Jooste v Score Supermarket Trading (Pty) Ltd (Minister of Labour Intervening)

• Jurisdiction: South Africa
• Judge: Chaskalson P, Langa DP, Ackermann J, Goldstone J, Kriegler J, Madala J, Mokgoro J, O'Regan J, Sachs J, Yacoob J
• Judgment Date: 27 November 1998
• Citation: 1999 (2) SA 1 (CC)
• Docket Number: CCT 15/98
• Hearing Date: 10 November 1998
• Counsel: TJM Patteson for the applicant DN Unterhalter for the respondent JP Coetzee for the intervening party
• Court: Constitutional Court

Yacoob J:

Introduction I

[1] On 27 December 1995 the applicant fell and was injured in the respondent's supermarket where she worked as a cashier. On 29 April 1997 she began an action in the Eastern Cape High Court claiming, inter alia, general damages resulting from her injuries, which she alleged were a direct result of the negligence of one or more employees of the respondent during the course and scope of their employment. J

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[2] In its special plea the respondent took the point that the applicant's claim was barred by s 35(1) of the A Compensation for Occupational Injuries and Diseases Act 130 of 1993 ('the Compensation Act'). [1] This special plea elicited a replication which advanced the proposition that s 35(1) was inconsistent with the interim Constitution [2] in that its provisions violated the right to equality before the law and to equal protection B of the law and the right not to be unfairly discriminated against, the right of access to courts and the right to fair labour practices, enshrined in ss 8(1) and (2), [3] 22 [4] and 27(1) [5] of that Constitution respectively. The applicant accordingly sought to have the special plea dismissed with costs, alternatively to have the issue of C the constitutionality of s 35(1) referred to this Court, presumably pursuant to s 102(1) of the interim Constitution.

[3] No evidence was led at the hearing of the special plea and the matter was argued before, and determined D by, Zietsman JP in line with the attitude of the parties that the 1996 Constitution [6] was applicable to its determination. That Constitution came into force on 4 February 1997, after the applicant was injured but before proceedings were commenced.

[4] The case was decided in the High Court on the basis that it was necessary to determine whether the impugned section was in conflict E

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with the provisions of ss 9(1) and (3), [7] 34 [8] and 23(1) [9] of the 1996 Constitution. On that basis, the High A Court was empowered by s 172(2) of the 1996 Constitution to make a finding concerning the constitutionality of an Act of Parliament but an order of invalidity would have no force unless confirmed by this Court. Although notice of this constitutional challenge was not given to any organ of State, Zietsman JP found that s B 35(1) was inconsistent with the equality provisions of the 1996 Constitution and invalid, dismissed the special plea with costs and referred his order of constitutional invalidity to this Court for confirmation. [10]

[5] The applicant seeks confirmation of the order of the High Court pursuant to s 172(2)(d) of the 1996 C Constitution read with Constitutional Court Rule 15(4). The respondent opposed confirmation, belatedly filed a notice of appeal and an appropriate application for condonation. The applications were not opposed and are now granted. We have accordingly before us both an opposed application for the confirmation of the finding D of invalidity of s 35(1) by the High Court and a contested appeal against the whole of the judgment of that Court.

Which Constitution?

[6] It has been mentioned that the High Court decided the matter on the basis, firstly, that it was empowered E to do so by s 172(2)(a) of the 1996 Constitution and, secondly, that chap 2 of that Constitution was applicable to the case even though it did not exist at the time the applicant was injured. The High Court now undoubtedly has power under the 1996 Constitution to make a finding of constitutional invalidity of an Act of F Parliament in proceedings which are instituted after

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that Constitution came into force. [11] However, the constitutionality of an Act or statutory provision is A ordinarily to be determined by the substantive constitutional provisions in force at the time the cause of action arose. [12] The interim Constitution was in force when the applicant's cause of action arose and the validity of s 35(1) must, therefore, be determined against ss 8(1) and (2), [13] 22 [14] and 27(1) [15] of the interim B Constitution. This judgment proceeds accordingly. This course might have occasioned some difficulty if the conclusion concerning constitutional consistency were to vary depending on whether the interim or 1996 Constitution was to apply. In this case, however, that does not arise as there is no material difference C whether the provisions of s 8 of the interim Constitution or s 9 of the 1996 Constitution are applied.

Joinder

[7] It is undesirable for a Court to make an order of constitutional invalidity in relation to an Act of Parliament D or provincial Act unless the relevant organ of State which is not a party to the proceedings has had an opportunity to intervene in those proceedings. [16] Because Rule 6(2) [17] had not been complied with, the Minister of Labour, who is the relevant organ of State and who had not been given any opportunity to intervene in the case before the High Court, was notified and given the opportunity to intervene in the E proceedings before this Court. The Minister chose to intervene, opposed the confirmation of the finding of the High Court and presented helpful argument in support of that opposition.

[8] It is, however, necessary to consider the consequences arising from the matter having been determined by the High Court without notice to

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any organ of State. It was contended on behalf of the applicant that the Minister of Labour had no direct A interest in the proceedings and that there was accordingly no need for an opportunity for intervention to have been afforded to that office.

[9] The contention has no substance. The Compensation Act is important social legislation which has a B significant impact on the sensitive and intricate relationship amongst employers, employees and society at large. The State has chosen to intervene in that relationship by legislation and to effect a particular balance which it considered appropriate. Section 35(1) is an element of that legislation and the Minister, as the representative of the State responsible for the administration of this legislation, clearly had a direct, abiding C and crucial interest in the outcome of the litigation. This Court may well have declined to confirm the order solely on the ground that notice of the proceedings in the High Court was not given to the Minister. But there is no need to consider this course of action any further because these proceedings can be disposed of on more substantive grounds without any prejudice to the State. D

The equality and non-discrimination challenge

[10] It was contended in the High Court that s 35(1) infringed both s 9(1) and (3) of the 1996 Constitution. The applicant's equality challenge was based on a contention that employees, by being deprived of the E common-law right to claim damages against their employers, are placed at a disadvantage in relation to people who are not employees and who retain that right. The challenge was not based on any of the grounds specified either in s 8(2) of the interim Constitution or s 9(3) of the 1996 Constitution. In dealing with these contentions Zietsman JP said: F

'The question . . . is...