South African Law Reports July 2016

LEGAL NOTES VOL 8/2016
Compiled by: Adv. Matthew Klein

INDEX[1]

EDITORIAL

SOUTH AFRICAN LAW REPORTS JULY 2016

SA CRIMINAL LAW REPORTS JULY 2016

All SOUTH AFRICAN LAW REPORTS JULY 2016

EDITORIAL

Editorial

After a long battle with Vodacom, a former employee will receive what was due to him….but how can an ordinary man afford to fight against financial gurus? Thanks to sponsors! The applicant, being sponsored (but not for free) had 4 counsel and the respondent as well.[2]

“We can confirm that we have received the ... request and that our focus is on complying with the order of the Constitutional Court‚ which requires us to negotiate in good faith with Mr Makate. We are committed to a swift resolution in line with the ruling of the Constitutional Court. We have already initiated a process for negotiating a reasonable compensation for Mr Makate and the matter is being dealt with as a priority‚” said Byron Kennedy‚ Vodacom spokesperson.Bloomberg reported that Sterling Rand‚ which funded Makate in his legal bid against Vodacom‚ had asked the company to delay its full payment.

Sterling Rand‚ financial backers for Makate‚ told Vodacom to withhold at least 50% of any settlement‚ a letter sent on behalf of Sterling Rand by lawyers Fairbridges Wertheim Becker shows‚ according to the Bloomberg report.

Sterling Rand is concerned that Makate and his lawyers‚ Stemela & Lubbe‚ will agree to a deal that excludes the company.If Vodacom does not agree to the request‚ an urgent application will be asked for from the courts‚ according to the letter dated May 23.The dispute comes a month after the Constitutional Court ruled that Vodacom must compensate Makate for the idea‚ which allows customers with no balance on their mobile phones to alert someone with a free text message.[3]

SALR JULY 2016

NKABINDE AND ANOTHER v JUDICIAL SERVICE COMMISSION AND OTHERS 2016 (4) SA 1 (SCA)

Constitutional law— Administration of justice — Judicial Service Commission — Complaint of judicial misconduct — Decisions — Review — New procedures applied retrospectively to complaint lodged in terms of old rules — Whetherretrospective application infringing principle of legality — Inquiry under old rules and new procedures substantively the same — No existing rights infringed, nor any material prejudice — Principle of legality not breached.

Constitutional law— Administration of justice — Judicial Service Commission — Complaint of judicial misconduct — Complaint not under oath as required by statute — Where complaint later confirmed by oral testimonyunder oath before Commission, and on affidavit in litigation — Purpose of requirement, which is to provide required solemnity to complaint and discourage lodgement of frivolous complaints, met — Substantial compliance — Judicial Service Commission Act 9 of 1994, s 14(3)(b).

Constitutional law— Administration of justice — Judicial Service Commission— Complaint of judicial misconduct — Appointment of prosecutor to lead evidence for judicial conduct tribunal — Whether offending against separation of powers and independence of judiciary — Prosecutor not forming part of executive — Independence of National Prosecuting Authority protected by provisions of Constitution and National Prosecuting Authority Act 32 of 1998 — Prosecutor's role limited to collecting andleading evidence — Separation of powers and independence of judiciary not infringed — Judicial Service Commission Act 9 of 1994, s 24(1).

In 2008 the justices of the Constitutional Court lodged a complaint with the Judicial Service Commission (JSC) concerning the conduct of Judge President Hlophe of the Western Cape High Court: it was alleged that he had approached the appellants, two justices of the Constitutional Court, in an attempt to improperly influence the court's judgment in certain pending matters. This complaint, and the JSC's approach in dealing with it, gave rise to extensive litigation, by a number of parties, and in various fora. Of concern in the present matter were decisions taken in 2012 by the JSC. (These decisions followed various judgments declaring to be unlawfulprevious proceedings of the JSC in 2009 in which it rejected the complaint.) Acting in terms of the Judicial Service Commission Act 9 of 1994 (JSCA) as amended in 2010, it referred the complaint to the Judicial Conduct Committee (the JCC) for a preliminary inquiry; requested the Chief Justice to appoint a Tribunal to investigate and report on the complaint; and, in terms of s 24(1) of the JSCA, appointed a member of the National Prosecuting Authority (NPA) to collect and adduce evidence before the Tribunal.The appellants unsuccessfully brought an application in the court a quo for an order setting aside the decisions of the JSC to refer the complaint to the JCC and to appoint a Tribunal, and declaring s 24(1) of the JSCA to be unconstitutional. The issues to be resolved in the appeal against that court's decision, and the SCA's findings, were as follows.

Retrospective application of new statutory regime

In 2010 extensive amendments were made to the JSCA. They introduced new mechanisms for the lodging and disposal of complaints, including the establishment of the JCC and a Tribunal. The JCC in 2012 dealt with the complaint under this new statutory regime. The appellants argued that this constituted a breach of the principle of legality in light of the fundamentalprinciple that statutes generally apply prospectively unless retrospective application was contemplated by the legislation itself. The complaint should have been dealt with in terms of the 'old rules' which constituted the regulatory regime prior to the amendments to the JSCA.

Held

For the appellants to be successful in their claim on the basis of unlawfulretrospective application, it had to be shown that the new statutory regime impinged upon rights existing at the time of the introduction of the amendments. The appellants could not meet this requirement — no existing rights were affected, nor was there any material prejudice to the appellants. Such a conclusion was buttressed by a comparison of the procedures under the old rules with the processes established in terms of the amendments tothe JSCA. The inquiry was substantively the same: the grounds on which a judge could be ultimately removed, and the possible sources of the complaint, were the same; both systems made allowance for the judge concerned to make representations; both made provision for the right of cross-examination; both envisioned a tiered inquiry process, inquisitorial in nature, where the final decision to refer a request to the National Assemblyfor removal of a judge lay with the JSC in its full complement; and both allowed a non-member of the JSC to lead or cross-examine witness.

Invalid complaint

The appellants argued that, even if the amended provisions of the JSCA were applicable, the inquiry could not have been proceeded with because there was no valid complaint before the JCC — more particularly, there was no complaintunder oathas required by s 14(3)(b)of the JSCA. That provision called for the lodging of 'an affidavit or affirmed statement'.

Held

It was never the assertion of the appellants that the JSC had acted in contravention of its obligations and duties in terms of ss 177 and 178 of the Constitutionwhen it received the complaint under the rules in force at the time. In the circumstances the invalidation of the complaint would infringe upon the rights of the complainants, and the appellants, andharm the image of the judiciary. This could never have been in the contemplation of the legislature when effecting the amendments.

Section 15(2)(b)of the JSCA provided for the summary dismissal of a complaint if it did not 'complysubstantially' with the provisions of s 14(3). Such wasa clear indication that a complaint was not automatically invalidated because it was not on affidavit. The purpose underlying the requirement — to provide the required degree of solemnity to a complaint, and to discourage the lodgement of frivolous complaints — was met in the present circumstances, where the complaint was confirmed by oral testimony under oath before the JSC in terms of the rules, and reconfirmed, on affidavit, insubsequent litigation. Further, even if one were to take the view that a complaint under oath was required in order for the JSC to conduct a preliminary inquiry and to establish the Tribunal, then the conclusion was compelled that there has been substantial compliance with this requirement.

As such, the complaint was not invalidated by not having originally been on oath.

The constitutionality of s 24(1) of the SCA

The appellants submitted that s 24(1) of the JSCA, by allowing for the appointment of a member of the NPA to collect evidence on behalf of the Tribunal and to adduce evidence at a hearing, breached the principles of separation of powers and the independence of the judiciary. The argument was that the involvement of such a person constituted an improper delegation ofpower to 'a member of the Executive' and that it impermissibly involved a non-member of the JSC in the adjudication of the conduct of a judge.

Held

A prosecutor could not be regarded as being part of the executive, as evidenced by the NPA's location within the constitutional framework: the NPA wasestablished in terms of s 179 of the Constitution, which fell under ch 8, entitled 'Courts and Administration of Justice', whereas the executive was dealt with under other chapters.

The independence of the NPA was protected both in terms of the Constitution, which in s 179 provided that national legislation had to ensure that the prosecuting authority exercised its functions 'without fear, favour orprejudice', and the National Prosecuting Authority Act 32 of 1998, which in s 32 obliged prosecutors to take an oath of office or affirmation to the effect that they would uphold the Constitution and enforce the law without fear, favour or prejudice.

Further, the prosecutors were limited in their role to that of collecting and leading evidence; they did not take any part in any final decision-making bythe Tribunal or the JSC.

As such, s 24(1) of the JSCA did not threaten either judicial independence or the separation of powers.

TRANSPORT AND ALLIED WORKERS UNION OF SOUTH AFRICA v PUTCO LTD 2016 (4) SA 39 (CC)

Labour law— Lock-out — Legality — Purported lock-out of members of trade union which was not party to bargaining council where dispute arose and referred for conciliation — Whether union party to dispute, and subject to lock-out, by virtue of power of Minister to extend collective agreement to non-parties — Labour Relations Act 66 of 1995, ss 32 and 64(1).

Labour law— Collective agreement — Bargaining council agreement — Clause in bargaining council constitution providing that members of non-party employee trade union bound by collective agreement reached at bargaining council — Whether lawful.

Labour law— Lock-out — Legality — Purported lock-out of members of tradeunion which was not party to bargaining council where dispute arose and referred for conciliation — Majoritarian principle (majoritarianism) — Whether principle applying such that trade union members parties to dispute and subject to lock-out — Labour Relations Act 66 of 1995, s 64(1).

Labour law— Majoritarian principle (majoritarianism) — Purported lock-out of members of trade union which not party to bargaining council wheredispute arose and referred for conciliation — Whether principle applying such that trade union members party to dispute, and subject to lock-out — Labour Relations Act 66 of 1995, s 64(1).

This matter stemmed from the institution by Putco Ltd (Putco), a passenger bus operator, of a lock-out of all its employees, 26% of whom belonged to the appellant, a trade union, TAWUSA. Putco had embarked on this course of action after industry wage negotiations at the South African Road Passenger Bargaining Council (the Bargaining Council), of which Putco was a member. The Bargaining Council had jurisdiction over collective bargaining in the bus passenger industry. The negotiations — which were aimed at the conclusion of a new collective agreement — had stalled, and the tradeunion representatives party to such Bargaining Council had signified to Putco their intention to launch strike action. TAWUSA, however, informed Putco that its members would not take part in the strike. In response to the strike notice, Putco notified TAWUSA of its intention to lock out all employees in the bargaining unit 'in support of wage proposals in the wage negotiations in the [Bargaining Council]'. TAWUSA's response was that it wasnot a member of the Bargaining Council, and thus not a party to the dispute, and could therefore not be locked out (TAWUSA had terminated membership prior to the dispute leading to lock-out arising).

TAWUSA successfully instituted an urgent application in the Labour Court for an interdict to prevent Putco from maintaining the lock-out. On appeal the Labour Appeal Court found the lock-out to be lawful, on the ground inter aliathat TAWUSA was a party to the dispute by virtue of the interest that it had in the outcome of the negotiations at the Bargaining Council and the benefits it stood to reap from the collective agreement reached there. TAWUSA took the matter on appeal to the Constitutional Court.

The Constitutional Court phrased the legal question to be addressed as follows: Did the Labour Relations Act 66 of 1995, in particular ss 213 and 64(1),which set out the requirements for a lock-out, permit an employer to lock out members of a trade union that was not a party to a bargaining council where a particular dispute had arisen and had been referred for conciliation?

The Constitutional Court ultimately found that the purported lock-out of TAWUSA did not comply with ss 213 and 64(1). Broadly speaking, both sections demanded that before a lock-out could be instituted, a dispute had to exist between the employer and the targeted employees, or their trade union. The requirement had not been met in the circumstances.

Held

Non-compliance with s 213 of the LRA

The purpose of a lock-out in terms of s 213 was to compel employees whosetrade union was party to certain negotiations to accede to an employer's demand. Its object was to resolve an impasse in negotiations between employer and employee in respect of matters of mutual interest. As a resolution of a dispute could be reached only between adversaries, logically there had to be a dispute between an employer and employees, or their trade union, before a lock-out was instituted. Accordingly, any exclusion ofemployees from an employer's workplace that was not preceded by a demand in respect of a disputed matter of mutual interest did not qualify as a lock-out in terms of s 213 of the LRA.

Putco's notice to TAWUSA preceding its purported lock-out did not constitute a perspicuous demand as required by s 213, rendering the lock-out of TAWUSAunlawful:

• A recognition agreement had previously been entered into between TAWUSA and Putco in terms of which the parties recognised that the minimum terms and conditions of employment in the bus passenger industry were regulated by the Bargaining Council. It required that negotiations in respect of such matters be undertaken at the Bargaining Council; the corollary being that demands in respect thereof could only be made there.

• Furthermore, a lock-out notice could not also constitute a demand; theLRA clearly distinguished between the two. The purpose of the notice was to inform a union and its members of an impending lock-out; in other words, at the time of the notice, recourse to a lock-out must have already been available.

• Putco had made a demand in the form of wage proposals at the BargainingCouncil; however, TAWUSA was not a party to the Bargaining Council. As such, no demand had been made to TAWUSA.

Non-compliance with s 64(1) of the LRA

In terms of s 64(1)(a)an employer had recourse to lock-out only if the 'issue in dispute' had been referred to a council or to the Commission and thedispute could not be resolved.*It was clear then that no industrial action could be undertaken until there had been an attempt at conciliation, and such conciliation had failed. Further, only once a dispute had arisen could it be referred to a bargaining council for conciliation. In the present case a dispute arose at the Bargaining Council, where unsuccessful conciliation efforts occurred. However, the entire process did not involve TAWUSA because it was not a party to the Bargaining Council.

The Labour Appeal Court was incorrect in finding that TAWUSA was a party to the dispute because it stood to benefit from the dispute's resolution at the Bargaining Council; and because it would be bound by the collective agreement reached and would thus 'reap the benefits of the wagenegotiations should the majority unions' demand[s] be accepted'. TAWUSA was not a party to the dispute for the simple reason that it was not a party to the Bargaining Council when the particular dispute arose. From the impasse in negotiations to the resultant industrial action, the parties to a dispute remain the same; they do not change midway through the resolution process. Thus, on a proper interpretation of s 64(1), the 'employees' whocould be the subject of the lock-out and to whom notice of lock-out had to be sent were those who were party to a bargaining council where the dispute arose and was referred for conciliation. TAWUSA did not fall into such a category.