Ethekwini Municipality v SAMWU (442/11) [2013] ZASCA 135 (27 September 2013)


The SCA will not interfere with a decision of the Labour Appeal Court only because it considers it to be wrong: what is required in addition are special circumstances that take it out of the ordinary.


On 29 May 2007 the Ethekwini Municipality (the Municipality), concluded a collective agreement styled 'Divisional Conditions of Service' (DCOS) with SAMWU and IMATU. The agreement was concluded within the South African Local Government Bargaining Council (SALGBC).

On 18 July 2007 SAMWU lodged an urgent application in the Labour Court. It sought an order declaring that the Collective Agreement on DCOS is void and of no legal effect; and interdicting the Municipality from implementing the terms of the DCOS.

On 8 August 2007 IMATU launched a separate application in the LC. It sought relief that was to all intents and purposes identical to that sought by SAMWU.

The basis for the applications was that the SALGBC's Constitution makes a distinction between the Central Council of [SALBBC] and Divisions of the Council and this distinction is pivotal to the validity of collective agreements concluded in the council. This is because a distinction is drawn between matters of national competence and matters of divisional competence in relation to the powers to conclude collective agreements dealing with those topics. It was argued by the unions that the eThekwini division had no jurisdiction to bargain with regard to matters falling within a national competency. These had to be bargained in the Central Council.

On 26 September 2007 the LC issued an order that the collective agreement on DCOS was null and void and of legal force and effect.

With the leave of the LC the Municipality appealed to the LAC. The LAC dismissed the appeal with costs. The LAC confirmed that the parties, when concluding the DCOS, bargained for matters beyond their competence and which fell exclusively within the ambit of the National Collective Agreement. The parties, therefore, bargained and contracted beyond their contractual capacity.

The Municipality appealed to the SCA which dismissed the appeal.

Extract from the judgment:

Poonan JA:

[15]   I may add that leave to appeal was granted to the Municipality by this court on 8 June 2011. The LC had disposed of the matter fairly promptly. Thereafter, for reasons that do not emerge from the record, it took in excess of three years for the matter to be finalised before the LAC. Having obtained leave from this court on 8 June 2011, the Municipality was obliged in terms of the rules of this court to lodge the record of the proceedings with the registrar of this court on or before 7 October 2011. It, however, initially sought an extension until 7 February 2012 because as it was put 'a possible settlement is being negotiated'. Thereafter, a further three extensions were sought for the filing of the record and the record only came to be lodged with this court on 30 November 2012.

[16]   Thus, notwithstanding the passage of some six years since the commencement of the matter and what at times can only be described as the Municipality's desultory approach to the prosecution of the appeal, it is now being urged upon us that the appeal still presents live issues. In my view it does not. The thrust of counsel's argument from the bar in this court was that in all likelihood there will be further litigation between the parties flowing from the implementation of the agreement, which has since been held to be 'void and of no legal effect'. Precisely what disputes will form the subject of that litigation and in which fora those disputes will be pursued was the subject of some speculation before us. In Clear Enterprises (Pty) Ltd V Commissioner for South African Revenue Services & others (757/10) [2011] ZASCA 164 (29 September 2011) a similar contention was dealt with in these terms:

'[17]   Simply put, whatever issues do arise in the pending matters none of them are yet "ripe" for adjudication by this court. To borrow from Kriegler J in Ferreira v Levin NO & others; Vryenhoek v Powell NO & others 1996 (1) SA 984 (CC) para 199:

"The essential flaw in the applicants' cases is one of timing or, as the Americans and, occasionally the Canadians call it, "ripeness". That term has a particular connotation in the constitutional jurisprudence of those countries which need not be analysed now. Suffice it to say that the doctrine of ripeness serves the useful purpose of highlighting that the business of a court is generally retrospective; it deals with situations or problems that have already ripened or crystallised, and not with prospective or hypothetical ones. Although, as Professor Sharpe points out and our Constitution acknowledges, the criteria for hearing a constitutional case are more generous than for ordinary suits, even cases for relief on constitutional grounds are not decided in the air. And the present cases seem to me, as I have tried to show in the parody above, to be pre-eminent examples of speculative cases. The time of this Court is too valuable to be frittered away on hypothetical fears of corporate skeletons being discovered."

[18]   Although expressed somewhat differently and in the different context of constitutional adjudication where 'ripeness' has taken on a particular meaning, both the principles and policy considerations articulated by Kriegler J resonate with the jurisprudence of this court. Thus in Coin Security Group (Pty) Ltd v SA National Union for Security Officers & others . . . 2001 (2) SA 872 (SCA) para 9, Plewman JA quoted with approval from the speech of Lord Bridge of Harwich in the case of Ainsbury v Millington [1987] 1 All ER 929 (HL), which concluded at 930g:

"It has always been a fundamental feature of our judicial system that the Courts decide disputes between the parties before them; they do not pronounce on abstract questions of law when there is no dispute to be resolved".

In a similar vein, in Western Cape Education Department v George . . . 1998 (3) SA 77 (SCA) at 84E, Howie JA stated:

"Finally, it is desirable that any judgment of this Court be the product of thorough consideration of, inter alia, forensically tested argument from both sides on questions that are necessary for the decision of the case."

And in Radio Pretoria (para 44), Navsa JA said:

"Courts of appeal often have to deal with congested court rolls. They do not give advice gratuitously. They decide real disputes and do not speculate or theorise (see the Coin Security case (supra) at paragraph [7] (875A-D)). Furthermore, statutory enactments are to be applied to or interpreted against particular facts and disputes and not in isolation."

[19]   In effect what the parties are seeking is legal advice from this court. But as Innes CJ observed in Geldenhuys & Neethling v Beuthin 1918 AD 426 at 441:

"After all, Courts of Law exist for the settlement of concrete controversies and actual infringements of rights, not to pronounce upon abstract questions, or to advise upon differing contentions, however important."

In National Coalition for Gay and Lesbian Equality & others v Minister of Home Affairs & others 2000 (2) SA 1 (CC) para 21 footnote 18, the Constitutional Court echoed what the learned Chief Justice had stated over eight decades earlier when it said:

"A case is moot and therefore not justifiable if it no longer presents an existing or live controversy which should exist if the Court is to avoid giving advisory opinions on abstract propositions of law." '

[17]   There is a further obstacle in the path of the Municipality. In National Union of Mineworkers & another v Samancor Ltd (Tubatse Ferrochrome) & others (2011) 32 ILJ 1618 (SCA), Nugent JA expressed it thus:

'[14]   But that is not the end of the matter. The basis for the decision of this court in National Union of Metalworkers of SA v Fry's Metals (Pty) Ltd [2005 (5) SA 433 (SCA)] was that it will not interfere with a decision of the Labour Appeal Court only because it considers it to be wrong: what is required in addition are special circumstances that take it out of the ordinary. It is because of that approach that this court takes to appeals from the Labour Appeal Court that leave to appeal will not be granted in cases that do not fall within that category. As it was expressed in that case:

"No doubt every appeal is of great importance to one or both parties, but this court must be satisfied, notwithstanding that there has already been an appeal to a specialist tribunal, and that the public interest demands that labour disputes be resolved speedily, that the matter is objectively of such importance to the parties or the public that special leave should be granted. We emphasize that the fact that applicants have already enjoyed a full appeal before the LAC will normally weigh heavily against the grant of leave. And the demands of expedition in the labour field will add further weight to that."

That is consistent with the observation by the Constitutional Court in Dudley v City of Cape Town [2005 (5) SA 429 (CC) para 9] that -

"[t]he LAC is a specialised appellate court that functions in the area of labour law. Both the LAC and the Labour Court were established to administer labour legislation. They are charged with the responsibility for overseeing the ongoing interpretation and application of labour laws and the development of labour jurisprudence".'

[18]   Nugent JA added (para 15), '[t]he fact that leave to appeal has been granted upon application to the President of this court is not decisive of whether a case meets the criteria laid down in Fry's Metals. That question is one that is ultimately to be answered by the court itself upon consideration of an appeal'. Here, one searches in vain for 'special circumstances that take this case out of the ordinary'.

[19]   The cumulative consequence of all the factors that I have alluded to is that no practical effect or result can be achieved in this case. For the aforegoing reasons the appeal was dismissed.

[20]   That leaves costs: On 7 July 2011 the registrar of this court directed the attention of both parties to the provisions of s 21A and enquired whether the appeal was being persisted in. Both parties intimated that the appeal was being persisted in. That was the stance adopted before us in argument as well. Neither was an unwilling participant in the appeal. Moreover, the point which was held to be decisive of the matter was raised by the court and not one of the parties. In those circumstances it was deemed appropriate that each party be ordered to pay its own costs.