[Editorial by Prof Darcy du Toit in the March 2009 edition of the SASLAW Newsletter reproduced here with kind permission].

For the second time in a year, a judgment by a distinguished member of SASLAW acting on the Labour Court bench is inviting comment and debate.   (See SASLAW Newsletter September 2008 for comment on the “Kylie” judgment).   The judgment in question is Booysen v SAPS & another [2008] 10 BLLR 928 (LC) and the fact that it was also delivered by Cheadle AJ is entirely coincidental.

The case involved an application by a police officer for intervention by the Labour Court in pending disciplinary proceedings based, inter alia, on the applicant’s constitutional right to fair labour practices (section 23(1), Constitution of the Republic of South Africa, 1996).   Among the various issues dealt with in the judgment, this is the one that stands out: is it possible for a litigant to rely directly on this (or any other) basic right in circumstances where a statute giving effect to that right offers no remedy?

Without going into the facts of the matter, the Booysen judgment deals with the question as follows:

“[37] The right to fair labour practices is given effect to by the LRA and other labour legislation.   Apart from challenges to the constitutionality or interpretation of that legislation or the development of the common law where there is no legislation, the right plays no other role and does not constitute a separate source for a cause of action.   That is clear from the recent decision in SANDU v Minister of Defence & others [2007] 9 BLLR 785 (CC):

“Where legislation is enacted to give effect to a constitutional right, a litigant may not bypass that legislation and rely directly on the Constitution without challenging that legislation as falling short of the constitutional standard.” (At paragraph 51.)

“[38] It follows then that the constitutional right and the legislation giving effect to it cannot be disaggregated unless of course the legislation or an interpretation of it is being specifically challenged.   A violation of the right to fair procedure under the LRA does not constitute a separate and actionable violation of section 23(1)”.

Cheadle AJ also distinguishes pre-SANDU matters, in which claims based on section 23(1) were entertained, on the basis that the law had then been “far from clear” then but that, since SANDU,

“[i]t is now clear that a violation of the right to a fair labour practice cannot ground a separate cause of action for the purposes of section 157(2).”

With respect, is that what SANDU was saying, and does it really change the legal landscape in this regard?

Consider the judgment of Landman J in NEWU v CCMA & others [2004] 2 BLLR 165 (LC) (the position was not changed when the matter went on appeal)  where the applicant (an employer) also tried to rely on section 23(1) of the Constitution in the absence of a statutory remedy.

On this point the following explanation was offered:

“Although item 2 of Schedule 7 [of the LRA] (dealing with unfair labour practices; now regulated by section 186(2) of the LRA) does not embrace the commission of an unfair labour practice by an employee against an employer this does not mean that the item … is unconstitutional.   In my opinion it means no more than that the LRA, in this instance, does not give effect to section 23 of the  Constitution.   Logically the LRA should be the home of the prohibition on an unfair labour practice committed by an employee.

A principal purpose of the LRA is “to give effect to and regulate the fundamental rights conferred by section 27 of the Constitution”.   … The LRA is not intended to regulate exhaustively the entire concept of a fair labour practice as contemplated in the Constitution of 1993 nor the present Constitution.   The field is far too wide to be contemplated by single statute”.

This would seem consistent with the position stated by the Constitutional Court in SANDU (and in several earlier decisions).   It is clear that, where a statute gives effect to a constitutional right, that statute must be relied on in the first instance in seeking a remedy for an alleged breach of the right.   And, if the statute is silent, the next question is whether the common law can be interpreted or “developed” in order to provide a remedy.   Only if this is also ruled out does it become possible to rely on the Constitution itself.   Whether the applicant will succeed when doing so, of course, is another matter.   (In NEWU as in Booysen, for example, it failed).   The point is only that the constitutional right cannot be rendered nugatory by the fact that the legislature, for whatever reason, failed to provide for its implementation under all or any circumstances – as Landman J recognised.

The Constitutional Court appears to be making the same point in the SANDU judgment, where it ruled that direct reliance on a constitutional right is possible where the implementing legislation is challenged as “falling short of the constitutional standard”.   If a violation of section 23(1) is alleged for which the LRA makes no specific provision, it might be said that the LRA is “falling short of the constitutional standard” and – barring a common law remedy – no recourse remains but to appeal to section 23(1) itself.

The reasoning of the court in Booysen, as reported above, is very terse but appears to be saying something rather more than this.   It says that the “constitutionality” of the LRA must be specifically challenged before section 23(1) can be relied on – in other words, that in this respect the LRA must be declared to be in conflict with the Constitution, in the sense of violating a basic right (in this case the right to fair labour practices) which the Constitution protects.

Does this follow?   There would seem to be a significant gap between legislation that is unconstitutional (i.e., actively in conflict with the constitutional standard) and legislation that is merely “falling short” of that standard (i.e., failing to provide a remedy under specific circumstances, without expressly excluding a remedy).   In SANDU, “challenging” the legislation appears to be intended in the latter sense whereas, in Booysen, the former is suggested.

The difference is not merely formal.   Establishing “unconstitutionality” (in the sense of an impermissible infringement of a basic right) requires a detailed analysis of the impugned provision in terms of section 36(1) of the Constitution.   This may well be hotly contested, and there is a wealth of case law on this.

Establishing that legislation “falls short” of the constitutional standard is a wholly different exercise.   The fact that (for example) the LRA offered no remedy to the applicants in NEWU and Booysen (and various other matters) was not in dispute.   The only question was whether, that being so, the conduct of which they complained amounted to a violation of their underlying constitutional right.

But, once the court moves on to considering this question, it is in effect assuming jurisdiction to entertain the dispute on the basis of the Constitution itself.   In Booysen the court declined to take this step, short of a challenge of the “constitutionality” of the LRA.   Is this what the Constitutional Court meant by its judgment in SANDU and previous matters?

Darcy du Toit