred to arbitration.
[24]
On 16 February 2012, the arbitrator found that the 2001
threshold agreement did not preclude SACOSWU from concluding a
collective
agreement with the DCS.  However, as at that date,
SACOSWU no longer required the DCS to deduct subscriptions on its
behalf
as the six-month period had since lapsed.  This issue had
therefore become moot.  The only issue still in dispute
concerned
SACOSWU’s section 12 right of access to the DCS’s
premises for the purpose of representing its members in grievance
and
disciplinary proceedings, which was to be heard in the Labour Court
on 18 July 2013.
[25]
On 4 February 2013, by Resolution 1 of 2013, another
organisational rights agreement came into force.  It replaced
all previous
organisational rights agreements that fell within the
scope of the GPSSBC.  The 2001 threshold agreement and
Resolution 3
of 2006 had then ceased to exist.  This meant that
there was no longer any
section 18
agreement barring SACOSWU from
acquiring organisational rights.
[26]
It is not clear why the existence of Resolution 1 of 2013 and
the fact that the 2001 threshold agreement had lapsed was not brought

to the attention of the Labour Court when the matter was heard
on 18 July 2013, five months later.  It should have been.
[27]
Nevertheless, the Labour Court adjudicated the dispute on
review and, on 5 September 2013, delivered its judgment setting
aside
the arbitration award.  It concluded that the 2001
threshold agreement precluded the DCS and SACOSWU from concluding a
collective
agreement on organisational rights.  SACOSWU was
granted leave to appeal to the Labour Appeal Court on 26 November
2015.
[28]
In the interim, on 7 July 2014, another organisational rights
agreement – Resolution 3 of 2014 – was concluded.  It

replaced Resolution 1 of 2013 and also repealed all earlier
collective agreements.
[29]
On 1 January 2015,
section 21(8C)
of the LRA came into
operation.  This section was introduced through an amendment to
the LRA.  It provides:
“[A] commissioner may in an arbitration conducted in terms of
subsection (7) grant the rights referred to in
sections 12
,
13
or
15
to a registered trade union, or two or more registered trade unions
acting jointly, that does not meet the thresholds of
representativeness
established by a collective agreement in terms of
section 18
, if—
(a)
all parties to the collective agreement have been given an
opportunity to participate in the arbitration proceedings; and
(b)
the trade union, or trade unions acting jointly, represent a
significant interest, or a substantial number of employees, in the
workplace
.” (Emphasis added.)
[30]
It is apparent that this amendment substantially changed the
statutory regime applicable to threshold agreements since the dispute

between the parties began some four years earlier.  The
amendment bears directly on the mootness issue traversed later in

this judgment.
[31]
On 13 May 2015, soon after
section 21(8C)
came into force,
SACOSWU referred another dispute it had with POPCRU regarding its
acquisition of organisational rights to the
Commission for
Conciliation, Mediation and Arbitration (CCMA).  SACOSWU sought
to vary the agreement it had with the DCS for
access to the premises
after working hours to hold meetings during the lunch break.  POPCRU,
once again, opposed this.
The Public Servants Association,
PSCBC and GPSSBC were joined as respondents.  SACOSWU contended
that it had a “significant
interest or a substantial number”
of employees in the workplace as contemplated by
section 21(8C)
of the LRA and was therefore entitled to organisational rights in
terms of
sections 12
(access to premises) and 15 (trade union
activities).
[32]
In its response, POPCRU contended that because the 2001
threshold agreement had been revoked,
section 21(8C)
did not apply to
the dispute.  An arbitrator delivered his award on 22 March
2017.  Upholding POPCRU’s contention,
he found that “the
section 18
agreement [that] POPCRU had relied upon in litigation
before the courts had been revoked”.  The arbitrator’s
reference
to “litigation before the courts” was to the
judgment of the Labour Court and the pending appeal before the
Labour Appeal Court
in the current dispute.
[33]
The Labour Appeal Court heard the appeal on 15 November 2016.
It noted that
section 12
rights (access to premises) remained
the only live issue in dispute as the agreement between the DCS and
SACOSWU regarding
section 13
rights (access to stop-order facilities)
had lapsed.  However, it acceded to SACOSWU’s request to
determine this issue
as well.  It is, however, troubling that
neither party appears to have drawn the Court’s attention to
the fact that
the 2001 threshold agreement, which was at the centre
of their dispute, had ceased to exist.  Had they done so, which
they
were under a duty to, the Court would have had to consider
whether the appeal was moot.  It therefore adjudicated the
dispute
apparently unaware of this fact.
[34]
On 31 May 2017, the Labour Appeal Court reversed the Labour
Court’s decision.  It held that the 2001 threshold
agreement
did not bar SACOSWU from obtaining organisational rights
from the DCS.  Its order read as follows:
“The collective agreement entered into with POPCRU in terms of
section 18(1)
of the LRA establishing representation thresholds for
the exercise of organisational rights under
section 12
,
section 13
and
section 15
in the workplace of the Department of Correctional
Services, does not prevent the Department from entering into a valid
and enforceable
collective agreement with SACOSWU in terms of
section
20
to permit the union to represent its members at internal
disciplinary and grievance proceedings in the workplace.”
[7]
[35]
It appears, however, that the Labour Appeal Court
inadvertently omitted a reference to the
section 13
(access to
stop-order facilities) dispute in its order, but nothing turns on
this.  However, the second judgment considers
that the order
erroneously suggests that collective agreements may be concluded “in
terms of
section 20
”, which, in its view, requires
correction.  I disagree with this view and shall deal with this
issue shortly.
[36]
POPCRU now applies for leave to appeal the Labour Appeal
Court’s order to this Court.
Mootness
[37]
It is indisputable that the 2001 threshold agreement no longer
exists.  However, Resolution 3 of 2014, referred to earlier,

does not bar the conclusion of future threshold agreements.
Indeed, Resolution 2 of 2017, which came into operation on 27 June

2017, now establishes a new threshold of representativeness that
registered trade unions must meet in order to exercise organisational

rights in the public service.  This means that if the new
threshold agreement applies, SACOSWU will have to satisfy the
requirements
of
section 21(8C)
in order to secure organisational
rights from the DCS, as it had attempted to do unsuccessfully before
this Resolution was passed.
[8]
[38]
Against this background, the issue as to whether the dispute
is moot and should be entertained at all must be considered.  The

issue in this application, as I mentioned at the outset, is whether
the 2001 threshold agreement prevented the DCS from concluding
an
organisational rights agreement with SACOSWU.  The question of
whether minority trade unions may acquire organisational
rights was
dealt with by this Court in
Bader Bop
[9]
and both the Labour Court and the Labour Appeal Court therefore had
to consider the effect of
Bader Bop
in determining the dispute
between POPCRU and SACOSWU.
[39]
The Labour Court distinguished
Bader Bop.
[10]
The Labour Appeal Court, on the other hand, considered itself bound
by it.
[11]
POPCRU contended in this Court that the case was indeed
distinguishable because the issue in
Bader Bop
did not involve
a threshold agreement.
[40]
Bader Bop
concerned an attempt by a trade union, the
National Union of Metalworkers of South Africa (NUMSA) – which
represented only
26% of the workforce – to acquire
organisational rights conferred by
sections 12
to
15
of the LRA.
The rights identified by
sections 12
,
13
and
15
may be conferred upon
“sufficiently representative” trade unions, whereas those
under
sections 14
and
16
, only upon majority unions.  The
employer was willing to afford NUMSA access to its premises and to
stop-order facilities
in terms of
sections 12
and
13
, respectively,
but was not prepared to recognise its shop-stewards in terms of
section 14
, or to bargain collectively because it was not a majority
union.  NUMSA contested the employer’s view.
[41]
The Court held that the fact that a trade union did not meet
the requisite threshold membership levels did not bar it from using

the ordinary processes of collective bargaining and industrial action
to persuade an employer to grant it organisational facilities
such as
access to the workplace, stop-order facilities and recognition of
their shop stewards.
[12]
It bears mentioning that in the course of its reasoning in
Bader
Bop
, this Court considered a suggestion by Du Plessis AJA,
writing for the majority in the Labour Appeal Court, to the effect
that
an interpretation permitting a non representative trade
union to acquire organisational rights in the face of a threshold
agreement would render
section 18
nugatory.
[13]
But, the Court concluded, the more plausible interpretation was one
that avoided limiting the constitutional right to bargain

collectively and to embark on industrial action to secure it.  It
accordingly upheld NUMSA’s appeal.
[14]
[42]
It is unnecessary to decide whether the fact that no threshold
agreement was in issue in
Bader Bop
means this Court’s
ratio decidendi
(rationale for a decision) does not apply to
the facts of this case.  What is clear, however, is that in the
absence of a
threshold agreement, SACOSWU’s entitlement to
acquire organisational rights through a collective agreement with the
DCS is
governed by
Bader Bop
.  This means that the fact
that SACOSWU is a minority union does not preclude it from acquiring
organisational rights from
DCS.  I now turn to decide the issue
of mootness.
[43]
This Court’s jurisprudence regarding mootness is well
settled.  As a starting point, this Court will not adjudicate an

appeal if it no longer presents an existing or live controversy.
[15]
This is because this Court will generally refrain from giving
advisory opinions on legal questions, no matter how interesting,

which are academic and have no immediate practical effect or
result.
[16]
Courts exist to determine concrete legal disputes and their scarce
resources should not be frittered away entertaining abstract

propositions of law.
[44]
But mootness is not an absolute bar to the justiciability of
an issue.
[17]
The Court may entertain an appeal, even if moot, where the interests
of justice so require.
[18]
In making this determination the Court exercises a judicial
discretion based upon a number of factors.  These include,
but
are not limited to, considering whether any order may have some
practical effect, and if so its nature or importance to the
parties
or to others.
[45]
In my view, the appeal is moot and the interests of justice do
not require that it be entertained for the reasons that follow.
[46]
This dispute became moot as soon as the 2001 threshold
agreement was revoked more than five years ago, in February 2013.
Since
then, other than the dispute with POPCRU that was
referred to the CCMA regarding SACOSWU’s attempt to vary its
agreement
with the DCS to allow it lunch time access to the premises,
there has been no live dispute between the parties.
[47]
The parties have been aware for a considerable period of time
before this appeal that the 2001 threshold agreement was no longer
in
force.  POPCRU must have been aware of this at least since
February 2013, but failed to inform the Labour Court, contrary

to its duty.  SACOSWU says it only became aware that the 2001
threshold agreement had been revoked when POPCRU raised the
issue
before the CCMA in the dispute concerning the applicability of
section 21(8C)
of the LRA in 2015.  It is, however, beyond
cavilling that both parties failed in their duty to inform the
Labour Appeal
Court of the true state of affairs, as I mentioned
earlier.  It ill-behoves POPCRU to now accuse SACOSWU of
opportunism in
raising the mootness issue.  So, even if the
interpretation of
section 18
has some residual relevance to the
parties in this dispute – which I do not believe there is –
it is not in the interests
of justice to entertain it because this
would merely condone their conduct.
[48]
Should the dispute regarding the reach of threshold agreements
concluded in terms of
section 18
arise in the future, as it no doubt
will, the new statutory regime governing threshold agreements, which
now includes
section 21(8)
(and particularly
sections 21(8A)
and
21
(8C)) will apply.  In fact, there is currently precisely such
a dispute regarding the application of
section 21(8C)
pending before
the Labour Court.
[19]
The regime that existed at the time the 2001 threshold
agreement came into force, when
Bader Bop
was decided in 2003,
is now completely different.  So, any future dispute regarding
the binding effect of
section 18
threshold agreements in the face of
attempts by minority unions to acquire organisational rights will
have to be determined having
regard to the new statutory regime.  In
this regard, it must be noted that
section 21(8D)
provides that
section 21(8C)
applies to any dispute that is referred to the CCMA
after the commencement of the Labour Relations Amendment Act 2014,
irrespective
of whether the collective agreement contemplated in
subsection (8C) was concluded prior to such commencement date.  This
means
that the new regime applies even if the collective agreement
was concluded before section 21(8C) came into operation.
[49]
Regarding the second judgment’s conclusion that section
21(8C) has no bearing on the meaning of sections 18 and 20 in the
future and their possible effect on disputes concerning threshold
agreements, one must pose the question: what would have happened
if a
similar dispute to the present had arisen after section 21(8C) was
enacted?  The answer is self-evident.  The resolution
of
the dispute would have taken an entirely different course.  The
issue before the arbitrator would have been whether SACOSWU,
which
does not meet the threshold of representativeness established by the
threshold agreement, represented a “significant
interest or
substantial number of employees in the workplace” as
contemplated in section 21(8C), and not whether the threshold

agreement contemplated in section 18 precluded it from obtaining
organisational rights.  As I have pointed out earlier, this
is
exactly what happened earlier when SACOSWU referred a dispute
regarding organisational rights to the CCMA in May 2015.
It is
therefore clear, with respect, that it is not only inappropriate to
interpret sections 18 and 20 (without regard to section
21(8C)) but
also not in the interests of justice to do so because this will have
no practical effect on a future dispute of this
nature.
[50]
The second judgment, however, advances a further ground to
support its conclusion that the interests of justice require that the

appeal be heard: two apparent “errors” in the judgment of
the Labour Appeal Court, which, it believes, would be binding,
unless
undone by this Court.  It says that this “tips the scales
in favour of reaching the merits”.  The
first “error”,
it says, is that the Labour Appeal Court incorrectly held that the
right to represent employees at disciplinary
and grievance
proceedings flows from section 12, whereas the right is explicitly
recognised in section 14(4).
[20]
The second is that the order of the Labour Appeal Court suggests,
incorrectly, that section 20 permits employers and employees
to enter
into collective agreements whereas section 20 simply states that
nothing in Part A of Chapter III precludes the conclusion
of a
collective agreement that regulates organisational rights.
[51]
As regards the first “error”, that section 14(4)
and not section 12 confers a right of an employee to be represented

at grievance and disciplinary proceedings by a union, it must be
pointed out, as already mentioned, that the application for leave
in
this Court was argued on the basis that the right to be represented
at grievance and disciplinary proceedings was a section
12 right.
In other words this was not an issue between the parties and no
argument was advanced to the contrary.
[52]
Furthermore, the true issue in this case was whether a
threshold agreement concluded in terms of section 18 precluded the
acquisition
of organisational rights by a minority union.  The
ratio of the judgment deals with this issue.  What was said
about
whether section 12(1) includes within its ambit the right to
represent members at disciplinary and grievance proceedings is
arguably
obiter, and not binding on any other court.
[53]
The Labour Appeal Court’s judgment approaches the issue
on the basis that SACOSWU’s contention that the right in issue

was a section 14 right and not a section 12 right was
misplaced.
[21]
Section 14 deals with the rights of
majority
unions –
not minority unions – and section 14(4)(a), explicitly with the
right of shop stewards of majority trade unions
to represent
employees in grievance and disciplinary proceedings.  Section
12, on the other hand, deals with trade union access
to the work
place by “sufficiently representative” unions.
[54]
The issue here is whether section 12(1), which permits access
by shop stewards of sufficiently representative unions to enter the

employers’ premises “in order to recruit members or
communicate with members or otherwise serve their interests”

includes within its ambit the right to represent members in
disciplinary and grievance proceedings, and if so whether this right

also extends to minority unions, such as SACOSWU, that have secured
this right through collective bargaining.
[55]
Given the wide import of the language employed in section
12(1) it may well be that there is no reason not to include the right
of shop stewards of sufficiently representative unions to gain access
to the workplace in order to represent their members in grievance
and
disciplinary proceedings.
[22]
If this is so, then SACOSWU’s right is also a section 12 right,
as the Labour Appeal Court held.  However, the
second judgment’s
view that because this right is explicitly identified as a section 14
right and therefore cannot
be a section 12 right, is also plausible.
[56]
However, the issue was not argued in this Court, which places
it at a disadvantage in trying to decide it.  In
Langeberg
Municipality
, this Court said that one of the factors to be taken
into account in determining whether it is in the interests of justice
to decide
an issue is the “fullness or otherwise of the
argument advanced”.
[23]
It cannot be in the interests of justice to decide this issue
where the answer is far from evident.
[57]
But, if the second judgment is correct that section 12(1)
cannot be interpreted to include the right to represent members in
disciplinary
and grievance proceedings, this would be a further
ground on which not to entertain the appeal.  This is because
the only
persistent ground that gave rise to the dispute between the
parties was the right of access under section 12.  If section 12

does not apply to the dispute, then section 18, which concerns
threshold for representativeness in respect of only sections 12,

13 and 15 rights (not section 14 rights) is not applicable to this
dispute at all; all the more reason not to entertain the appeal.
[58]
Regarding the second “error” of the Labour Appeal
Court alluded to in the second judgment, this, I think, misconstrues

the meaning of the order.  The order is set out at paragraph 34
above.  Properly understood, and read in the context
of the
judgment, it does not mean that collective agreements may be
concluded in terms of section 20, as the second judgment says
it
does.  It simply means that nothing in section 20 prevents
SACOSWU from entering into a collective agreement to represent
its
members in grievance and disciplinary proceedings despite POPCRU’s
threshold agreement with the DCS having been concluded
in terms of
section 18(1).  This is also clear from the judgment of the
Labour Appeal Court.
[24]
There was therefore no error in the order of the Labour Appeal Court
that requires correction.
In any event, I
cannot see how a mistake in an order of a court can give rise to a
binding incorrect interpretation of section 20
when there is no
suggestion in the body of the judgment that the section was
incorrectly interpreted.
[59]
It follows that, far from tipping
the scales in favour of reaching the merits, the first “error”
in the judgment of
the Labour Appeal Court – if it is one –
is an argument against entertaining the merits of the appeal.
And the
second “error” turns out not to be one.
Conclusion
[60]
In view of the conclusion to which I have come on the mootness
question, this Court should not decide the merits of the dispute.

I would therefore dismiss the application for leave to appeal.
Ordinarily this Court makes no costs order regarding disputes
over
interpretations of provision of the LRA.  In this case, I may
have considered departing from the ordinary rule in light
of the
failure by the parties to inform the Court a quo that the appeal had
become moot once the 2001 threshold agreement was revoked.

However, as both parties failed in their duty to draw the attention
of the Court a quo to this fact, I think each should bear its
own
costs.
[61]
In the result I would not grant
leave to appeal.
JAFTA J (Zondo DCJ,
Dlodlo AJ, Goliath AJ, Khampepe J, Madlanga J, and Petse AJ
concurring):
[62]
I have had the benefit of reading the judgment prepared by my
colleague, Cachalia AJ (first judgment).  While I accept that

the appeal is moot, I do not agree that the application for leave to
appeal must be dismissed solely on that ground.  It is
true that
this Court does exercise its discretion in favour of determining a
moot appeal if the interests of justice so require.
[63]
The question that arises at the outset is whether it is in the
interests of justice to adjudicate the merits of the present appeal.

Here lies the divergence between us.  The first judgment
concludes that it is not in the interests of justice to reach the

merits because the parties were aware that the relevant collective
agreement between POPCRU and the employer was no longer in force
at
the time the dispute was presented to the Labour Court for
adjudication and both parties failed to bring this to the attention

of that Court.
[25]
Entertaining the appeal would, the first judgment holds, amount to
condoning the parties’ failure to inform the Labour
Court of
the true state of affairs.  If a similar dispute arises in the
future, it will be determined having regard to section
21 (8A) and
(8C) of the LRA.
[64]
I disagree.  As is evident from the first judgment, the
real dispute between the parties centred around the interpretation
each party gave to sections 18 and 20.
[26]
POPCRU contended that section 18 of the LRA precluded the employer
from concluding a collective agreement that was contrary
to an
existing agreement between the employer and a majority union, in
relation to organisational rights.  For its part, SACOSWU
argued
that, properly construed, section 18 read with section 20 of the LRA
does not prohibit an employer from engaging in collective
bargaining
and concluding an agreement with a minority union which does not meet
the threshold qualification for organisational
rights set in a
collective agreement between an employer and a majority union.
[65]
Therefore, at the heart of the dispute lies the correct
meaning of sections 18 and 20.  That meaning may be determined
only
through the interpretation of those provisions.  Section 21
plays a very limited role in that exercise.  Sections 18 and
20
must be construed with reference to their own language and should be
given the meaning they had from the date the LRA came into
operation
on 11 November 1996.  That meaning could not and was not changed
by the addition of section 21(8A) to (8C) to the
LRA, which was
introduced in 2014.  Instead, section 21 regulates the exercise
of all rights conferred by Part A of Chapter
III.  Subsections
(8A) to (8C) constitute a new regulatory framework governing how the
rights in Part A may be exercised.
[66]
In particular, section 21(8C) mandates an arbitrator to grant
organisational rights provided for in sections 12, 13 and 15 to a
registered trade union “that does not meet thresholds of
representativeness established by a collective agreement in terms
of
section 18” if certain conditions are met.  These include
the fact that the union concerned must represent a significant

interest or a substantial number of employees.
[67]
The arbitrator’s power to grant rights has nothing to do
with the interpretation exercise.  Moreover, the meaning to be

assigned to sections 18 and 20 is not restricted to the present
dispute which has become moot.  It will extend to all cases

where these provisions find application.  Therefore, I disagree
with the conclusion implicitly reached in the first judgment
that the
determination of the merits here will have no practical effect on
future disputes between other parties.
[27]
[68]
It is apparent from paragraph 49, that the first judgment
holds that since the promulgation of section 21(8C), a minority trade
union which fails to meet the thresholds of representativeness
established by a collective agreement between the employer and a

majority union, may have to apply for permission from an arbitrator,
in order to exercise organisational rights.  This is
advanced as
a reason that makes it unnecessary to interpret sections 18 and 20.
The conclusion that if the present dispute
had arisen after section
21(8C) came into operation, SACOSWU would have applied for
organisational rights from an arbitrator, is
based on an assumption
that it was obliged to do so.  This is not correct.  As
mentioned, section 21(8C) introduced a
further option in terms of
which trade unions may acquire organisational rights contained in
sections 12, 13 and 15.
[69]
But the section 21(8C) option is available only to trade
unions which meet the “significant interest or substantial
number
of employees in the workplace” requirements.  A
minority union that has no significant interest or substantial number

of employees may not be granted organisational rights by an
arbitrator.  The interpretation of sections 18 and 20 would
particularly
be of importance to minority trade unions which do not
meet the requirements of section 21(8C).  Such unions would like
to
know if they could exercise their constitutional right to
collective bargaining with a view to concluding an agreement that
entitles
them to organisational rights, if the employer is a party to
a section 18 collective agreement with a majority union.
[70]
The interpretation of sections 18 and 20 would also benefit
minority unions which prefer to negotiate with the employer rather
than
acquiring organisational rights from an arbitrator.  There
is nothing in the LRA which obliges minority unions to follow the

section 21(8C) route to acquisition of organisational rights.
Therefore, it is necessary for this Court to determine whether

section 18 has the effect of prohibiting a minority union from
engaging in collective bargaining with an employer where a collective

agreement that determines a threshold of representativeness exists
between such employer and a majority union.
[71]
Section 23 of the Constitution guarantees a number of rights,
including the right to form or join a trade union of one’s
choice
and the right of every trade union to engage in collective
bargaining.  These rights cannot be limited by a private
agreement
between an employer and a majority union.  But they
may be limited by a law of general application provided it meets the
requirements
of section 36 of the Constitution.  This provision
emphatically declares that rights in the Bill of Rights may be
limited
only
in terms of a law of general application.
[28]
[72]
To conclude that the 2001 collective agreement precluded
SACOSWU from bargaining with the employer here would constitute an
impermissible
limitation of SACOSWU’s right to engage in
collective bargaining unless the prohibition is authorised by section
18.
The meaning given to this section will have a practical
effect on all future disputes involving agreements that declare
thresholds
of representativeness.  This illustrates that a
decision of this Court on the merits will be of great benefit to
workers,
trade unions and employers in the future.  This is
because section 18 of the LRA continues to apply to their
relationships
and the Act was enacted to give effect to rights in
section 23 of the Constitution.
[73]
In
Langeberg Municipality
this Court formulated the
test for adjudicating a moot appeal in these terms:
“This Court has a discretion to decide issues on appeal even if
they no longer present existing or live controversies.
That
discretion must be exercised according to what the interests of
justice require.  A prerequisite for the exercise of
the
discretion is that any order which this Court may make will have some
practical effect either on the parties or on others.
Other
factors that may be relevant will include the nature and extent of
the practical effect that any possible order might have,
the
importance of the issue, its complexity, and the fullness or
otherwise of the argument advanced.”
[29]
[74]
As mentioned, the interpretation to be given to sections 18
and 20 would clarify how these provisions should be implemented in
the
future.  I do not agree that the coming into operation of
section 21(8C) in particular has altered how sections 18 and 20 must

be read and understood.  In addition, factors like the
importance of the issue involved in the merits of the case; its
complexity
and the fullness of the argument advanced on the
interpretation of the relevant provisions, weigh heavily in favour of
adjudicating
the merits despite the mootness.
[30]
[75]
Another factor that tips the scale in favour of reaching the
merits is the apparent errors in the judgment of the Labour Appeal
Court.  For example, the order issued by that Court declares
that the collective agreement between POPCRU and the employer
did not
prevent SACOSWU and the employer from concluding a similar agreement
“
in terms of section 20 to permit SACOSWU to represent its
members at internal disciplinary and grievance proceedings
”.
[31]
[76]
Justification for the order issued by the Labour Appeal Court
is found in paragraphs 39 to 44 of its judgment.  A number of

statements are made in those paragraphs which appear to reflect an
incorrect position in law.  For instance, in paragraph
40 the
Labour Appeal Court held:
“It follows that the section 18(1) agreement was correctly
interpreted by the arbitrator to permit the conclusion of the

agreement with SACOSWU allowing the union section 12 rights, in
order to serve members’ interests by representing employees
in
disciplinary and grievance proceedings.  Having found this to be
so, it is not necessary to deal with SACOSWU’s contention
that
section 14 provided a right to such representation, save to state
that the union’s reliance on that provision was misplaced
in
the circumstances of this matter.”
[77]
This statement reveals a number of legal issues as seen by the
Labour Appeal Court.  First, that in the Court’s opinion,

the question whether SACOSWU was entitled to bargain with the
employer in light of an existing collective agreement between the

employer and POPCRU was correctly answered by interpreting the terms
of the latter agreement.  In other words, the determination
of
that important constitutional issue depended solely on the terms of
the agreement between POPCRU and the employer.  I have

demonstrated already that this approach is at variance with the
requirements of section 36 of the Constitution.  The prohibition

would be constitutionally permissible only if it was authorised by
section 18 of the Act.
[78]
Second, the statement suggests that the right to represent
employees at disciplinary and grievance proceedings flows from
section
12.  This may not be accurate.  This right is
explicitly conferred by section 14.
[32]
On the other hand, section 12(1) confers the right to enter the
employer’s premises for purposes of recruiting
members;
communicating with existing ones and “otherwise serve members’
interests”.
[79]
The order issued by the Labour Appeal Court suggests that the
collective agreement that existed between POPCRU and the employer did

not preclude SACOSWU and the employer from concluding “a valid
and enforceable collective agreement” in terms of section
20
“to permit the union to represent its members at disciplinary
and grievance proceedings in the workplace”.
This order
is based on the conclusion reached by the Labour Appeal Court that a
collective agreement pertaining to organisational
rights in sections
12, 13 and 15, may be concluded by a minority union and an employer
under section 20 of the LRA.  In paragraph
39 the Labour Appeal
Court expressed itself in these terms:
“
[S]ince the threshold agreement does not
provide a bar
to the conclusion of a
section 20 collective agreement
with
the minority union regarding sections 12, 13 or 15 organisational
rights, the existence of the threshold does not distinguish
the
matter from
Bader Bop.
”
[80]
When this statement is read together with the order issued by
the Labour Appeal Court, there can be no doubt that the Court held

that collective agreements may be concluded under section 20.
This is plainly incorrect.  Section 20 of the LRA does
not
confer rights.  Rather, it makes plain that there is nothing in
Part A of Chapter III which precludes the conclusion of
a collective
agreement that regulates organisational rights.
[81]
Courts have entertained moot appeals in order to correct wrong
statements of law in the judgments against which an appeal was
brought.
[33]
In
AAA Investments
this Court held:
“The issues may well be moot.  Nonetheless, there are two
conflicting judgments on these issues and, if we do not consider
this
aspect of the case, the judgment of the SCA with all its implications
for future regulation would remain binding.  In
all the
circumstances, I would hold that these issues are so crucial to
important aspects of government as well as the rights contained
in
the Bill of Rights that it is in the interests of justice to grant
leave to appeal.  Neither the judgment of the Supreme Court

of Appeal nor that of the High Court can be said to be
unassailable.
[34]
[82]
For all these reasons, I conclude that it is in the interests
of justice to determine the merits of this appeal, despite mootness.
Merits
[83]
Two issues arise.  The first is the proper interpretation
of section 18 read with section 20 of the LRA.  The second is

the correctness of certain legal conclusions reached in the judgment
of the Labour Appeal Court.  But before construing the
relevant
provisions, it is necessary to recall the right approach to
interpreting legislation that impacts on the rights guaranteed
by the
Bill of Rights.
Proper approach
[84]
Section 3 of the LRA declares that its provisions must be
construed purposively and in compliance with the Constitution and the
public international law obligations of the Republic.
[35]
In this context compliance with the Constitution includes the
discharge of the obligation imposed by section 39(2) which
obliges,
in mandatory terms, every court to promote the objects of the Bill of
Rights when interpreting legislation.
[85]
Section 39(2) has received attention in many decisions of this
Court.  For present purposes a reference to one of them would

suffice.  In
Makate
we said:
“The objects of the Bill of Rights are promoted by, where the
provision is capable of more than one meaning, adopting a meaning

that does not limit a right in the Bill of Rights.  If the
provision is not only capable of a construction that avoids limiting

rights in the Bill of Rights but also bears a meaning that promotes
those rights, the court is obliged to prefer the latter meaning.”
[36]
[86]
Implicit in this statement is the fact that at the outset of
interpreting a legislative provision, a court must determine whether

that provision implicates rights in the Bill of Rights.  For if
it does, then the approach stipulated in section 39(2) must
be
followed.  As mentioned, here the provisions to be interpreted
affect guaranteed rights like every worker’s right
to form or
join a trade union and the right to participate in the activities and
programmes of the trade union.  Section 18
also implicates the
right of a trade union to engage in collective bargaining.
[87]
The right to engage in collective bargaining lies at the heart
of industrial relations.  This right is conferred on trade
unions
and employers.
[37]
This is the only right which may be exercised simultaneously by
protagonists in a labour dispute.  This is so because
the
bargaining takes place between the trade union and the employer.
Participation of each side in the collective bargaining
constitutes
the exercise of the right.  Absent the right, the objects of the
LRA such as labour peace, social justice and
the advancement of
economic development may not be achieved.
[88]
Notably, on the workers’ side, the right is conferred on
a trade union.  This makes membership of a trade union the
gateway
to collective bargaining for workers.  Therefore, the
right of every worker to form and join a trade union is critically
linked
to the right to engage in collective bargaining.
[89]
The right to form and join a trade union guarantees freedom of
association for workers.  Its importance is acknowledged not

only in the Constitution but also in international law.
[38]
With regard to international law on freedom of association at the
workplace, this Court observed in
Bader Bop
:
“An important principle of freedom of association is enshrined
in Article 2 of the Convention on Freedom of Association and

Protection of the Right to Organise which states: ‘[w]orkers
and employers, without distinction whatsoever, shall have the
right
to establish and, subject only to the rules of the organisation
concerned, to join organisations of their own choosing without

previous authorisation.’  Both committees have considered
this provision to capture an important aspect of freedom of

association in that it affords workers and employers an option to
choose the particular organisation they wish to join.  Although

both committees have accepted that this does not mean that trade
union pluralism is mandatory, they have held that a majoritarian

system will not be incompatible with freedom of association, as long
as minority unions are allowed to exist, to organise members,
to
represent members in relation to individual grievances and to seek to
challenge majority unions from time to time.”
[39]
[90]
Significantly, it emerges from this statement that the
principle of majoritarianism which is embraced by our labour law is
not incompatible
with the principle of freedom of association which
finds expression in the right to form and join a union of one’s
choice.
Workers form and join trade unions for protecting their
rights and advancing their interests at the workplace.  Any
statutory
provision that prevents a trade union from bargaining on
behalf of its members or forbidding it from representing them in
disciplinary
and grievance proceedings would limit rights in the Bill
of Rights.  Forcing workers who belong to one trade union to be
represented
by a rival union at disciplinary hearings seriously
undermines their right to freedom of association described earlier.
[91]
In
Bader Bop
it was stated:
“Of importance to this case in the ILO jurisprudence described
is firstly the principle that freedom of association is ordinarily

interpreted to afford unions the right to recruit members and to
represent those members at least in individual workplace grievances;

and secondly, the principle that unions should have the right to
strike to enforce collective bargaining demands.  The first

principle is closely related to the principle of freedom of
association entrenched in section 18 of our Constitution, which is

given specific content in the right to form and join a trade union
entrenched in section 23(2)(a), and the right of trade unions
to
organise in section 23(4)(b).  These rights will be impaired
where workers are not permitted to have their union represent
them in
workplace disciplinary and grievance matters, but are required to be
represented by a rival union that they have chosen
not to join.”
[40]
[92]
As it cannot be disputed that section 18 of the LRA implicates
organisational rights of import, it goes without saying that in
construing
its provisions, we must avoid a meaning that limits those
rights.  If the section is reasonably capable of a meaning that
promotes the rights concerned, it must be preferred above other
meanings.
Meaning of section 18
[93]
Section 18 reads:
“(1) An employer and a registered trade union whose members are
a majority of the employees employed by that employer in
a workplace,
or the parties to a bargaining council, may conclude a collective
agreement establishing a threshold of representativeness
required in
respect of one or more of the organisational rights referred to in
sections 12, 13 and 15.
(2) A collective agreement concluded in terms of subsection (1) is
not binding unless the thresholds of representativeness in the

collective agreement are applied equally to any registered trade
union seeking any of the organisational rights referred to in
that
subsection.”
[94]
In unambiguous terms the section confers, on an employer and a
majority union, the right to establish thresholds of
representativeness.
This right may be exercised by means of
concluding a collective agreement in terms of which a threshold is
agreed.  This threshold
relates to organisational rights
mentioned in sections 12, 13 and 15 only.  For a collective
agreement so concluded to be
binding, it must apply equally to all
registered trade unions.
[95]
The text of the section limits its content and scope to the
right to determine a threshold in terms of a collective agreement.

Section 18 does not authorise the employer and a majority union to
determine which constitutional rights other unions that are
not
parties to the collective agreement, may exercise.  The section
does not refer at all to the right to engage in collective

bargaining.  Nor does it mention freedom of association, which
enables every worker to form or join a trade union of their
own
choice.
[96]
It is not surprising that section 18 does not prohibit
collective bargaining between an employer and a minority union where
there
is a collective agreement between that employer and the
majority trade union.  Such a prohibition would be inconsistent
with
the Constitution and international law.  Over and above
that, the prohibition if it were to exist, would be meaningless.

This is because section 20 declares that nothing in Part A of Chapter
III, where section 18 is located, precludes the conclusion
of a
collective agreement that regulates organisational rights.
[97]
In
Bader Bop
this Court rejected a narrow reading of
section 20.  O’Regan J said:
“Section 20 of the Act which forms part of Chapter III, Part A
confirms this as follows: ‘Nothing in this Part precludes
the
conclusion of a collective agreement that regulates organisational
rights.’  Both Zondo JP and Du Plessis AJA were
of the
view that this provision did not mean that minority unions could
conclude collective agreements affording organisational
rights but is
a ‘clarificatory provision’ which provides that
agreements between representative unions (within the
definition of
the section) and employers may ‘regulate’ rights.
Such a reading of section 20 is a narrow one
and not one suggested by
the ordinary language of the text which states that nothing in Part A
of Chapter III prevents collective
agreements being concluded.
Any other provision of the chapter which suggests the contrary is to
be read subject to this
provision.  In an Act committed to
freedom of association and the promotion of orderly collective
bargaining, which requires
that employers and unions should have
freedom to conclude agreements on all matters of mutual interest, a
narrow reading of section
20 is an inappropriate one.  Moreover,
the rights conferred by Part A of Chapter III may in any event be
regulated by the
collective agreements expressly contemplated by
section 21.  In my view, a better reading is to see section 20
as an express
confirmation of the internationally recognised rights
of minority unions to seek to gain access to the workplace, the
recognition
of their shop-stewards as well as other organisational
facilities through the techniques of collective bargaining.”
[41]
[98]
It is important to note that this Court rejected the
proposition that minority unions were precluded from concluding
collective
agreements on organisational rights where there was an
existing agreement between the employer and a majority union.
The
Court preferred a wider reading of section 20, which was
supported by the text and was also consonant with the LRA’s
commitment
to freedom of association and the promotion of orderly
collective bargaining.  It was held, in addition, that the wider
reading
was in line with “the internationally recognised rights
of minority unions to seek to gain access to the workplace . . .
through the techniques of collective bargaining”.
[99]
In an attempt to avoid the conclusion that section 20
precludes an interpretation that says a minority union is prohibited
from
concluding a collective agreement with an employer who is a
party to a section 18 agreement with a majority union, POPCRU
contended
that section 20 does not apply because the latter agreement
becomes binding in terms of section 23.  Section 23, the
argument
continued, is not located in the part referred to in section
20.
[100]
There is no merit in this submission.  The collective
agreement that determines a threshold of representativeness is not
authorised
by section 23.  It is section 18 that confers upon
the employer and the majority union the right to conclude such an
agreement.
If section 20, which is dominant, allows the
conclusion of a collective agreement between an employer and a
minority union where
a section 18 agreement exists, it cannot be said
that section 23 precludes the conclusion of that agreement.
Section 23 does
not define the scope and content of section 18 or a
collective agreement concluded in terms of the latter.
Moreover, section
23 does not create a prohibition of any kind.
All that it does is to identify parties bound by a collective
agreement.
[101]
Therefore, neither section 18 nor section 23 precludes the
conclusion of a collective agreement between an employer and a
minority
union where a section 18 agreement between the same employer
and a majority union exists.
[102]
When properly construed Chapter III of the LRA reveals that a
minority union may access organisational rights in sections 12, 13

and 15 in a number of ways.  First, it may acquire those rights
if it meets the threshold set in the collective agreement
between the
majority union and the employer.  In that event, a minority
union does not have to bargain before exercising the
rights in
question.  Second, such union may bargain and conclude a
collective agreement with an employer, in terms of which
it would be
permitted to exercise the relevant rights.  Third, a minority
union may refer the question whether it should exercise
those rights
to arbitration in terms of section 21(8C) of the LRA.  If
the union meets the conditions stipulated in that
section, the
arbitrator may grant it organisational rights in the relevant
provisions.
[103]
The interpretation of section 18 advanced by POPCRU here is
not supported by the text of the provision.  But not only that.

POPCRU’s construction would effectively deny minority unions
the right to engage in collective bargaining.  This right
is
conferred on every trade union by the Constitution, regardless of
whether the union has a majority or minority status.
In
SATAWU
this Court pronounced:
“Constitutional rights conferred without express limitation
should not be cut down by reading implicit limitations into them,
and
when legislative provisions limit or intrude upon those rights they
should be interpreted in a manner least restrictive of
the right if
the text is reasonably capable of bearing that meaning.”
[42]
[104]
Furthermore, POPCRU’s interpretation of the relevant
provisions is at variance with the constitutional canon of
construction
mentioned earlier.  That interpretation is also
dissonant with international law and in conflict with section 3 of
the LRA
which expressly demands that the provisions of the Act be
construed in compliance with the Constitution and public
international
law.  It follows that POPCRU’s
interpretation must be rejected.  Properly construed the
relevant provisions do
not prohibit the conclusion of a collective
agreement with a minority union where the employer has signed an
agreement that sets
a threshold of representativeness with a majority
union.
Labour Appeal
Court Judgment
[105]
Although the outcome reached by the Labour Appeal Court may
not be altered, the pillars on which that outcome rests cannot be
left
intact.  This is because that judgment constitutes a
binding judicial precedent.  The inaccuracies in the judgment of

the Labour Appeal Court must be corrected.  The first error
relates to whether it is the collective agreement between the

employer and a majority union which may be construed as prohibiting
agreements with minority unions.  In a number of paragraphs,
the
Labour Appeal Court suggests that this is the position.
[43]
[106]
As mentioned earlier, the rights guaranteed by the Bill of
Rights may be limited by a law of general application only.
Section
23(5) of the Constitution expressly states that the right to
engage in collective bargaining may be limited by legislation only
if
such legislation meets the requirements of section 36.
Therefore, an agreement that seeks to limit the right to collective

bargaining would be inconsistent with the Constitution and invalid.
Such agreement would have no force and effect in law.
The focus
of the Labour Appeal Court should have been on the interpretation of
sections 18 and 20 of the LRA.
[107]
The other error in the judgment of that Court is the
suggestion that a union’s right to represent employees in
grievance and
disciplinary proceedings is sourced from section 12 of
the LRA.  Section 12 gives unions the right of access to the
workplace
to exercise rights specified in that section.  These
include the right to recruit members, hold meetings and communicate
with
members.
[108]
The right to represent employees at grievance and disciplinary
proceedings is explicitly conferred on a majority union by section

14(4) of the LRA.  Importantly, that right does not fall within
the scope of a section 18 collective agreement.  Therefore,

acquisition of the right to represent members at disciplinary
proceedings may not depend on meeting a threshold of
representativeness.
Whereas all rights conferred by section 12
are subject to such thresholds.
[109]
In
Bader Bop
this Court observed that the rights in
sections 12, 13 and 15 are conferred on sufficiently representative
unions and the rights
in sections 14 and 16 are bestowed on majority
unions.  It was stated:
“Part A of Chapter III of the Act expressly confers enforceable
organisational rights on certain unions – unions that
are
either sufficiently representative (sections 12, 13 and 15) or
majority unions (section[s] 14 and 16).  These are enforceable

rights and the mechanism for their enforcement is also provided for
in Part A.  That mechanism is conciliation followed by

arbitration.  Unusually, in the overall scheme of the Act,
unions and employers are given a choice between arbitration and

industrial action should conciliation fail.  There is nothing in
Part A of Chapter III, however, which expressly states that
unions
which admit that they do not meet the requisite threshold membership
levels are prevented from using the ordinary processes
of collective
bargaining and industrial action to persuade employers to grant them
organisational facilities such as access to
the workplace, stop-order
facilities and recognition of shop stewards.  These are matters
which are clearly of ‘mutual
interest’ to employers and
unions and as such matters capable of forming the subject matter of
collective agreements and
capable of being referred to the CCMA for
conciliation, the condition precedent to protected strike
action.”
[44]
[110]
However, I must hasten to mention that the conferment of
rights on specified unions does not mean that other unions may not
bargain
with employers for entitlement to exercise any of the
organisational rights in Part A of Chapter III.  This is
apparent from
the decision of this Court in
Bader Bop
.
[45]
[111]
Lastly, the order granted by the Labour Appeal Court suggests
that SACOSWU and the employer could enter into an agreement in terms

of section 20, for the union to represent its members at the
grievance and disciplinary proceedings.  Section 20 does not

regulate agreements for the right to represent employees at
disciplinary hearings.  The section merely confirms the absence

of a prohibition.  It is not a source of power to conclude
collective agreements.
Order
[112]
The following order is made:
1. Leave to appeal is granted
2. The appeal is dismissed.
3. There is no order as to costs.
ZONDO DCJ:
Introduction
[113]
I have read Cachalia AJ’s judgment (first judgment) and
Jafta J’s judgment (second judgment) in this matter.
While
I agree with the conclusion in both judgments that this matter
is moot, I do not agree with the first judgment that it is not in
the
interests of justice that leave to appeal be granted.  Instead,
I agree with the conclusion in the second judgment that
it is in the
interests of justice to entertain this matter and to grant leave to
appeal.  I do so for the reasons given in
the second judgment.
I write separately to deal with the merits of the appeal from a
somewhat different angle.
Constitutional
and statutory background
[114]
Section 23(2)(c) of the Constitution confers on every worker
the right to strike.  Section 23(5) reads:
“(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 legislation may limit a right in

this Chapter, the limitation must comply with section 36(1).”
[115]
Section 18(1) and (2) of the LRA provides:
“(1) An employer and a registered trade union whose members are
a majority of the employees employed by that employer in
a workplace,
or the parties to a bargaining council, may conclude a collective
agreement establishing a threshold of representativeness
required in
respect of one or more of the organisational rights referred to in
sections 12, 13 and 15.
(2) A collective agreement concluded in terms of subsection (1) is
not binding unless the thresholds of representativeness in the

collective agreement are applied equally to any registered trade
union seeking any of the organisational rights referred to in
that
subsection.”
Section 18(1) makes
it legally possible for a majority trade union and an employer in a
workplace to conclude a collective agreement
that sets a threshold
that any trade union would need to meet in order to enjoy the
organisational rights in the workplace that
are provided for in
sections 12, 13 and 15 of the LRA.
[46]
[116]
Section 23(1) renders a section 18(1) collective agreement
binding even on employees who are not members of the registered trade

union that is party to a section 18(1) collective agreement if
the requirements of section 23(1)(d) are satisfied.  Section

23(1) reads:
“(1) A collective agreement binds—
(a) the parties to the collective agreement;
(b) each party to the collective agreement and the members of every
other party to the collective agreement, in so far as the provisions

are applicable between them;
(c) the members of a registered trade union and the employers who are
members of a registered employers' organisation that are
party to the
collective agreement if the collective agreement regulates—
(i) terms and conditions of employment; or
(ii) the conduct of the employers in relation to their employees or
the conduct of the employees in relation to their employers;
(d)
employees
who are not members of the registered trade
union or trade unions party to the agreement if—
(i)
the employees are identified in the agreement;
(ii)
the agreement expressly binds the employees;
and
(iii)
that trade union or those trade unions have as
their members the majority of employees employed by the employer in
the workplace.
”
[117]
It is also appropriate to quote section 23(2), (3) and (4).
Those provisions read:
“(2) A collective agreement binds for the whole period of the
collective agreement every person bound in terms of subsection
(1)
(c) who was a member at the time it became binding, or who becomes a
member after it became binding, whether or not that person
continues
to be a member of the registered trade union or registered employers'
organisation for the duration of the collective
agreement.
(3) Where applicable, a collective agreement varies any contract of
employment between an employee and employer who are both bound
by the
collective agreement.
(4) Unless the collective agreement provides otherwise, any party to
a collective agreement that is concluded for an indefinite
period may
terminate the agreement by giving reasonable notice in writing to the
other parties.”
[118]
The effect of a section 18(1) collective agreement that
satisfies the requirements of section 23(1)(d) is that in a workplace
employees
who are not members of the union that is party to the
section 18(1) collective agreement are bound by the threshold fixed
in the
section 18(1) collective agreement.  This is despite the
fact that they are not members of the union that is a party to the

section 18(1) collective agreement.  Also, a trade union that is
not a party to the section 18(1) collective agreement but
seeks to
acquire the organisational rights in sections 12, 13 and 15 despite
not being a sufficiently representative trade union
is bound by the
section 18(1) collective agreement.  This will be so if the
employees on the basis of whose membership the
union seeks the
organisational rights are bound by the section 18(1) collective
agreement in terms of section 18(1)(d).
This would be despite
the fact that such a trade union is not a party to the section 18(1)
collective agreement.
Factual
background
[119]
The Department of Correctional Services (Department) concluded
a section 18(1) collective agreement with POPCRU which was the

majority union in the Departmental Bargaining Council.  That
collective agreement fixed 9 000 union members in the Department
as
the threshold that every union had to meet before it could acquire
the relevant organisational rights provided for in the LRA.

While the section 18(1) collective agreement with POPCRU was
operational, the Department concluded a collective agreement with
the
South African Correctional Services Workers Union (SACOSWU) in terms
of which it granted SACOSWU certain organisational rights
despite the
fact that that union did not meet the threshold fixed in the section
18(1) collective agreement between the Department
and POPCRU.
[120]
After the Department and SACOSWU had concluded the collective
agreement, a dispute arose between POPCRU, on the one hand, and, the

Department and SACOSWU, on the other.  In effect the dispute was
whether the Department was entitled to conclude a collective

agreement with SACOSWU granting it the organisational rights that it
granted it despite the fact that the Department was party
to the
section 18(1) collective agreement with POPCRU requiring any union
seeking the organisational rights provided for in the
LRA to meet the
threshold of 9 000 union members.  This dispute arose because
SACOSWU did not meet that threshold.
Issue in the
arbitration
[121]
The dispute was referred to arbitration in terms of the LRA.
The parties to the arbitration were POPCRU, on the one hand, and,
the
Department and SACOSWU, on the other.  In his arbitration award
the arbitrator recorded the following as part of the Department’s

contentions:
“12.3 There is, therefore, nothing to preclude
an agreement
with an unrepresentative union [that] confers organisational rights
on it,
provided such an agreement does not prevent
the
exercise of statutory organisational rights by the representative
union
.”
In recording
SACOSWU’s allegations or contentions, the arbitrator included
the following:
“SACOSWU alleges the following:
13.1
That an agreement was concluded between the Department and itself, as
a minority trade union, in terms of section 20 of the
LRA and, in
terms of which the Department granted to
it organisational rights
outside chapter III of the LRA, namely, that:
…
13.4
SACOSWU contends further that POPCRU has, in the circumstances,
suffered no prejudice in the rights granted by the Department
to
SACOSWU in that POPCRU
is in no way being prevented from
exercising any of its statutory organisational rights
.”
Again, we see a
reference to the concept of statutory organisational rights.
[122]
The arbitrator defined the issue that he was required to
decide in the following terms:
“The issue to be decided is:
14.1
whether SACOSWU is entitled to exercise any of the organisational
rights provided for in section 12, 13, 14, 15 or 16 of the
LRA in the
workplace of the Department; and
14.2
whether SACOSWU, as a minority and ‘unrepresented’ trade
union, is entitled to conclude an agreement with the Department
in
terms of which
the Department grants SACOSWU organisational rights
outside chapter III  Part A of the LRA and if so, whether such
an agreement
is valid and enforceable
.”
[123]
From the manner in which the arbitrator defined the issue that
he was called upon to decide, it is clear that the dispute was based

on whether in our law it can be said that we have statutory
organisational rights and contractual organisational rights.
As
explained elsewhere in this judgment, the statutory organisational
rights are those
conferred by
or “
provided for in
”
the LRA as reflected in paragraph 14.1 of the arbitration award
quoted above.  The contractual organisational rights
are those
that paragraph 14.2 of the arbitration award quoted above describes
as the “organisational rights outside Chapter
III Part A of the
LRA…”
[124]
Even in its submissions before the arbitrator, as recorded in
paragraph 17.10 of the arbitration award, SACOSWU made the following

submission:
“17.10 A narrow reading of section 20 is inappropriate.  A
better reading is to see it as an express confirmation of

internationally recognised rights of minority unions to gain access
to organisational facilities through the techniques of collective

bargaining.  Section 20 of the LRA permits [un]representative
trade unions to regulate organisational rights outside the ambit
of
Part A of Chapter III of the LRA.  The fact that it is silent on
collective agreements with unrepresentative trade union[s]
does not
preclude such agreements, provided that such agreements do not
prevent the exercise of statutory organisational rights
by a
representative union.
17.11 Chapter III Part A automatically gives the representative
unions organisational rights without them having to bargain for

them.  This provision ought not to be read as to deny these
rights to unrepresentative unions.
…..
17.14
POPCRU is entitled as of right to the statutory
organisational rights. SACOSWU is seeking basic organisational rights
outside Chapter
III of Part A of the LRA.
”
[125]
In his arbitration award the arbitrator concluded that:
“(s)ection 20 of the LRA permits representative unions to
regulate
organisational rights outside of the ambit of Part A and
permits the modification of those rights by way of an agreement
.
The section is silent on collective agreement(s) with
unrepresentative unions.  The LRA does not prohibit these
agreements
either.  There is therefore nothing to preclude an
agreement with an unrepresentative union which
confers
organisational rights on it, provided such agreement does not prevent
the exercise of
statutory rights by a representative union
.
Thus, properly construed, section 20 refers to agreement outside the
ambit of Part A.”
Later on, the
arbitrator articulated his conclusion in these terms:
“I find that SACOSWU is entitled and did enter into a valid
collective agreement with the Department to exercise the
organizational
rights referred to in section 12, 13, 14, 15 and 16 of
the LRA
outside Chapter III Part A of the LRA.
”
The arbitrator
concluded that the Department and SACOSWU were entitled to conclude
the collective agreement that they concluded
as the organisational
rights which were the subject of that collective agreement fell
outside Part A, of Chapter III of the LRA.
Labour Court and
Labour Appeal Court
[126]
POPCRU subsequently instituted a review application in the
Labour Court to have the award reviewed and set aside.  That
application
succeeded.  However, on appeal, the Labour Appeal
Court concluded that the Department and SACOSWU were entitled to
conclude
the collective agreement.  Accordingly, the Labour
Appeal Court overturned the decision of the Labour Court.
In this Court
[127]
The question before us is whether the Department was entitled
to enter into a collective agreement with SACOSWU granting that union

the organisational rights that it did despite the fact that its
section 18(1) collective agreement with POPCRU was still binding
upon
it and SACOSWU did not meet the threshold fixed in the section 18(1)
collective agreement.  Although the Labour Court
may not have
necessarily formulated the question in these terms, its conclusion
was that the Department was not entitled to do
so.  The Labour
Appeal Court also did not formulate the question in these terms but
the effect of its conclusion is that the
Department was entitled to
do so.
[128]
The question is one that requires a construction of certain
provisions of the LRA.  Purposive interpretation must be invoked

to interpret provisions of the LRA.  This is consistent with
section 3 of the LRA which tells us how the interpretation of

provisions of the LRA should be approached.  Section 3 provides
that:
“Any person applying this Act must interpret its provisions—
(a) to give effect to its primary objects;
(b) in compliance with the Constitution; and
(c) in compliance with the public international law obligations of
the Republic.”
[129]
The primary objects of the LRA are listed in section 1
thereof.  In part section 1 reads:
“The purpose of this Act is to advance economic development,
social justice, labour peace and the democratisation of the
workplace
by fulfilling the primary objects of this Act, which are—
(a) to give effect to and regulate the fundamental rights conferred
by section 23 of the Constitution of the Republic of South

Africa, 1996;
(b) to give effect to obligations incurred by the Republic as a
member state of the International Labour Organisation;
(c) to provide a framework within which employees and their trade
unions, employers and employers' organisations can—
(i) collectively bargain to determine wages, terms and conditions of
employment and other matters of mutual interest; and
(ii) formulate industrial policy; and
(d) to promote—
(i) orderly collective bargaining;
(ii) collective bargaining at sectoral level;
(iii) employee participation in decision-making in the workplace; and
(iv) the effective resolution of labour disputes.”
[130]
The LRA did not occur in a vacuum.  There was a labour
law dispensation before the LRA.  Indeed, much of the experience

and knowledge that South Africa acquired before the current LRA was
incorporated into it.  A good example of this is that
the
provisions of the LRA relating to unfair dismissals are based on much
that comes from our experience of labour law on unfair
dismissal in
the 1980’s and early 1990’s.  One of the labour law
experiences of the period prior to 1994 is that
there was no statute
that expressly conferred organisational rights on trade unions.
Unions acquired organisational rights
contractually, usually after
some industrial action.  That means by concluding agreements
with an employer.  To achieve
that, a trade union would start by
recruiting employees in a workplace as its members.  Once it had
reached a certain level
of representativeness in the workplace, it
would demand that the employer grants it certain organisational
rights such as access
to the workplace to serve the interests of its
members, representing them in disciplinary and grievance proceedings
and the deduction
of monthly union dues from its members’ wages
and transmission thereof to the union.  Usually, a recognition
agreement
that would be entered into would cover most, if not all,
the organisational rights that we find in the LRA.
[131]
Prior to the LRA, if a trade union did not acquire
organisational rights contractually, it could acquire them judicially
on the
basis of the wide concept of an unfair labour practice which
was provided for in the labour legislation of the time.  To
acquire
organisational rights judicially, a trade union would
initially refer an unfair labour practice dispute to the conciliation
process
in terms of section 35 of the Labour Relation Act, 1958, as
amended.  If that process failed, the trade union could then
refer
an unfair labour practice dispute to the Industrial Court for
determination in terms of section 46(9)(c) of that Act.
[132]
When the LRA was passed, it made provision for organisational
rights.  In fact it confers various organisational rights on any

registered trade union in a workplace that is sufficiently
representative of the employees of the employer in that workplace.

To acquire most of the organisational rights for which the LRA make
provision, a registered trade union does not need to have the
status
of a majority trade union in the workplace.  It is enough if a
union is sufficiently representative of the employer’s

employees in the workplace.  However, there are one or two
organisational rights that a trade union acquires only if it enjoys

the status of a majority trade union.
[133]
The question that arises is whether the fact that the LRA now
makes provision for organisational rights means that an employer and

a trade union that is not sufficiently representative of the
employees of the employer in a workplace as envisaged in the LRA in

regard to specific organisational rights may still conclude a
collective agreement which confers upon the union organisational

rights as was the position prior to the LRA or is the position that
the only organisational rights that exist in our law now are
the
statutory organisational rights provided for in the LRA.  In my
view, there are no provisions in the LRA on the basis
of which one
can justify a conclusion that the contractual acquisition of
organisational rights which was available to trade unions
before the
LRA is no longer available now or was abolished by the LRA.  On
the contrary, section 20 reveals that the opposite
is true.
Section 20 reads:
“20. Certain organisational rights in collective agreements
Nothing in this Part precludes the conclusion of a collective
agreement that regulates organisational rights.”
[134]
I draw attention to two features of section 20.  The
first is that the heading or bold part thereof refers to
“organisational
rights in collective agreements” and that
in referring to organisational rights, it does so without saying
“conferred
by this Part” or “referred to in this
Part.”  It simply refers to “organisational
rights”.
The significance of this is that the LRA
recognises that there is a distinction between the organisational
rights conferred by
the LRA or the organisational rights referred to
in Part A of Chapter III of the LRA.  So, section 20
contemplates organisational
rights in collective agreements whereas
the organisational rights dealt with in Part A of Chapter III of
the LRA are not rights
in
a collective agreement but
in
a statute or conferred by statute.
[135]
Support for the distinction referred to above is to be found
in some of the sections in Part A of Chapter III where the phrase:
“(t)he rights conferred by this section …” or
similar phrases appear.  Section 12(4) refers to “(t)he

rights conferred by this section”.  Section 18 refers to
“one or more of the organisational rights referred to
in
sections 12, 13 and 15”.  It also refers to “any of
the organisational rights”.  Section 21(1)
refers to
the “rights conferred by this Part in a workplace”.
Section 21(8)(c) refers to “any of the
organisational
rights conferred by this Part”.  Section 21(8A) refers to
“the rights referred to in section 14”,
“the rights
referred to in sections 12, 13 and 15”, “the rights
referred to in section 16”; “the
rights referred to in
sections 12, 13, 14 and 15”.  Section 21(8C) refers to
“the rights referred to in sections
12, 13 or 15”.
Section 21(11) refers to the “withdrawal of any of the
organisational rights conferred by this
Part”.
[136]
In
Bader Bop
this Court said about section 20:
“In my view, a better reading is to see section 20 as an
express confirmation of the internationally recognised rights of

minority unions to seek to gain access to the workplace, the
recognition of their shop stewards as well as other organisational

facilities through the techniques of collective bargaining”.
[47]
[137]
This Court held in
Bader Bop
that the dispute procedure
in section 21 of the LRA is only available to a trade union that is
sufficiently representative if it
wishes to determine the manner in
which the rights are to be exercised or when there is a dispute as to
whether the union is sufficiently
representative.  The Court
then said:
“Section 21 on its own terms, however, is not available to a
union that admits that it is not sufficiently representative
as
contemplated by the Act.”
[48]
The Court said that
section 21 “should not be read to deny such unions the right to
pursue organisational rights through the
ordinary mechanisms of
collective bargaining.”
[49]
[138]
It seems to me that section 20 was enacted to make it clear
that an employer and a trade union may still conclude a collective
agreement
concerning organisational rights outside of the LRA.
The result is that in our law there are at least two types of
organisational
rights.  The one type is that of statutory
organisational rights – those that are provided for in the
LRA.  A trade
union does not need any agreement with an employer
in order to become entitled to statutory organisational rights.
All that
is required of a trade union is to be a registered trade
union and to be sufficiently representative of the employer’s
employees
in the workplace for purposes of those specific statutory
organisational rights.  Once a trade union meets those two
requirements,
it becomes entitled to those statutory organisational
rights.  The employer has no right in law to terminate any of
the statutory
organisational rights in relation to a trade union as
long as the trade union remains sufficiently representative of the
employees
in the workplace concerned for purposes of that statutory
organisational right.
[139]
The other type of organisational rights is that of contractual
organisational rights.  The statutory organisational rights
differ from the contractual rights in that their source is the
statute whereas the source of contractual organisational rights is
a
contract in the form of a collective agreement between a trade union
and an employer.  Another distinction between the two
types is
that, whereas an employer has no right in law to terminate a
registered trade union’s statutory organisational rights,
an
employer may terminate a trade union’s contractual
organisational rights by lawfully terminating the collective
agreement.
In other words, an employer may terminate a
contractual organisational right on the normal principles of the law
of contract such
as a material breach of the contract or by giving
the requisite notice of termination.  In fact section 23(4) of
the LRA makes
this clear.  It provides: “Unless the
collective agreement provides otherwise, any party to a collective
agreement that
is concluded for an indefinite period may terminate
the agreement by giving reasonable notice in writing to the other
parties”.
[140]
The next question is whether what the Department granted to
SACOSWU by way of the collective agreement concerning organisational

rights was statutory organisational rights or contractual
organisational rights.  If it was statutory organisational
rights,
it was not entitled to do so while it was party to the
section 18(1) collective agreement with POPCRU which fixed a certain
threshold
that SACOSWU did not meet.  On general principles of
contract, the Department needed to get out of the section 18(1)
collective
agreement with POPCRU before it could grant SACOSWU
statutory organisational rights.
[141]
A conclusion that says or implies that an employer may be
party to both a section 18(1) collective agreement fixing a
certain
threshold of representativeness in the workplace that unions
must meet if they want certain statutory organisational rights and
at
the same time also be party to a collective agreement granting those
statutory organisational rights to a trade union which
does not meet
that threshold will spell the end of section 18(1) collective
agreements.  This is because such a conclusion
will mean that a
section 18(1) collective agreement has no efficacy and is not helpful
to anybody, be it the employer or the majority
union.  The
effect of such a conclusion will be that an employer who is party to
a section 18(1) collective agreement may
breach such an agreement
with impunity.
[142]
In my view, the organisational rights that the Department
conferred on SACOSWU were not statutory organisational rights.
They
were contractual organisational rights.  SACOSWU did not
meet the conditions prescribed for the acquisition of the relevant

statutory organisational rights, namely being sufficiently
representative of the Department’s employees required for the

relevant organisational rights.  Therefore, SACOSWU did not
qualify for any of the statutory organisational rights.
[143]
In its answering affidavit in the Labour Court SACOSWU
referred to the organisational rights it was seeking or it had
acquired as
organisational rights referred to in the LRA.
However, in a number of areas in that answering affidavit the
deponent also
made it clear that these were organisational rights
falling outside of the LRA.  Contractual organisational rights
fall outside
of the chapter on organisational rights in the LRA.
I do not think that SACOSWU’s conduct in referring to the
organisational
rights as organisational rights provided for in the
LRA converts contractual rights into statutory organisational rights.
[144]
The threshold that a section 18(1) collective agreement fixes
or imposes applies to statutory organisational rights and not to
contractual
organisational rights.  I, therefore, conclude that
an employer who is party to a section 18(1) collective agreement may
conclude
a collective agreement granting a union that does not meet
the threshold fixed in the section 18(1) collective agreement
contractual
organisational rights.  This is so because a section
18(1) collective agreement has nothing to do with contractual
organisational
rights.  This, therefore, means that the
Department was entitled to conclude the collective agreement that it
concluded with
SACOSWU concerning contractual organisational rights.
[145]
The interpretation I have adopted above results in a regime in
which statutory rights and contractual rights on the same subject

exist side by side.  That is not an unusual situation in our
law.  In employment law an employer may be obliged by section

37(1)(b) of the Basic Conditions of Employment Act
[50]
to give an employee at least two weeks’ written notice of the
termination of the contract of employment whereas a clause
in that
employee’s contract of employment may oblige the employer to
give the employee a month’s notice of termination.
In
such a case we can see that there is a right to notice of termination
provided for in a statute and a right to notice of termination

provided for in a contract of employment.  A termination of the
contract of employment in breach of either periods of notice
or both
periods may result in an invalid termination of the contract of
employment.  Indeed, a termination of the contract
of employment
in breach of either period of notice may well also constitute an
unfair dismissal.  Compliance with the statutory
requirement of
notice but not with the contractual notice requirement will not help
the employer.  There must be compliance
with both the statute
and the contract.
[146]
Another example is that an employee whose contract of
employment does not contain any clauses governing the procedural
fairness
for dismissal is entitled to the statutory rights of
procedural fairness contained in the LRA.
[51]
Another example is where an employee’s contract has a clause
dealing with rights to procedural fairness even though
the LRA also
has provisions relating to procedural fairness in regard to the
termination of his or her contract of employment.
The
contractual provisions relating to procedural fairness exist as long
as the contract exists but they may be amended.
The statutory
provisions relating to procedural fairness exist as long as the
statute has not been repealed.  A breach of
the contractual
provisions relating to procedural fairness which may render the
dismissal either unlawful or unfair but a breach
of the provisions of
the LRA relating to procedural fairness result in a procedurally
unfair dismissal.
[147]
In so far as SACOSWU relied on this Court’s decision in
Bader Bop
,
[52]
it is important to bear in mind that the issue that this Court had to
decide in that case was not the same as the issue we are
called upon
to decide in the present case.  In
Bader Bop
the
issue was whether or not a trade union that is not sufficiently
representative in a workplace may call upon workers to withhold
their
labour in support of a demand for organisational rights.  There
was no section 18(1) collective agreement in the picture
in that
case.  In the present case the issue that was before the
arbitrator was whether an employer who is party to a section
18(1)
collective agreement with a majority trade union fixing a certain
threshold to be met by any registered trade union seeking

organisational rights provided for in the LRA may conclude a
collective agreement with a trade union that does not meet the
threshold
fixed in the section 18(1) collective agreement granting
the union organisational rights.  The question is whether the
decision
of the arbitration is unreasonable and falls to be reviewed
and set aside.
[148]
Although the issue that this Court had to decide in
Bader
Bop
was different from the issue that we are required to decide
in the present case, there are, nevertheless a number of statement
(dicta) made in
Bader Bop
which support the conclusion that
the Department and SACOSWU were within their rights to conclude their
collective agreement.
In
Bader Bop
this Court inter alia
said:
“[25] So far, the scheme of the Act is clear. Sufficiently
representative trade unions, and those unions that claim to be

sufficiently representative, may seek to enforce those organisational
rights which they claim the Act confers upon them by adjudication

(mediation and arbitration) or by industrial action.  It is not
clear what options (if any) those unions that are not sufficiently

representative to be the beneficiaries of the rights conferred by
Chapter III, Part A of the Act have to obtain organisational
rights.
There is no express provision of the Act regulating their
position.  The question that arises is whether the
Act must
necessarily be interpreted to preclude non-representative unions from
obtaining organisational rights, either through
agreement with the
employer, or through industrial action.”
[149]
For the above reasons I agree that the appeal should be
dismissed.  It is just and equitable that no order as to costs
be made.
For the Applicants:
CE Watt-Pringle SC and KS McLean instructed by Allardyce &
Partners Attorneys.
For the First
Respondent: JG Grogan and L Voultsos instructed by Neville Borman &
Botha Attorneys.
[1]
66 of 1995.
[2]
Section 12 of the LRA provides:
“(1) Any office-bearer or official of a representative trade
union is entitled to enter the employer’s premises in
order to
recruit members or communicate with members, or otherwise serve
their interests.
(2) A representative trade union is entitled to hold meetings with
employees outside their working hours at the employer’s

premises.
(3) The members of a representative trade union are entitled to vote
at the employer’s premises in any election or ballot

contemplated by that trade union’s constitution.
(4) The rights conferred by this section are subject to any
conditions as to time and place that are reasonable and necessary
to
safeguard life or property or to prevent the undue disruption of
work.”
Section 13 of the
LRA provides:
“(1) Any employee who is a member of a representative trade
union may authorise the employer in writing to deduct subscriptions

or levies payable to that trade union from the employee’s
wages.
(2) An employer who receives an authorisation in terms of subsection
(1) must begin making the authorised deduction as soon as
possible
and must remit the amount deducted to the representative trade union
by not later than the 15th day of the month first
following the date
each deduction was made.
(3) An employee may revoke an authorisation given in terms of
subsection (1) by giving the employer and the representative trade

union one month’s written notice or, if the employee works in
the public service, three months’ written notice.
(4) An employer who receives a notice in terms of subsection (3)
must continue to make the authorised deduction until the notice

period has expired and then must stop making the deduction.
(5) With each monthly remittance, the employer must give the
representative trade union—
(a) a list of the names of every member from whose wages the
employer has made the deductions that are included in the
remittance;
(b) details of the amounts deducted and remitted and the period to
which the deductions relate; and
(c) a copy of every notice of revocation in terms of subsection
(3).”
Section 15 of the
LRA provides:
“(1) An employee who is an office-bearer of a representative
trade union, or of a federation of trade unions to which the

representative trade union is affiliated, is entitled to take
reasonable leave during working hours for the purpose of performing

the functions of that office.
(2) The representative trade union and the employer may agree to the
number of days of leave, the number of days of paid leave
and the
conditions attached to any leave.
(3) An arbitration award in terms of section 21(7) regulating any of
the matters referred to in subsection (2) remains in force
for 12
months from the date of the award.”
[3]
It is important to note that section 23, which deals with the
“[l]egal effect of collective agreements” is found
in
Part B of Chapter III of the LRA, not in Part A where sections 18
and 20 appear.  SACOSWU thus contends that an agreement

concluded under section 20 in Part A, is not subject to section 18,
and cannot be extended under section 23(1)(d), which falls
under
Part B.  Section 23(1)(d) reads:
“A collective agreement binds—
…
(d) employees who are not members of the registered trade union or
trade unions party to the agreement if—
(i) the employees are identified in the agreement;
(ii) the agreement expressly binds the employees; and
(iii) that trade union or those trade unions have as their members
the majority of employees employed by the employer in the

workplace.”
[4]
See the full text of these provisions above n 2.
[5]
Section 14(4) provides:
“A trade union representative has the right to perform the
following functions—
(a) at the request of an employee in the workplace, to assist and
represent the employee in grievance and disciplinary proceedings.”
[6]
Even though the referral by POPCRU made reference to sections 12,
13, 14, 15 and 16 rights, only sections 12 and 13 rights were
in
issue.
[7]
South African Correctional Services Workers Union v Police and
Prisons Civil Rights Union
[2017] ZALAC 30
; (2017) 38 ILJ 2009
(LAC);
[2017] 9 BLLR 905
(LAC) (Labour Appeal Court judgment).
[8]
Id paras 31-2.
[9]
National Union of Metalworkers of South Africa
v Bader Bop (Pty) Ltd
[2002] ZACC 30
;
2003 (3) SA 513
(CC); (2003) 24 ILJ 305 (CC) (
Bader
Bop
).
[10]
The distinction can be found at
paras 31-2 of
POPCRU v Ledwaba N.O. and Others
(JR 636/2012) [2013]
ZALCJHB 224; (2014) 35 ILJ 1037 (LC);
[2013] 11 BLLR 1137
(LC) (Labour Court judgment)
, where the
Labour Court discusses why the decision of
Bader
Bop
was not applicable.  In
particular, at para 32, the Labour Court observed:
“
It is in this context where the
distinction between the current matter and the judgment in
Bader
Bop
comes in.
In
Bader
Bop
, the Court found that in the circumstances of that case, as
set out above, none of the limitations in section 65 of the LRA of

the right to strike found application.  And indeed, it did not
in that case, as in that case there was no other majority
trade
union in the employer armed with collective agreements concluded
with the employer such as the collective agreements at
stake in the
current matter.  In the current matter, POPCRU and its
collective agreements with the Department completely
changes the
landscape.  SACOSWU has no statutory entitlement to
organisational rights because it is not a sufficiently
representative in terms of Part A of Chapter III of the LRA and must
thus collectively bargain for it.”
[11]
In particular, at para 33 (above n 7), the Labour
Appeal Court  pronounced as follows:
“
However, as was made clear in
Bader
Bop
, there is nothing in Part A of
Chapter III which expressly states that unions which do not meet the
required threshold are prevented
from using the ordinary processes
of, as is relevant for current purposes, collective bargaining to
persuade the employer to
grant such rights to the minority union.”
Further,
at para 34, the Labour Appeal Court observed:
“
Were section 18(1) to be interpreted so as
to bar the conclusion of such agreement under section 20, this
would, as was cautioned
in both
Bader
Bop
and
AMCU
,
serve to disregard the ‘
internationally
recognised rights of minority unions to seek to gain access to the
workplace
’, to organize within
the workforce or to canvass support to challenge the hegemony of
established unions.”
[12]
Bader Bop
above n 9 at para 40.
[13]
Bader Bop (Pty) Ltd v NUMSA
(2002) 2 BLLR 139
(LAC) at para
84.
[14]
Bader Bop
above n 9 at para 39.
[15]
See Loggerenberg
Erasmus Superior Court Practice
2 ed (Juta &
Co Ltd, Pretoria 2015) vol 1 at 8-9.
[16]
See
National Coalition for Gay and Lesbian Equality v Minister of
Home Affairs
[1999] ZACC 17
;
2000 (2) SA 1
(CC);
2000 (1) BCLR
39
(CC) at fn 18.
[17]
See
Independent Electoral Commission v Langeberg Municipality
[2001] ZACC 23
;
2001 (3) SA 925
(CC);
2001 (9) BCLR 883
(CC)
(
Langeberg Municipality
) at para 9.
[18]
See
Minister of Mineral Resources v
Sishen Iron Ore Company (Pty) Ltd
[2013]
ZACC 45
;
2014 (2) SA 603
(CC);
2014 (2) BCLR 212
(CC) at para 104.
[19]
Case Number JR740/2017.
[20]
See [78].
[21]
See Labour Appeal Court judgment above n 7 at para 31 where the
Court held that, “Part A of Chapter III expressly confers

enforceable organizational rights on certain unions, unions that are
either sufficiently representative (sections 12, 13 and
15) or
majority unions (sections 14 and 16)”.  Further, at para
40, it goes on to state that, “[h]aving found
this to be so,
it is not necessary to deal with SACOSWU’s contention that
section 14 provided a right to such representation,
save to state
that the union’s reliance on that provision was misplaced in
the circumstances of this matter”.
[22]
Id at para 40, where the Labour Appeal Court pronounced that:
“It follows that the section 18(1) agreement was correctly
interpreted by the arbitrator to permit the conclusion of the

agreement with SACOSWU allowing the union section 12 rights, in
order to serve members’ interest by representing employees
in
disciplinary and grievance proceedings.”
[23]
Langeberg Municipality
above n 17 at para 11.
[24]
Labour Appeal Court judgment above n 7 at paras 34 and 35.
[25]
See [47].
[26]
Id [4] – [5].
[27]
See [49].
[28]
Section 36(1) of the Constitution provides:
“
The rights in the Bill of Rights may be
limited only in terms of law of general application to the extent
that the limitation
is reasonable and justifiable in an open and
democratic society based on human dignity, equality and freedom,
taking into account
all relevant factors.”
[29]
Langeberg Municipality
above n 17 at para 11.
[30]
MEC for Education: Kwazulu-Natal v Pillay
[2007] ZACC 21
;
2008 (1) SA 474
(CC);
2008 (2) BCLR 99
(CC) at para 32.
[31]
In relevant part the order reads:
“2. The orders of the Labour Court are set aside and replaced
with the following order:
1. Save for the substitution of the arbitration award as set out
below, the application to review and set aside the arbitration
award
is dismissed:
‘The collective agreement entered into with POPCRU in terms of
section 18(1) of the LRA establishing representation thresholds
for
the exercise of organisational rights under section 12, section 13
and section 15 in the workplace of the Department of Correctional

Services, does not prevent the Department from entering into a valid
and enforceable collective agreement with SACOSWU in terms
of
section 20 to permit the union to represent its members at internal
disciplinary and grievance proceedings in the workplace’.
2. There is no order as to costs.’”
[32]
Section 14(4) reads:
“A trade union representative has the right to perform the
following functions—
(a) at the request of an employee in the workplace, to assist and
represent the employee in grievance and disciplinary proceedings”.
[33]
Centre for Child Law v The Governing Body of Hoërskool
Fochville
[2015] ZASCA 155
;
2016 (2) SA 121
(SCA) at para 14 and
Natal Rugby Union v Gould
[1998] ZASCA 62
;
1999 (1) SA 432
(SCA) at 444-5.
[34]
AAA Investments (Proprietary) Limited v Micro Finance Regulatory
Council
[2006] ZACC 9
;
2007 (1) SA 343
(CC);
2006 (11) BCLR 1255
(CC) (
AAA Investments
) at para 27.
[35]
Section 3 of the LRA provides:
“Any person applying this Act must interpret its provisions—
(a) to give effect to its primary objects;
(b) in compliance with the Constitution; and
(c) in compliance with the public international law obligations of
the Republic.”
[36]
Makate v Vodacom (Pty) Ltd
[2016] ZACC 13
;
2016 (4) SA 121
(CC);
2016 (6) BCLR 709
(CC) at para 89.
[37]
Section 23(5) of the Constitution provides:
“
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 (1).”
[38]
The Freedom of Association and Protection of the Right to Organise
Convention, 1948 (No. 87).
[39]
Bader Bop
above n 9 at para 31.
[40]
Id at para 34.
[41]
Id at para 41.
[42]
South African Transport and Allied Workers Union (SATAWU) v
Moloto N.O.
[2012] ZACC 19
;
2012 (6) SA 249
(CC);
2012 (11) BCLR
1177
(CC) at para 44.
[43]
Labour Appeal Court judgment above n 7 at [40] and [4].
[44]
Bader Bop
above n 9 at para 40.
[45]
Id at paras 42 and 45.
[46]
First Judgment above n 2.
[47]
Bader Bop
above n 9 at para
41.
[48]
Id at para 42.
[49]
Id.
[50]
Section 37 of
Basic Conditions of Employment Act 75 of 1997
reads:
“(1) Subject to
section 38
, a contract of employment
terminable at the instance of a party to the contract may be
terminated only on notice of not less
than—
(a) one week, if the employee has been employed for six months or
less;
(b) two weeks, if the employee has been employed for more than six
months but not more than one year;
(c) four weeks, if the employee—
(i) has been employed for one year or more; or
(ii) is a farm worker or domestic worker who has been employed for
more than six months.”
[51]
Section 188(1)(b)
of
Labour Relations Act 66 of 1995
“that the
dismissal was effected in accordance with a fair procedure”
read with Code of Good Practice of Dismissal.
[52]
Bader Bop
above n 9.