Case  CCT228/20
[2021] ZACC 41

Hearing Date: 10 August 2021

Judgement Date: 12 November 2021

Post Judgment Media Summary  

The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.

On Tuesday 10 August 2021 the Constitutional Court heard an application for leave to appeal against the judgment of the Limpopo Division of the High Court. The High Court upheld two of three exceptions to the applicant’s claim for damages.

The applicant, Union for Police Security and Corrections Organisation, is a trade union that counts among its members some of the respondents’ employees. The first two respondents are private companies that operate the Kutama-Sinthumule Correctional Facility in Limpopo in terms of an agreement concluded with the Department of Correctional Services. In December 2017 the applicant’s executive committee sought permission to enter the respondents’ workplace to consult with its members and to hold a mass meeting after hours at the workplace. The request was refused.

The applicant instituted an action against the respondents in the High Court claiming that, by denying it access to the workplace, the respondents violated the following rights: its members’ rights to fair labour practices under section 23(1) of the Constitution; the right to form and join a trade union and to participate in its activities and programmes under section 23(2); and to freedom of assembly under section 17. As a result, the applicant argued that it was entitled to (a) appropriate relief like an interdict, mandamus or other relief in terms of section 38 of the Constitution and (b) to damages, including damages arising from alleged defamation. On defamation, the applicant’s case was, inter alia, that the denial of access to the workplace gave the impression that it was not a genuine trade union. The respondents excepted to the particulars of claim on the basis that they were vague, embarrassing and lacked averments necessary to sustain a cause of action. The High Court held that the principle of subsidiarity precluded the applicant from relying directly on the Constitution (sections 17 and 23) when it could and should have relied on the Labour Relations Act. It thus upheld the exception relating to sections 17 and 23 of the Constitution. Regarding the defamation claim, the High Court held that it could not attribute any defamatory meaning to what was communicated when access to the workplace was denied. The exception related to this claim was thus upheld as well. The applicant unsuccessfully applied for leave to appeal to both the High Court and the Supreme Court of Appeal.

The applicant sought leave to appeal from the Constitutional Court. Whilst the Constitutional Court accepted that the question concerning the principle of subsidiarity engaged its constitutional jurisdiction, this leg of the application lacked reasonable prospects of success. On the defamation related exception, the Court held that, for its jurisdiction to be engaged, there needs to be more than just the question whether the published matter is defamatory. On this aspect too, the Court refused leave to appeal. So, the applicant failed..

The Full judgment  here