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