Association of Mine Workers and Construction Union and Others v Royal Bafokeng Platinum Mine Limited and Others

CONSTITUTIONAL COURT OF SOUTH AFRICA Case CCT 181/18 In the matter between: ASSOCIATION OF MINEWORKERS AND CONSTRUCTION UNION First Applicant INDIVIDUAL PERSONS WHOSE NAMES ARE LISTED IN ANNEXURE “A” Second to further Applicants and ROYAL BAFOKENG PLATINUM LIMITED First Respondent NATIONAL UNION OF MINEWORKERS Second Respondent UASA – THE UNION MINISTER OF LABOUR Third Respondent Fourth Respondent MINISTER OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT Fifth Respondent Neutral citation: Association of Mineworkers and Construction Union and Others v Royal Bafokeng Platinum Limited and Others [2020] ZACC 1 Coram: Mogoeng CJ, Cameron J, Froneman J, Jafta J, Khampepe J, Ledwaba AJ, Madlanga J, Mhlantla J and Theron J Judgments: Ledwaba AJ (minority): [1] to [99] Froneman J (majority): [100] to [132] Jafta J (dissenting): [133] to [203] Theron J (concurring): [204] to [211] Heard on: 30 May 2019 Decided on: 23 January 2020 Summary: Labour Relations Act 66 of 1995 — constitutionality of sections 23(1)(d) and 189(1) — principle of majoritarianism — retrenchment — consultation ORDER On appeal from the Labour Appeal Court (hearing an appeal from the Labour Court) the following order is made: 1. 2. Leave to appeal is granted. The appeal is dismissed. JUDGMENT LEDWABA AJ (Mogoeng CJ, Jafta J and Madlanga J concurring): 2 LEDWABA AJ 1 Formerly known as the United Association of South Africa. 2 66 of 1995. 3 LEDWABA AJ 3 Section 23(1) of the Constitution states that “[e]veryone has the right to fair labour practices.” 4 LEDWABA AJ 4 It was common cause that section 189A of the LRA applied given the size of the respondent’s workforce and the number of employees it contemplated dismissing. Section 189A(13) provides: “If an employer does not comply with a fair procedure, a consulting party may approach the Labour Court by way of an application for an order— (a) (b) (c) (d) compelling the employer to comply with a fair procedure; interdicting or restraining the employer from dismissing an employee prior to complying with a fair procedure; directing the employer to reinstate an employee until it has complied with a fair procedure; make an award of compensation, if an order in terms of paragraphs (a) to (c) is not appropriate.” 5 LEDWABA AJ 6 LEDWABA AJ “[T]ugging [at] the thread of majoritarianism with regard to consulting partners might unravel the entire sweater woven by the Legislature in the Act.”6 5 Association of Mineworkers & Construction Union v Royal Bafokeng Platinum Ltd [2018] ZALAC 27; (2018) 39 ILJ 2205 (LAC) (Labour Appeal Court judgment) at para 42. 6 Id at para 55. 7 LEDWABA AJ “(a) Does the general principle on majoritarianism set out in AMCU v Chamber of Mines (3) SA 242 (CC) apply to retrenchment processes and, if not, why? (b) Are the benefits of the majoritarian principle in collective bargaining equally realisable in retrenchments and, if not, why?” 7 Association of Mineworkers and Construction Union v Chamber of Mines of South Africa [2017] ZACC 3; 2017 (3) SA 242 (CC); 2017 (6) BCLR 700 (CC) (AMCU I). 8 Id at para 67. 9 In their application for leave to appeal the applicants made reference to numerous other rights in the Bill of Rights, including: the right to equality (section 9), the right to dignity (section 10), the right to freedom of association (section 18), the right to access to information (section 32), the right to just administrative action (section 33) and the right of access to courts (section 34). 8 LEDWABA AJ 10 National Education Health & Allied Workers Union v University of Cape Town [2002] ZACC 27; (2003) 24 ILJ 95 (CC); 2003 (2) BCLR 154 (CC) (NEHAWU) at para 14 and S v Boesak [2000] ZACC 25; 2001 (1) SA 912 (CC); 2001 (1) BCLR 36 (CC) (Boesak) at paras 11-2. 11 NEHAWU id at para 18 and paras 25-9. 12Boesak above n 10 at para 12 and fn 7. 13 De Reuck v Director of Public Prosecutions, Witwatersrand Local Division [2003] ZACC 19; 2003 (2) SACR 445 (CC); 2003 (12) BCLR 1333 (CC) at para 3. 9 LEDWABA AJ 14 AMCU I above n 7 at fn 55 and the International Labour Organisation instruments cited there. See also Budlender “Industrial Relations and Collective Bargaining: Trends and Developments in South Africa” (2009) International Labour Organisation 1 and Hayter et al “Collective Bargaining for the 21st Century” (2011) 53 Journal of Industrial Relations 225, but compare with Katz “The Decentralisation of Collective Bargaining: A Literature Review and Comparative Analysis” (1993) 47 Industrial and Labour Relations Review 3. 15 Du Toit “What Is the Future of Collective Bargaining (and Labour Law) in South Africa” (2007) 28 Industrial Law Journal 1405; Snyman “The Principle of Majoritarianism in the Case of Organisational Rights for Trade Unions – is it Necessary for Stability in the Workplace or Simply a Recipe for Discord” (2016) 37 Industrial Law Journal 865; Du Toit “The Extension of Bargaining Council Agreements: Do the Amendments Address the Constitutional Challenge” (2014) 34 Industrial Law Journal 2637 at 2640; and Brassey “Labour Law after Marikana: Is Institutionalised Collective Bargaining in SA Wilting? If So, Should We Be Glad or Sad?” 34 Industrial Law Journal 823. 16 AMCU I above n 7 at para 42. 17 Ngcukaitobi “Strike Law, Structural Violence and Inequality in the Platinum Hills of Marikana” (2013) 34 Industrial Law Journal 836 at 852–8; Van Eck “In the Name of ‘Workplace and Majoritarianism’: Though Shalt Not Strike” (2017) 24 Industrial Law Journal 1486 at 1506 and Theron et al. “Organisational and Collective Bargaining Rights through the Lens of Marikana” (2015) 36 Industrial Law Journal 849. Theron et al remark at 867-8 that–– “[a]n overemphasis on stability and maintaining a status quo that is perceived as beneficial to either or both parties, as we have seen at Marikana, can have the opposite effect.” 10 LEDWABA AJ “When an employer contemplates dismissing one or more employees for reasons based on the employer’s operational requirements, the employer must consult— (a) any person whom the employer is required to consult in terms of a collective agreement; (b) if there is no collective agreement that requires consultation— (i) a workplace forum if the employees likely to be affected by the proposed dismissals are employed in a workplace in respect of which there is a workplace forum; and (ii) any registered trade union whose members are likely to be affected by the proposed dismissals; (c) if there is no workplace forum in the workplace in which the employees likely to be affected by the proposed dismissals are employed, any registered trade union whose members are likely to be affected by the proposed dismissals; or 11 (d) if there is no such trade union, the employees likely to be affected by the proposed dismissals or their representatives nominated for that purpose.” LEDWABA AJ “[w]here an employer consults in terms of agreed procedures with the recognised representative trade union in terms of a collective agreement which requires the employer to consult with it over retrenchment, such an employer has no obligation in law to consult with any other union or any individual employee over the retrenchment.”19 18 Section 44 of the Labour Relations Amendment Act 12 of 2002. 19 Aunde SA (Pty) Ltd v National Union of Metalworkers of SA [2011] ZALAC 12; (2011) 32 ILJ 2617 (LAC) at para 32. 12 LEDWABA AJ 20 The applicants relied specifically on Oosthuizen v Telkom SA Ltd [2007] ZALAC 6; (2007) 28 ILJ 2531 (LAC) and United National Breweries (SA) Ltd v Khanyeza [2005] ZALAC 6; (2006) 27 ILJ 150 (LAC) (Khanyeza) in support of such an inclusive interpretation. 21 Baloyi v M & P Manufacturing [2000] ZALAC 28; (2001) 22 ILJ 391 (LAC). 22 See Brenner & Buchman (Pty) Ltd v SA Commercial Catering and Allied Workers Union (1994) 15 ILJ 604 (LAC) at 609B-F. 23 Baloyi above n 21 at para 23. 24 28 of 1956. 13 LEDWABA AJ 25 Baloyi above n 21 at para 23. 26 Compare with Johnson & Johnson (Pty) Ltd v Chemical Workers Industrial Union (1999) 20 ILJ 89 (LAC) (Johnson & Johnson) at paras 26-9. 27 Baloyi above n 21 at para 19. 28 Section 1(a) of the LRA provides: 14 LEDWABA AJ “The purpose of this Act is to advance economic development, social justice, labour peace and the democratisation of the workplace by fulfilling the primary objects of this Act, which are— (a) To give effect to and regulate the fundamental rights conferred by section 23 of the Constitution of the Republic of South Africa, 1996.” 29 SA Commercial Catering & Allied Workers Union v Amalgamated Retailers (Pty) Ltd (2002) 23 ILJ 165 (LC) (Amalgamated Retailers). 30 Id at para 26. 31 Id at para 28. 32 Sikhosana v Sasol Synthetic Fuels (2000) 21 ILJ 649 (LC). 15 LEDWABA AJ “Section 189(1)(a) does not and cannot mean that, as long as there is a collective agreement applicable in a workplace that has a provision requiring consultation, section 189(1)(a) applies irrespective of whether or not the consultation required by the collective agreement relates to the contemplation of the dismissal of the employee sought to be dismissed.”34 33SA Commercial Catering & Allied Workers Union v Sun International SA Ltd (A Division of Kersaf Investments Ltd) (2003) 24 ILJ 594 (LC) at para 66, with Freund AJ stating that he saw— “no reason why fairness precluded consultation with affected individuals after deadlock had been reached with the union provided, of course, that the employer had properly discharged its legal obligations vis-á-vis the union.” 34 Khanyeza above n 20 at para 15. 16 LEDWABA AJ 35 Id at para 16 and the example given by the Labour Appeal Court where it held: “If the minority union had a collective agreement with a provision that required consultation but the majority union did not have a collective agreement . . . section 189(1) does not mean and cannot mean that, if the employer contemplated the dismissal of employees who are members of the majority union, the employer would be obliged to consult the minority union and not the majority union”. 17 LEDWABA AJ 36 At [38]. 37 Section 1 of the LRA above n 28. 38 South African National Defence Union v Minister of Defence [2007] ZACC 10; 2007 (5) SA 400 (CC); 2007 (8) BCLR 863 (CC) at para 51. This Court endorsed the approach taken by the High Court in NAPTOSA v Minister of Education, Western Cape 2001 (2) SA 112 (C), stating at para 51 that— “a litigant may not bypass the provisions of the LRA, and rely directly on the Constitution without challenging the provisions of the LRA on constitutional grounds.” 18 LEDWABA AJ “[o]ur Constitution is unique in constitutionalising the right to fair labour practice. But the concept is not defined in the Constitution. The concept of fair labour practice is incapable of precise definition. This problem is compounded by the tension between the interests of the workers and the interests of the employers that is inherent in labour relations. Indeed, what is fair depends upon the circumstances of a particular case and essentially involves a value judgment. It is therefore neither necessary nor desirable to define this concept.”42 39 Cheadle “Regulated Flexibility: Revisiting the LRA and the BCEA” (2006) 27 Industrial Law Journal 663 at 672. 40 Johnson and Johnson above n 26 at para 23 where the Labour Appeal Court held that— “[e]very person has a fundamental right to fair labour practices. In the present context expression is given to this in the LRA by affording an employee the right not to be unfairly dismissed and an employer the right to dismiss an employee for a fair reason based on the employer's operational requirements and in accordance with a fair procedure.” 41 South African Commercial, Catering and Allied Workers Union v Woolworths (Pty) Limited [2018] ZACC 44; 2019 (3) SA 362 (CC); 2019 (3) BCLR 412 (CC) at para 1. 42 NEHAWU above n 10 at para 33. It is worth noting that the Constitution of the Republic of Malawi similarly has a right to fair labour practices, though this is said to have been drawn from our own. See Cheadle above n 39 at 672. 19 LEDWABA AJ 43 See NEHAWU id at para 52, where this Court stated: “What lies at the heart of disputes on transfers of businesses is a clash between, on the one hand, the employer’s interest in the profitability, efficiency or survival of the business, or if need be its effective disposal of it, and the worker’s interest in job security and the right to freely choose an employer on the other hand.” 44 See Cheadle above n 39 and Le Roux “The New Unfair Labour Practice” in Le Roux and Rycroft (eds) Reinventing Labour Law (Juta, Cape Town 2012). 45 Food and Allied Workers Union v South African Breweries Limited (2004) 25 ILJ 1979 (LC). 20 LEDWABA AJ 46 The economic, technological and structural needs are obviously served by reaching consensus on these issues, such as mitigating the adverse effects of the dismissals; however, such benefits are at most only indirectly realised. 21 LEDWABA AJ 47 Or by the converse, if the group were to disperse, would it be now said that the right is extinguished? And so in this instance the debate on whether a “group-right” exists which gives rise to a claim does not arise. For an example of the appropriate setting, see Kymlicka Multicultural Citizenship: A Liberal Theory of Minority Rights (Clarendon Press, Oxford 1995) at 340-48. 48 In fact, the right is more broadly enjoyed with section 23(1)(a) of the Constitution enshrining that “[e]very person has a fundamental right to fair labour practices”. See Johnson & Johnson above n 26 at para 23. 49 At [26] to [27]. 50 Grogan Dismissal 2 ed (Juta, Cape Town 2014) at 445. 22 LEDWABA AJ “The position of the first, sixth and seventh respondents is, however, different. They were not members of NUMSA and were owed no allegiance by NUMSA. The issue at stake was not working conditions, nor wages or salaries where ordinary majoritarian procedures would suffice. The issue at stake was the very livelihood of the employees. As has been stated before termination of service in labour law is akin to capital punishment in criminal law.”51 51 SA Polymer Holdings (Pty) Ltd t/a Mega-Pipe v Llale (1994) 15 ILJ 277 (LAC) (Polymer Holdings) at 281I-J. 52 Id at 282A-B. 23 LEDWABA AJ 53 Buthelezi v Municipal Demarcation Board [2004] ZALAC 15; (2004) 25 ILJ 2317 (LAC). 54 Id at para 16. 55 Section 36(1) of the Constitution provides that: “The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality, and freedom, taking into account all relevant factors, including— (a) (b) (c) (d) (e) the nature of the right; the importance of the purpose of the limitation; the nature and extent of the limitation; the relation between the limitation and its purpose; and less restrictive means to achieve the purpose.” 24 LEDWABA AJ 56 Albeit that the dismissal must be for a valid operational reason and the procedure which is taken is fair. 25 LEDWABA AJ “[t]o require the employer to consult with a multiplicity of individual parties rather than the representative union at the workplace has the potential to result in a wide and irreconcilable range of outcomes depending on the consulting party’s preferences.”62 57 Atlantis Diesel Engines (Pty) Ltd v National Union of Metalworkers of South Africa [1994] ZASCA 183; 1995 (3) SA 22 (AD); [1995] 1 BLLR 1 (AD); Wanda v Toyota SA Marketing (A division of Toyota SA Motors Ltd) [2003] 2 BLLR 224 (LAC); and Karachi v Porter Motor Group (2000) 21 ILJ 2043 (LC). See further Johnson & Johnson above n 26 at paras 26-30 where the Labour Appeal Court specifically rejected a “mechanical checklist kind of approach” to determine compliance with section 189. 58 Karachi id at paras 36-7. 59 Wanda above n 57 at para 52. 60 Atlantis Diesel Engines above n 57 at 1253H. 61 Labour Appeal Court judgment above n 5 at paras 39-43. 62 Id at para 41. 26 LEDWABA AJ 63 National Union of Metalworkers of South Africa (NUMSA) obo Members v South African Airways Soc Limited [2017] ZALAC 32; [2017] 9 BLLR 867 (LAC) (SAA Limited). 64 This was after at least 31 consultation meetings had taken place. 65 The facts largely supported this contention, see SAA Limited above n 63 at paras 10-3. 27 LEDWABA AJ “[t]o allow a situation where a minority party would, right at the end of the consultation process, not be bound by a product of a legitimate and fair process, particularly where it was part of that process, would lead to chaotic situations.”66 66 Id at para 39. 67 The Court did say that such a right could be waived, but that there was no evidence that such an election had been made. See Aviation Union of Southern Africa v SA Airways SOC Ltd (2015) 36 ILJ 3030 (LC) at para 34. 28 LEDWABA AJ 68 At [24] to [27] and the articles cited there. See also Atlantis Diesel Engines above n 57 at 1253A-B where the implications of retrenchment were warned of by the then Appellate Division, in that: “Where retrenchment looms employees face the daunting prospect of losing their employment through no fault of their own. This can have serious consequences and threaten industrial peace. Proper consultation minimises resentment and promotes greater harmony in the workplace” 69 In Atlantis Diesel Engines above n 57 at 1252J-1253A the Court explained that such a requirement— “is rooted in pragmatism because the main objective must be to avoid retrenchments altogether, alternatively, to reduce the number of dismissal and mitigate their consequences. Consultation provides employees or their union(s) with a fair opportunity to make meaningful and effective proposals relating to the need for retrenchment or, if such need is accepted, the extent and implementation of the retrenchment process.” 29 LEDWABA AJ 70 This is the principle of natural justice that prescribes that nobody should be judged without the benefit of a fair hearing. 71 The objectives being those listed in section 189(2) of the LRA, above at [55]. 72 AMCU I above n 7. 30 LEDWABA AJ 73 The applicants alleged that these were the circumstances here. The Labour Appeal Court, however, found that there was no such collusion between the employer and the majority union to the detriment of the applicants, see Labour Appeal Court judgment above n 5 at para 34. This Court is bound by this factual finding. 31 LEDWABA AJ 74 Section 189(A)(11) concerns industrial action and reads: “The following provisions of Chapter IV apply to any strike or lockout in terms of this section: (a) Section 64(1) and (3)(a) to (d), except that— (i) (ii) section 64(1)(a) does not apply if a facilitator is appointed in terms of this section; an employer may only lock out in respect of a dispute in which a strike notice has been issued; (b) (c) subsection (2)(a), section 65 (1) and (3); section 66 except that written notice of any proposed secondary strike must be given at least 14 days prior to the commencement of the strike; (d) sections 67, 68, 69 and 76.” Section 189(A)(13) concerns approaching the Labour Court for appropriate relief and reads: “If an employer does not comply with a fair procedure, a consulting party may approach the Labour Court by way of an application for an order— (a) (b) (c) (d) compelling the employer to comply with a fair procedure; interdicting or restraining the employer from dismissing an employee prior to complying with a fair procedure; directing the employer to reinstate an employee until it has complied with a fair procedure; make an award of compensation, if an order in terms of paragraphs (a) to (c) is not appropriate.” 75 AMCU I above n 7. 32 LEDWABA AJ 76 In the retrenchment context, section 189(A)(13) of the LRA states: “Subject to this section, the Labour Court may make any appropriate order referred to in section 158(1)(a)” 77 AMCU I above n 7 at para 59 onward. 33 LEDWABA AJ “When an employer contemplates dismissing one or more employees for reasons based on the employer’s operational requirements, the employer must consult— (a) a workplace forum if the employees likely to be affected by the proposed dismissals are employed in a workplace in respect of which there is a workplace forum; and (b) any registered trade union whose members are likely to be affected by the proposed dismissals; or (c) if there is no such trade union, the employees likely to be affected by the proposed dismissals or their representatives nominated for that purpose.” 78 Nandutu v Minister of Home Affairs [2019] ZACC 24; 2019 (5) SA 325 (CC); 2019 (8) BCLR 938 (CC) at paras 90-1. 34 LEDWABA AJ [99] In the result, I would have made the following order: 35 LEDWABA AJ / FRONEMAN J FRONEMAN J (Cameron J, Khampepe J, Mhlantla J and Theron J concurring): (i) Section 23(1) of the Constitution provides that everyone has the right to fair labour practices. This provision does not expressly or impliedly guarantee a right to be individually consulted in the retrenchment process. 36 FRONEMAN J (ii) One of the objects of the LRA is to give effect to, and regulate, the fundamental rights conferred by section 23. That is done in relation to unfair dismissals and unfair labour practices in chapter VIII of the LRA. (iii) The right not to be unfairly dismissed or subjected to unfair labour practices is given effect to in section 185 of the LRA and its content and application are regulated by the further provisions in the chapter. (iv) The procedure for dismissals based on operational requirements is exhaustively set out in section 189 of the LRA. (v) Our jurisprudence since the introduction of the LRA has consistently interpreted section 189 to exclude any requirement of individual or parallel consultation in the retrenchment process outside the confines of the hierarchy section 189(1) itself creates. (vi) The consultation process section 189 prescribes is procedurally fair and accords with international standards. (vii) Compliance with section 189(1) procedural fairness does not mean that the outcome may not be challenged on the basis of substantive unfairness. Constitutional and legal framework [102] Section 23(1) of the Constitution provides that everyone has the right to fair labour practices. Apart from the specific fundamental rights set out in section 23(2), (3), (4) and (5) of the Constitution, this general provision provides the source for fleshing out the right to fair labour practices in legislation and by the courts. [103] The LRA was enacted to change the pre-constitutional law governing labour relations and, according to its long title, for the purpose of giving effect to section 23 of the Constitution. This is reiterated in section 1(a) which states that one of the statute’s primary objects is “to give effect to and regulate the fundamental rights conferred by section 23 of the Constitution”. 37 [104] The Constitution contains neither a right not to be unfairly dismissed, nor a right to the procedural or substantive safeguards that would ensure a fair dismissal. For that one has to go to Chapter VIII of the LRA. FRONEMAN J [106] The latter provides: “(1) A dismissal that is not automatically unfair, is unfair if the employer fails to prove–– (a) that the reason for dismissal is a fair reason–– (i) (ii) related to the employee’s conduct or capacity; or based on the employer’s operational requirements; and (b) that the dismissal was effected in accordance with a fair procedure. (2) Any person considering whether or not the reason for dismissal is a fair reason or whether or not the dismissal was effected in accordance with a fair procedure must take into account any relevant code of good practice issued in terms of this Act.” 79 And section 185(b) provides that every employee has a right not to be subjected to an unfair labour practice. 80 Le Roux Retrenchment Law in South Africa (Lexis Nexis, Durban 2016) (Le Roux) at 13. 81 NUMSA obo Nganezi v Dunlop Mixing and Technical Services (Pty) Ltd [2019] ZACC 25; 2019 (5) SA 354 (CC); 2019 (8) BCLR 966 (CC). 38 FRONEMAN J “Misconduct, incapacity and operational requirements are the gateways to fair dismissal under the LRA. For an employer, each has its own difficulties of proof and process. Dismissal for operational reasons involves complex procedural processes, requiring consultation, objective selection criteria and payment of severance benefits. Dismissal for incapacity requires proof that performance standards deal with the alleged incapacity and that alternative ways, short of dismissal, were unsuccessfully pursued before dismissal can take place. Dismissal for misconduct in circumstances where the primary misconduct is committed by one or more of a group of employees and the exact perpetrators cannot be identified, is complicated by the accepted principle that the misconduct must be proved against each individual employee.”82 [108] The procedural requirements for a fair consultative process are set out in section 189 of the LRA. Since the introduction of the LRA, as will be shown below, our jurisprudence has consistently interpreted section 189 to exclude any requirement of individual or parallel consultation in the retrenchment process outside the confines of the hierarchy created in section 189(1). Case law [109] In contrast with this clear doctrinal history, the first judgment asserts that–– “prior to the unequivocal statement in Aunde,83 our Labour Courts engaged with, and in certain circumstances supported, the notion that what was ‘fair’ required consultation with all employees that were to be affected by retrenchment process, or their representatives. It is evident that there was a reluctance to exclude affected parties from the consulting process wholesale.”84 I disagree. 82 Id at para 31. This must be viewed in light of the definition of operational requirements in section 213 of the LRA as “requirements based on the economic, technological, structural or similar needs of an employer.” 83 Aunde above n 19. 84 First judgment at [46]. 39 [110] The tone was set in the Labour Court twenty years ago in Sikhosana.85 Commenting on section 189, Brassey AJ stated: FRONEMAN J “It is impossible to believe that this hierarchy of obligations is anything but intentional: care has too obviously been taken in the choice of language to permit the conditional clauses to be dismissed as mere rhetorical flourishes. The interpreter is driven to the conclusion, therefore, that an employer, to satisfy [its] obligations under the subsection, need only consult the employees likely to be affected by the proposed dismissals (or their representatives) if there is no registered union whose members are likely to be effected by the dismissal, no workplace forum in the workplace in which the dismissal might occur and no collective agreement governing consultation. The union, in turn, need be consulted only if there is no such workplace forum and no such collective agreement, and so on up the ladder. Under the unfair labour practice jurisdiction of the previous Act, there were suggestions that the employer had a duty to consult at two levels: first with the collective bargaining representative on matters such as the need to retrench and the criteria for retrenchment, then with the prospective retrenchees over matters specific to their individual future and fate. Section 189(1) quite deliberately renounces dual consultation in favour of the single level of consultation for which it provides. The change evinces, I take it, more than just a concern to make the process of consultation simple and speedy: it embodies a desire, evident elsewhere in the Act too, that bargaining and consultation should be collective rather than individual and that the legitimacy of the representative with the best claim to be consulted should not be undermined by the claims to consult made by lesser interests. The effect of the section, thus, is to vest the appropriate collective representative with sole power of representation; if others claim the right to be consulted, they must look beyond the section, indeed beyond the Act, and point to some juristic act an agreement, undertaking or commitment of some sort in terms of which the employer concedes that [it] will engage in such consultation.”86 [111] An example of looking “beyond the Act” occurred in Amalgamated Retailers,87 where the employer elected to also consult with non-union members. In this regard, Van Niekerk AJ held: 85 Sikhosana above n 32. 86 Id at 656C-I. 87 Amalgamated Retailers above n 29. 40 FRONEMAN J “Section 189 of the LRA requires consultation with a defined consulting partner. The hierarchy established by section 189(1) establishes the identity of that partner. It is entirely possible, in the discharge of an obligation under section 189, that an individual employee is never directly advised that his or her continued employment is in jeopardy. This is the consequence of a deliberate recognition by the Act of the primacy of the rights accorded to trade unions, workplace forums, and ad hoc employee representatives in the consultation process. . . . However, in this instance, the respondent decided to initiate and conduct a separate consultation with non-union members, and to meet with these employees on an individual basis to discuss with matters relating to the proposed restructuring and their security of employment. Having elected to do so, it was incumbent on the respondent to interact with each employee with a view to reaching consensus on his or her proposed retrenchment, and the fairness of the respondent’s actions must accordingly be determined on the basis of its stated intentions. . . . I wish to emphasize that I reach this conclusion on the facts of this case and in the light of the respondent’s stated intentions. It is not a general proposition concerning the rights of individual employees in a consultation process. Given the primacy accorded to collective engagement with a trade union, a workplace forum or the representatives of employees accorded by section 189(1) and to which I have referred above, it is entirely feasible that an employer may discharge its obligations in terms of that section without engaging in separate consultation with affected individual employees. Baloyi’s case is an example of such an instance.”88 [112] The reference to Baloyi89 is to another judgment of Brassey AJ. There, he reiterated the change brought about by section 189 of the LRA. Dealing with an argument that individual consultation is required even after general consultation with worker representatives, he stated: 88 Id at paras 25-27. 89 Baloyi above n 21. 41 FRONEMAN J “The difficulty with applying this . . . to the facts of the present case is that it was predicated upon the concept of an unfair labour practice which was central to the legal dispensation regulated in terms of the Labour Relations Act 28 of 1956 (as amended). Under the LRA the concept of an unfair labour practice is only directly relevant to the transitional arrangements regulated in terms of schedule 7 to the Act. Accordingly the premise upon which Joffe J’s judgment is based in Brenner’s case is not applicable to the present dispute which stands to be decided in terms of the LRA.”90 [113] The judgment concludes: “In short, section 189(1) provides for the identity of the parties to be involved in the process of consultation with the employer. Section 189(2) sets out the agenda and objectives of the process to be adopted by an employer when the latter contemplates dismissing employees for reasons based upon operational requirements. Read together, the two subsections represent the codification of the standards which had previously been developed by way of the principle of fairness as contained in the concept of an unfair labour practice. Section 185 may well require that an employer must comply with both the substance and the form of the requirements as contained in section 189, but it adds nothing to the content of the process to be followed. Given the nature of the detailed codification of the procedure to be adopted for such dismissals, it cannot be said that some residual test remains, notwithstanding that the employer has complied meticulously with the requirements as laid out in section 189(1) and (2). It was not contended that respondent did not follow the proper procedures in dealing with NUMSA nor, in the light of the meetings to which reference has already been made, could such an argument have been justified. The argument that the appellant should have been afforded a hearing in person in circumstances where the union which represented him had properly been consulted runs counter to the express terms of the section. In keeping with a premise of the Act, section 189(1) envisages that the collectivities of management and labour represented by trade unions should engage in an appropriate process of consultation, save where the affected employees are not so represented. To 90 Id at para 18. 42 interpret the section so as to allow an employee represented by a union to engage in a parallel process of consultation would undermine the very purpose of the section.”91 FRONEMAN J [114] In Khanyeza,92 Labour Appeal Court confirmed the substance of this as sound doctrine. There, Zondo JP held that consultation with an individual union member, rather than with the union, was not a requirement under section 189 of the LRA: “[T]he collective agreement in this case seek to give union members covered by the agreement additional or better rights than those that they may already have in terms of the Act or some other legislation. The aim of the collective agreement is not to deprive union members who fall outside the collective agreement of the statutory rights that they already have such as their right to have their union consulted by the appellant in terms of section 189 of the Act when the appellant contemplates their dismissal for operational requirements. The purpose is not to disadvantage such employees and let them face the prospect of their dismissal due to no fault of their own without the benefit of the assistance and representation of their union. The purpose was to give the union members who fall within the collective agreement better rights and benefits in the knowledge that those union members not covered by the collective agreement would still be covered by the Act and not that they would be left to struggle on their own without union assistance and representation. In the light of the above I conclude that there is no person or body that in terms of the collective agreement that the appellant was required to consult when contemplating the dismissal of the first respondent. However, there is a person or body that in terms of the Act the appellant was required to consult.”93 [115] All this was established before Aunde.94 So what the applicant seeks is to invalidate a statutory scheme clearly emergent from the LRA – one that has been consistently interpreted and applied in our labour jurisprudence without constitutional challenge for at least twenty years. 91 Id at paras 20-3. 92 Khanyeza above n 20. 93 Id at para 25. 94 Aunde above n 19. 43 FRONEMAN J [116] To this must now be added the recent judgment of this Court in AMCU I.95 The first judgment does not seek to disturb the central finding of AMCU I. This affirmed “the constitutional warrant for majoritarianism in the service of collective bargaining”.96 The first judgment is thus obliged to proceed from the premise that a majority-driven collective bargaining process passes constitutional muster in the context of retrenchment. But from where does a right to further individual or dual consultation outside section 189 arise? And what does it add to the consultation process? From where an individual right to consultation? [117] The first judgment concludes: “Consultation in the context of a retrenchment dismissal implicates the right to fair labour practices in section 23(1) of the Constitution. Section 189(1) limits that right by creating a statutory regime which excludes certain employees from that consultation process.”97 95 AMCU I above n 7. 96 Id at para 57. 97 First judgment at [65]. 44 FRONEMAN J [119] The legislation embodies what is fair for retrenchments in the form of a consultation requirement. This was further refined to embody the policy principle of majoritarianism.98 To find that the statutory provision limits the right to consultation is in my view to get things back-to-front.99 It upends the very source of the entitlement and, in effect, begs the question at issue. The question is not whether section 189(1) limits an individual’s right to be consulted, but whether the way in which the legislation embodies the right to a fair procedure in the retrenchment process passes the constitutional test of rationality.100 [120] Thus approached, it is hard to see how the option the legislation embodies is anything but rational. This emerges from the very benefits that the inclusive approach that the first judgment argues for. All an individual employee gains is a right to be heard, notwithstanding the fact that retrenchment may be inevitable. The first judgment – in proper accord with our jurisprudence – emphasises that this process is not a negotiation or anything akin to bargaining.101 An employer is bound to hear and respond, but not to accept or comply. What then would be the substance of the right? It is difficult to imagine that an employee would find satisfaction in making representations that can, in effect, be brushed aside. Here, the retrenchment process differs fundamentally from a misconduct dismissal, a criminal trial or any similar process, such as a commission of enquiry, where the audi alteram partem principle 98 The concurring judgment by Jafta J argues that section 189(1) does not express the principle of majoritarianism. This is due to the possibility of a collective agreement being concluded with a minority trade union to the exclusion of a majority union. But no such possibility exists, unless the interpretation given by the Labour Appeal Court in Khanyeza is overruled, as the first judgment correctly notes at [45] read with fn 35. 99 Or more appropriately, to bite the hand that feeds. 100 For an analogous enquiry, albeit in an altogether different setting, see New National Party of South Africa v Government of the Republic of South Africa [1999] ZACC 5; 1999 (3) SA 191 (CC); 1999 (5) BCLR 489 (CC) (New National Party). See also Ronald Bobroff & Partners Inc v De La Guerre [2014] ZACC 2; 2014 (3) SA 134 (CC); 2014 (4) BCLR 430 (CC) at paras 6-9, where this Court clearly explained the distinction between the rationality review and reasonableness review in terms of section 36 of the Constitution. More specifically, this Court explained that the former is not grounded or based on the infringement of fundamental rights but is a mere threshold enquiry to ensure that the means chosen in legislation are rationally connected to the ends sought to be achieved. For that reason, it is viewed as being less stringent than reasonableness, which is the standard to determine whether a legislative provision that limits a constitutional right passes constitutional muster. 101 First judgment at [70] to [71]. 45 operates. There, the right to a hearing arises from the very possibility that the representations might affect the final outcome.102 FRONEMAN J 102 Section 189(6)(a) requires that an employer give reasons for disagreeing with the representations made by an employee. Importantly, these reasons need not be persuasive and perform a minimal explanatory function. See Johnson & Johnson above n 26 at para 26-7; Van Rooyen v Blue Financial Services (SA) (Pty) Ltd (2010) 31 ILJ 2735 (LC) at para 24; and Robbertze v Marsh SA (Pty) Ltd (2002) 23 ILJ 1448 (LC) at para 62. 103 And that such a response should fit into this Court’s 50-page limit on legal submissions. 46 FRONEMAN J [124] But even the freedom of association challenge fails to assist AMCU’s case. AMCU can succeed only if we adopt this proposition: that the right to freely associate means that every union must be truly equal, and enjoy each and every statutory entitlement, regardless of size. This cannot be correct. An employee has a right to join a trade union of their preference. That does not entail the right that the preferred union be empowered in every way they desire. Neither Bader Bop104 nor POPCRU105 support this. [125] Absent any other source for an individual right, the only basis for attacking the constitutional validity of section 189(1) would be that the provision is irrational, in conflict with section 9(1) of the Bill of Rights, and not any limitation of a right. But that was not advanced as a ground on the papers, nor could it have been advanced with any seriousness. [126] There is no procedural unfairness in the consultation process under section 189. We have seen that dismissal for operational reasons involves complex procedural processes, requiring consultation, objective selection criteria and payment of severance benefits.106 The process involves a shared attempt at arriving at an agreed outcome that gives joint consideration to the interests of employer and employees.107 Because it is not dependent on individual conduct and requires objective selection criteria, it is pre- eminently the kind of process where union assistance to employee members will be 104 National Union of Metal Workers of South Africa v Bader Bop (Pty) Ltd [2002] ZACC 30; 2003 (3) SA 513 (CC); 2003 (2) BCLR 182 (CC) (Bader Bop). 105 Police and Prisons Civil Rights Union v South African Correctional Services Workers’ Union [2018] ZACC 24; 2019 (1) SA 73 (CC); 2018 (11) BCLR 1411 (CC) (POPCRU). 106 See [107]. 107 In NEHAWU above n 10 at para 40, this Court held: “In my view, the focus of section 23(1) is, broadly speaking, the relationship between the worker and the employer and the continuation of that relationship on terms that are fair to both. In giving content to that right, it is important to bear in mind the tension between the interests of the workers and the interests of the employers which is inherent in labour relations. Care must therefore be taken to accommodate, where possible, these interests so as to arrive at the balance required by the concept of fair labour practices. It is in this context that the LRA must be construed.” See also Johnson and Johnson above n 26 at paras 26-31. 47 invaluable.108 The choice made for the pre-eminence of collective bargaining in section 189 is not only rational: it is sound, it is fair and it is based on international FRONEMAN J practice and standards.109 Substantive fairness [127] Compliance with section 189 does not necessarily mean that a dismissal that ensued after proper consultation will be held to be substantively fair.110 This was already recognised in Sikhosana: “Cases can arise in which consultation, though strictly in terms of the hierarchy, nevertheless falls short of what fairness requires. I think, for example, of a case in which the collective representative that is entitled to consult under the section discriminates against non-members in its dealings with the employer or of the problems that can arise when the collective agreement contemplated in the first paragraph of the subsection is the product of collusion between the employer and a minority or ‘sweetheart’ union.”111 [128] Where collective agreements are extended to non-parties in terms of section 23(1)(d) of the LRA, AMCU I makes it clear that the extension is subject to legality review. This is an extra safeguard: “If the invocation of the powers section 23(1)(d) confers is public, then its exercise must comply with the principle of legality – and from there a range of review mechanisms is available to a party claiming to be unfairly affected. The actual exercise of the power the provision confers on private parties can never occur lawlessly. It is 108 Compare Commercial Workers Union of SA v Tao Ying Metal Industries [2008] ZACC 15; 2009 (2) SA 204 (CC); 2009 (1) BCLR 1 (CC) at para 56, where it was held: “The right to engage in collective bargaining and to enforce the provisions of the collective agreement is an especially important right for the workers who are generally powerless to bargain individually over wages and conditions of employment. The enforcement of collective agreements is vital to industrial peace and it is indeed crucial to the achievement of fair labour practices which is constitutionally entrenched. The enforcement of these agreements is indeed crucial to a society which, like ours, is founded on the rule of law.” 109 Le Roux above n 80 at 7-9. 110 Id at 70. See also National Union of Mineworkers v Alexkor Ltd (2004) 25 ILJ 2034 (LC) at para 101. 111 Sikhosana above n 32 at 656I-657A. 48 FRONEMAN J subject to review under the principle of legality and, if it is administrative action, under PAJA. So AMCU’s submission that section 23(1)(d) – in contrast to section 32 – does not allow for judicial checks on extensions of collective agreements is wrong. . . . This typology has the important consequence that the conclusion of an agreement under section 23(1)(d) is subject to judicial scrutiny. An agreement concluded under the provision is reviewable under the principle of legality. The principle requires that all exercises of public power – including non-administrative action – conform to minimum standards of lawfulness and non-arbitrariness. Invoking the statute’s enormous clout by using a statutory power may not occur irrationally or arbitrarily. . . . One might ask how, if the statutory provision itself is not irrational, and indeed passes limitations analysis, there can be scope for irrationality review in its application. But a provision can rationally grant a power that may be irrationally exercised. That is a matter for practical enforcement.”112 [129] An individual who considers that the consultation process under section 189 has led to a substantively unfair dismissal is thus far from being without remedy. [130] Even if I am wrong in holding that there is no fundamental right to individual consultation in dismissals based on operational requirements, any limitation of section 189 would nevertheless have to be subjected to a limitation analysis under section 36 of the Constitution. In my view, for substantially the same reasons as set out in this judgment, with appropriate adjustment, any limitation, if it existed, would be justified. Conclusion [131] I would thus grant leave to appeal, but dismiss the appeal. 112 AMCU I above n 7 at paras 73, 84 and 86. 49 FRONEMAN J / JAFTA J Order [132] In the result, the following order is made: 1. 2. Leave to appeal is granted. The appeal is dismissed. JAFTA J: [133] I have had the benefit of reading the judgment written by Ledwaba AJ (first judgment) and the judgment of Froneman J (second judgment). They disagree on the validity of section 189(1) of the LRA. The first judgment concludes that the impugned provision is invalid whereas the second judgment holds that the provision concerned is consistent with the Constitution. Both judgments test the validity of that provision against the right to fair labour practices entrenched in section 23(1) of the Constitution.113 [134] By denying workers who are affected by a retrenchment an opportunity to be consulted if they do not belong to the union with which the employer had concluded a collective agreement, the first judgment concludes that the impugned provision unreasonably and unjustifiably infringes the workers’ right to fair labour practices. On the contrary, the second judgment holds that the right to fair labour practices in section 23(1) of the Constitution does not include a fair consultation process for individual workers and the LRA too does not confer that right. [135] In this regard the second judgment declares: 113 Section 23(1) of the Constitution provides: “Everyone has the right to fair labour practices.” 50 “From what we have seen thus far neither the Constitution nor the LRA provides textual or contextual support for any individual right in the consultation process outside the provisions of section 189.”114 JAFTA J And later says: “Absent any other source for an individual right, the only basis for attacking the constitutional validity of section 189(1) would be that the provision is irrational, in conflict with section 9(1) of the Bill of Rights, and not any limitation of a right. But that was not advanced as a ground on the papers, nor could it have been advanced with any seriousness.”115 [136] I am unable to agree with these conclusions. First, the case advanced by the applicants does not seek to have workers consulted individually. The complaint is that AMCU was left out of the consultation process undertaken in terms of section 189 simply because the collective agreement had identified other unions as parties to be consulted. In the pleaded case AMCU did not seek that its individual members be consulted. Instead, it sought that AMCU as their union of choice be consulted on behalf of its members who were to be affected by the retrenchment. [137] Plainly section 189(1) excludes consultation with any trade union not mentioned in the collective agreement where one has been concluded. And here the relevant collective agreement, in line with the section, identified the majority union and a minority union as parties to be consulted to the exclusion of other unions with membership among the affected workers. [138] Second, the assertion that in the absence of an individual right to consultation the only ground on which section 189(1) could be challenged was irrationality is incorrect. In their papers the applicants relied on a number of constitutional rights which they claimed the provision infringed. This is how they pleaded their challenge: 114 See second judgment at [118]. 115 See second judgment at [125]. 51 JAFTA J “The Applicants aver that sections 189(1)(a) to (c) (as interpreted in the manner alluded to above) are unconstitutional because they violate one or more of the following provisions, principles and/or individual rights: The rule of law alluded to in section 1 of the Constitution of the Republic of South Africa of 1996; the right to equality set out in section 9(1) of the Constitution of the Republic of South Africa of 1996; the right to dignity set out in section 10 of the Constitution of the Republic of South Africa of 1996; the right to freedom of association set out in section 18 of the Constitution of the Republic of South Africa of 1996; the right to fair labour practices set out in section 23 of the Constitution of the Republic of South Africa of 1996; the right to access to information set out in section 32 of the Constitution of the Republic of South Africa of 1996; and the right to access to courts set out in section 34 of the Constitution of the Republic of South Africa of 1996.” [139] It is also not true that the ground of irrationality was not pleaded. It was. The applicants pleaded: “Private parties are permitted, in terms of the section, to take away an employee’s individual right to be heard (through his/her trade union) before a dismissal. When this happens by virtue of sections 189(1)(a) to (c), the employee has no recourse to assert that right in a court of law or at another impartial or independent forum. This fundamentally undermines the principle of legality and the rule of law, and is irrational.” [140] It may well be that at the end of the day the applicants may not succeed on the ground of irrationality. That is not the point. The issue is that they have expressly pleaded it. [141] It is not necessary to test the validity of section 189(1) against all the rights on which AMCU relied. An examination of few rights suffices. But before determining whether the impugned provision violates some of those rights it is necessary to interpret section 189(1) to establish what it means. For it is what it actually means and the purpose it seeks to achieve which may violate guaranteed rights. 52 JAFTA J Meaning of section 189(1) [142] Section 189(1) provides: “When an employer contemplates dismissing one or more employees for reasons based on the employer's operational requirements, the employer must consult–– (a) any person whom the employer is required to consult in terms of a collective agreement; (b) if there is no collective agreement that requires consultation–– (i) a workplace forum, if the employees likely to be affected by the proposed dismissals are employed in a workplace in respect of which there is a workplace forum; and (ii) any registered trade union whose members are likely to be affected by the proposed dismissals; (c) if there is no workplace forum in the workplace in which the employees likely to be affected by the proposed dismissals are employed, any registered trade union whose members are likely to be affected by the proposed dismissals; or (d) if there is no such trade union, the employees likely to be affected by the proposed dismissals or their representatives nominated for that purpose.” [143] Textually the section creates different levels of consultation. But notably consultation at other levels may not be undertaken if there was consultation at the first level, regardless of the fact that not all affected workers were represented at that level. Under the section the first level of consultation relates to where a collective agreement exists and that agreement requires the employer to consult an identified person. The section stipulates that consultation at the next level may occur only if there is no collective agreement. [144] In effect this means that where there is a collective agreement, all affected workers who are not affiliated to the union which concluded the agreement with the employer are excluded from consultation under the section. This occurs even in circumstances where the union, which is not a party to the collective agreement, was 53 JAFTA J not afforded the opportunity to enter into such agreement with the employer before a consultation process begins. [145] This exclusion implicates a number of constitutional rights, some of which were relied on by the applicants in attacking the validity of section 189(1). These include the right of equality before the law; the right to equal protection and benefit of the law; the right to freedom of association; the right of access to information for purposes of consulting; and the right to fair labour practices which has, as its component, the right to employment security.116 [146] Section 189(1) authorises parties to a collective agreement to limit constitutional rights through terms of a collective agreement. The purpose for the intrusion into a number of guaranteed rights is not apparent from the provision. The belief that the impugned provision promotes majoritarianism is misplaced. The text of the provision does not support this. Notionally the section permits the conclusion of a collective agreement with any union irrespective of its representativeness. Where a collective agreement is between a minority union and the employer and that union is identified as the person with whom the employer must consult, the majority union may not be consulted. This is absurd. [147] Unlike section 18 of the LRA117 the impugned provision does not require that the conclusion of the relevant collective agreement be between employers and majority unions only. Evidently there is no manifest link between the provision and the principle of majoritarianism. In fact, as illustrated, the section has the potential to undermine majoritarianism by excluding a majority union from consultation where a collective agreement was concluded with a minority union. 116 See sections 9, 18, 23 and 32 of the Constitution. 117 Section 18(1) of the LRA provides: “An employer and a registered trade union whose members are a majority of the employees employed by that employer in a workplace, or the parties to a bargaining council, may conclude a collective agreement establishing a threshold of representativeness required in respect of one or more of the organisational rights referred to in sections 12, 13 and 15.” 54 JAFTA J [148] It is now convenient to consider some of the rights relied on in challenging the validity of section 189(1). Section 9(1) rights [149] The applicants asserted that the impugned provision is inconsistent with section 9(1) of the Constitution in that the procedural fairness afforded by section 189(1) to workers who are members of a union which is party to a collective agreement is not available to workers who belong to other unions. They alleged that section 189 promotes a number of workers’ rights like the right to employment security; the right not to be unfairly dismissed; the right to fair labour practices and the right to dignity. But when it comes to consultation which seeks to secure those rights, the section excludes some of the affected workers. [150] The claim was formulated in these terms: “The provisions (so interpreted) deprive employees who are members of a trade union other than the trade union(s) party to a collective agreement in terms of section 189(1)(a), of the right to procedural fairness and the right to be heard, in circumstances where their individual rights and interests, including their right to fair labour practices, their right not to be unfairly dismissed, and their employment security and dignity, are at stake. This occurred in this instance in relation to AMCU and the second to further applicants. In the result, the employees’ rights inter alia to fair labour practices and dignity are infringed. The provisions (so interpreted) discriminate unfairly between employees based on their chosen trade union affiliation, and deprive employees who elect to be affiliated to trade unions which are not party to a collective agreement in terms of section 189(1)(a), of the aforementioned rights and/or unduly encroach upon such rights, without doing so in relation to employees who elect to be affiliated to trade unions which are party to a collective agreement in terms of section 189(1)(a). This also occurred in this instance in relation to AMCU and the second to further applicants.” 55 JAFTA J [151] A closer reading of this statement reveals that the complaint is not only that the applicants were not treated equally before the law but also that they were denied equal protection and benefit of section 189(1) only because they belonged to a union which was not party to the collective agreement. It cannot be gainsaid that for that reason alone, the applicants were denied the protections afforded to workers before the implementation of a retrenchment. [152] The importance of consultation under section 189 is apparent from the other provisions of the section. An employer who contemplates retrenching workers is obliged to seek consensus from their representatives on issues like avoiding dismissals, reducing the number of dismissals, their timing and mitigating the effects of dismissals, the selection criteria for workers to be dismissed and the determination of the severance pay for workers who are dismissed.118 [153] It is evident from the list of issues over which the consulting parties must attempt to reach consensus that the temptation for a union to protect its own members and sacrifice non-members is a real risk. It would be foolhardy for any union to protect non-members in such consultation and support the retrenchment of its own members. This is unlikely to happen whilst the converse may easily occur because no union bears a duty to protect workers who chose not to join it. [154] The facts of this case manifestly illustrate that members of AMCU were denied the protections afforded to members of both NUM and UASA by section 189 and that denial was mandated by section 189(1). This clearly proves that some workers were afforded the protection and benefit of section 189 whereas others were not. Those who were denied equal protection and benefit of the law were those who chose to join AMCU and that was the sole reason for denying them equal protection and benefit of the law, which is guaranteed by section 9(1) of the Constitution. There can be no denying that this differentiation serves no legitimate government purpose. 118 Section 189(2) of the LRA. 56 JAFTA J [155] I have already demonstrated that the impugned provision does not promote the principle of majoritarianism and that the purpose of the differentiation in section 189(1) is obscure. But whatever that purpose might be, it is not a legitimate government purpose. Consequently the differentiation does not constitute a reasonable and justifiable limitation of the applicants’ rights contained in section 9(1) of the Constitution. [156] Section 9(1) guarantees equality before the law in these terms: “Everyone is equal before the law and has the right to equal protection and benefit of the law.” [157] Lucidly, section 9(2) proclaims that the equality guaranteed by section 9 “includes the full and equal enjoyment of all rights and freedoms”. This brings me to the next right relied on by the applicants in impugning section 189(1). Freedom of association [158] The other right on which the applicants relied was the right to freedom of association. Section 18 of the Constitution confers upon every person the right to freedom of association. In the context of labour relations this right enables workers to join unions of their own choice. This right is fortified by the right to form or join a trade union of one’s choice guaranteed by section 23(2)(a) of the Constitution.119 [159] Relying on the International Labour Organization (ILO) jurisprudence, this Court in Bader Bop said: 119 Section 23(2)(a) provides: “(2) Every worker has the right— (a) to form and join a trade union.” 57 JAFTA J “Of importance to this case in the ILO jurisprudence described is firstly the principle that freedom of association is ordinarily interpreted to afford unions the right to recruit members and to represent those members at least in individual workplace grievances; and secondly, the principle that unions should have the right to strike to enforce collective bargaining demands. The first principle is closely related to the principle of freedom of association entrenched in section 18 of our Constitution, which is given specific content in the right to form and join a trade union entrenched in section 23(2)(a), and the right of trade unions to organise in section 23(4)(b). These rights will be impaired where workers are not permitted to have their union represent them in workplace disciplinary and grievance matters, but are required to be represented by a rival union that they have chosen not to join.”120 [160] This statement demonstrates the interconnectedness between the right to freedom of association and the right to form and join a trade union together with the rights of trade unions to organise and engage in collective bargaining. In Bader Bop this Court declared that these rights are impaired if workers are not allowed to be represented by a union of their choice and are forced to be represented by a union they have chosen not to join. This is exactly what happened here. The applicants, as members of AMCU, were not permitted to be represented by their own union at the consultation process. Instead, they were forced to accept representation by NUM and UASA, after the collective agreement was extended to cover workers who were not members of those two unions. [161] But of more importance is the recognition by this Court in Bader Bop that majoritarianism is compatible with the existence of minority unions and allowing those unions to organise and represent their own members in competition with the majority union. With reference to the ILO Convention this Court observed: “An important principle of freedom of association is enshrined in Article 2 of the Convention on Freedom of Association and Protection of the Right to Organise which states: 120 Bader Bop above n 104 at para 34. 58 JAFTA J ‘Workers and employers, without distinction whatsoever, shall have the right to establish and, subject only to the rules of the organisation concerned, to join organisations of their own choosing without previous authorisation.’ Both committees have considered this provision to capture an important aspect of freedom of association in that it affords workers and employers an option to choose the particular organisation they wish to join. Although both committees have accepted that this does not mean that trade union pluralism is mandatory, they have held that a majoritarian system will not be incompatible with freedom of association, as long as minority unions are allowed to exist, to organise members, to represent members in relation to individual grievances and to seek to challenge majority unions from time to time.”121 [162] On that occasion this Court did not endorse the use of majoritarianism to trump the rights of minority unions. The right balance was struck between the exercise of constitutional rights by minority unions and the principle of majoritarianism which was on that occasion advanced by section 18 of the LRA. Here the impugned provision does not even promote the majoritarian system. But even if it did, there would have been no justification for placing majoritarianism above the rights guaranteed by the Constitution. Nor could it be said that majoritarianism constitutes a reasonable and justifiable limitation of those rights, including the right to freedom of association. [163] The statement in Bader Bop was reaffirmed in POPCRU where this Court stated: “Significantly, it emerges from this statement that the principle of majoritarianism which is embraced by our labour law is not incompatible with the principle of freedom of association which finds expression in the right to form and join a union of one’s choice. Workers form and join trade unions for protecting their rights and advancing their interests at the workplace. Any statutory provision that prevents a trade union from bargaining on behalf of its members or forbidding it from representing them in disciplinary and grievance proceedings would limit rights in the Bill of Rights. Forcing workers who belong to one trade union to be represented by a rival union at disciplinary 121 Id at para 31. 59 hearings seriously undermines their right to freedom of association described earlier.”122 JAFTA J [164] Therefore I conclude that the limitation of the applicants’ right to freedom of association here is neither reasonable nor justifiable. This is because no other reasons were advanced for that limitation. Right to fair labour practices [165] The divergence between the first and second judgment flows primarily from the interpretation and giving context to the right to fair labour practices enshrined in section 23 of the Constitution.123 The first judgment holds that consultation required by section 189(1) is a component of that right. Whereas the second judgment concludes that the text of section 23(1) of the Constitution does not guarantee a right to be individually consulted in the retrenchment process. [166] It is apparent from the two judgments that both accept that the right to fair labour practice is not defined in the Constitution and that its content should be gathered from the LRA which was enacted to give effect to rights enshrined in section 23 of the Constitution. This is undoubtedly correct. For this Court in NEHAWU124 recognised that the content of a fair labour practice is to be sourced from the LRA and international law. The Court said: “The concept of fair labour practice must be given content by the legislature and thereafter left to gather meaning, in the first instance, from the decisions of the specialist tribunals including the Labour Appeal Court and the Labour Court. These courts and tribunals are responsible for overseeing the interpretation and application of the LRA, a statute which was enacted to give effect to section 23(1). In giving content to this concept the courts and tribunals will have to seek guidance from domestic and 122 POPCRU above n 105 at para 90. 123 Section 23(1) of the Constitution provides: “Everyone has the right to fair labour practices.” 124 NEHAWU above n 10. 60 JAFTA J international experience. Domestic experience is reflected both in the equity-based jurisprudence generated by the unfair labour practice provision of the 1956 LRA as well as the codification of unfair labour practice in the LRA. International experience is reflected in the Conventions and Recommendations of the International Labour Organisation. Of course other comparable foreign instruments such as the European Social Charter 1961 as revised may provide guidance.”125 [167] But what is of more significance is the link that NEHAWU draws between the right to fair labour practices and Chapter VIII of the LRA which carries the heading “Unfair Dismissal and Unfair Labour Practice”. NEHAWU tells us in unequivocal terms that provisions of this chapter give effect to the right to fair labour practices and that at the heart of this right lies the value of job security. The right ensures the continuation of the employment relationship between an employee and an employer. [168] NEHAWU puts it thus: “Security of employment is a core value of the LRA and is dealt with in Chapter VIII. The chapter is headed “Unfair Dismissals”. The opening section, section 185, provides that ‘[e]very employee has the right not to be unfairly dismissed.’ This right is essential to the constitutional right to fair labour practices. As pointed out above, it seeks to ensure the continuation of the relationship between the worker and the employer on terms that are fair to both.”126 [169] However, it is significant to note that the scope of the right to fair labour practices is not limited to protection from unfair dismissals. It is broader and includes protection against all unfair conduct regardless of whether the source of such conduct is the employer or the employee. In other words the security against unfair conduct is afforded both to the employer and employee. In NEHAWU this Court rejected the contention that the right to fair labour practices was conferred on workers only.127 125 Id at para 34. 126 Id at para 42. 127 Id at para 39. 61 JAFTA J [170] The main pillar on which the second judgment rests is that the right to fair labour practices does not include an entitlement for workers to be consulted individually and that section 189 has not been construed to require parallel individual consultation. While this is correct to a degree, it is not accurate. Section 189(1) does not prohibit consultation with individual workers. On the contrary, the section recognises the need for such consultation where there is no registered trade union with membership among those who are earmarked for retrenchment; no workplace forum and no representatives of those workers. If any of these is present, the section does not require consultation with individual workers, over and above consultation with their representatives. For that would serve no useful purpose. [171] But here as mentioned, the complaint is not that the applicants required to be consulted individually. Instead, they demanded to be represented in the consultation process by a union of their choice and not those they had chosen not to join. [172] Moreover, there is nothing inherently objectionable to individual consultation where representative consultation is not available. This is because the focus of the right to fair labour practices is fairness in the employment relationship between an employer and an employee. In NEHAWU it was stated: “In my view the focus of section 23(1) is, broadly speaking, the relationship between the worker and the employer and the continuation of that relationship on terms that are fair to both. In giving content to that right, it is important to bear in mind the tension between the interests of the workers and the interests of the employers which is inherent in labour relations. Care must therefore be taken to accommodate, where possible, these interests so as to arrive at the balance required by the concept of fair labour practices. It is in this context that the LRA must be construed.”128 [173] The question that arises is whether it is procedurally fair to terminate employment of workers in circumstances where they were not to blame and without 128 Id at para 40. 62 JAFTA J affording them the opportunity to make representations and where that opportunity was given to other workers. With regard to dismissals, a pre-dismissal hearing is core to procedural fairness. Whether the reason for the dismissal is misconduct on the part of the dismissed workers or operational requirements makes no difference. The baseline is that procedural fairness requires an employer to afford an employee a chance to make representations against dismissal before the guillotine falls on him or her. [174] It cannot be denied that retrenchment is a species of dismissal and as such it should be held to the standard of procedural fairness applicable to other forms of dismissal. In retrenchments the need for fairness is heightened by the fact that the affected workers are not guilty of any breach of their contracts of employment. Yet they are confronted with termination of their employment. By allowing employers to dismiss workers without consulting them or their preferred union, section 189(1) plainly limits their right to fair labour practices. [175] What remains for consideration is whether the limitation in question is reasonable and justifiable in an open democracy based on human dignity, equality and freedom. I have already pointed out that the impugned provision infringes the equality clause and the right to freedom of association. There can be no justification for a limitation that impermissibly violates other rights in the Bill of Rights. Nor can it be said that such a limitation is reasonable. [176] It is not necessary to determine whether the impugned provision violates the right to dignity and the right of access to information on which the applicants also relied. The conclusions reached in respect of the other rights are sufficient to ground a declaration of invalidity. [177] The second judgment holds that AMCU’s challenge based on the freedom of association could succeed only if the right means that “every union must be truly equal, 63 JAFTA J and enjoy each and every statutory entitlement, regardless of size.”129 Without analysing decisions of this Court in Bader Bop and POPCRU, the second judgment concludes that the employee’s right to join a trade union of her choice does not mean that the union of choice may represent her in the section 189(1) consultation. While it is true that the right to consult is a statutory right, it is restricting the enjoyment of that right to certain trade unions which limits the constitutional right relied on by AMCU. [178] It is in this context that the conclusion reached in the second judgment is at variance with Bader Bop and POPCRU. Both these decisions dealt with the question of whether a minority union could conclude a collective agreement with an employer in breach of an earlier agreement between the same employer and a majority union which set conditions for minority unions to enjoy statutory organisational rights. [179] In Bader Bop NUMSA, a registered trade union without sufficient representativeness, demanded to be accorded organisational rights such as recognition of its shop stewards and representing its members in disciplinary and grievance proceedings. Bader Bop which had a collective agreement with a majority union refused to allow NUMSA to exercise those rights on the ground that it was not representative of a majority of its workforce. Bader Bop also refused to bargain with NUMSA for the same reason. The union declared a dispute and gave notice that it will go on strike. [180] Bader Bop approached the Labour Court for an interdict, contending that NUMSA, as a non-representative union was not entitled to have its shop stewards recognised and that it could not strike to make such demand. The Labour Court dismissed the application and on appeal to the Labour Appeal Court, Bader Bop succeeded. The Labour Appeal Court held that the LRA confers the right of shop steward recognition on unions representing a majority of the workforce and that NUMSA could not demand such a right or lawfully strike to make the demand. 129 Second judgment at [124]. 64 JAFTA J [181] Unhappy with the outcome, NUMSA appealed to this Court. Two issues relevant to the present matter were identified. The first was whether workers who are members of a minority union are entitled to be represented by that union in disciplinary and grievance proceedings. This Court answered the question in the affirmative. The Court held that members of a minority union are entitled to be represented by their own union in disciplinary and grievance proceedings. The Court observed that the right to freedom of association and the right to form and join a trade union are breached if members of a minority union are forced to be represented by a rival union they have chosen not to join.130 [182] On this authority, obliging members of AMCU here to be represented by the rival unions, NUM and UASA at the section 189(1) consultation must equally limit the right to freedom of association in section 18 of the Constitution and the right to form and join a trade union in section 23(2)(a) of the Constitution. The fact that here the representation required was at consultation and not a disciplinary or grievance proceeding should make no difference. The risk of termination of employment is present in both instances. [183] Significantly the second judgment does not address the important point made in Bader Bop. That is, that majoritarianism does not exclude the existence and operation of minority unions. The two are not mutually exclusive. In Bader Bop this Court noted that international law permits majoritarianism to the extent that it allows minority unions “to exist, to organise members, to represent members in relation to individual grievances and to seek to challenge majority unions from time to time.”131 This does not mean, as the second judgment suggests, that “every union must be truly equal”. Instead it means that minority unions must be given space to operate and even “seek to challenge majority unions”. 130 Bader Bop above n 104 at para 34. 131 Bader Bop above n 104 at para 31. 65 JAFTA J [184] POPCRU too dealt with a dispute about allowing a minority union to bargain and conclude a collective agreement with an employer for purposes of affording it statutory rights similar to those Bader Bop was concerned with. SACOSWU, a minority union, did not meet the threshold requirement set in a collective agreement between the employer and POPCRU, the majority union, which sought to bargain with the employer with a view to agree on organisational rights. POPCRU opposed SACOSWU’s attempts on the ground that the employer was bound by the agreement between it and POPCRU which regulated the enjoyment of organisational rights. POPCRU contended that SACOSWU should meet the threshold requirement in that agreement if it wanted to enjoy those rights.132 [185] But contrary to the collective agreement between it and POPCRU, the employer granted SACOSWU organisational rights, including the right to represent its members at disciplinary and grievance proceedings. POPCRU declared a dispute which was referred to conciliation and later to arbitration. The arbitrator ruled that the collective agreement between the employer and POPCRU did not preclude SACOSWU and the employer from concluding a separate agreement. [186] Dissatisfied with the arbitration award, POPCRU instituted a review application in the Labour Court which set aside the award on the ground that the conclusion of the second collective agreement was prohibited. An appeal to the Labour Appeal Court was successful and the decision of the Labour Court was reversed. POPCRU approached this Court for leave to appeal. [187] One of the issues that arose before this Court was whether workers who belong to a minority union are entitled to be represented by that union in disciplinary and grievance proceedings if the union does not meet the threshold requirement set in the agreement between the employer and a majority union. This Court held that there is nothing in the LRA which precludes a minority union and an employer from concluding 132 POPCRU above n 105 at paras 1 and 4. 66 JAFTA J a further collective agreement which regulates the exercise of organisational rights. Therefore, the second agreement between SACOSWU and the employer was valid. The fact that POPCRU was a majority union and had concluded a collective agreement with the employer which set threshold requirements was not an obstacle. This is because both unions are bearers of the constitutional right to bargain and had a right to represent their members. [188] The right to represent members flows primarily from the members’ constitutional rights to freedom of association and the right to form and join a trade union. These rights, guaranteed as they are by the Constitution, would be rendered worthless if workers having joined a union of their choice are forced to be represented by a rival union, even if it is a majority union. That is why in POPCRU this Court observed: “Any statutory provision that prevents a trade union from bargaining on behalf of its members or forbidding it from representing them in disciplinary and grievance proceedings would limit rights in the Bill of Rights. Forcing workers who belong to one trade union to be represented by a rival union at disciplinary hearings seriously undermines their right to freedom of association described earlier.”133 [189] In this matter it cannot be disputed that the impugned provision obliged members of AMCU to be represented at consultation by NUM and UASA, the two unions they had not chosen to join. That impaired also their right to form and join a trade union of their choice. For there would be no point in joining a minority union if it cannot represent its members at a process which may result in them losing their jobs. [190] The fourth judgment holds that for two additional reasons, AMCU’s attack should fail. First, it is said that AMCU failed to establish the limitation of the rights it relied on. One has to refer to the undisputed facts to conclude that this is not correct. Briefly those facts are that once Royal Bafokeng (employer) contemplated retrenching 133 POPCRU above n 105 at para 90. 67 JAFTA J some of its employees, it commenced consultation with NUM and UASA with whom it had a collective agreement which identified those two unions as the only parties to be consulted in terms of the impugned provision. [191] Attempts by AMCU to join the consultation process on behalf of its members were rebuffed. Royal Bafokeng cited the collective agreement and the impugned provision as the grounds for AMCU’s exclusion from the consultation process. It is common cause that some of the workers who were eventually retrenched were members of AMCU. It is also common cause that UASA was a minority union that was allowed to participate in the consultation process purely because it was identified as one of the parties to be consulted in the collective agreement. NUM was the majority union. [192] These facts show beyond doubt that in relation to the relevant consultation, AMCU was treated differently from both NUM and UASA. And the impugned provision authorised that differentiation. It is also plain from the facts that workers who chose to join AMCU were denied representation by a union of their choice and the union with which they had elected to associate. [193] The second judgment suggests that government could not have been in a position to justify the “infringement of a panoply of seven rights, merely because their infringement is alluded to.”134 This is not borne out by the record. The record reveals that the Minister has responded fully to allegations made in the founding affidavit in support of each right in the High Court. For example, with regard to the section 9(1) claim the Minister stated: “I further submit that the fact that AMCU and the second to further applicants were not consulted does not entail that the second to further applicants were not considered or were not equally treated as employees of the first respondent during the consultation process and the ensuing retrenchment agreement.” 134 Second judgment at [123]. 68 [194] And with regard to the claim based on freedom of association, the Minister said: JAFTA J “Furthermore, the right to freedom of association of the second to further applicants was not disturbed to the extent that their choice of whether they preferred to join AMCU, [NUM] or [UASA] was not in the main infringed by the recognition agreement. It is further important that one distinguishes between the freedom of association as well as the duty and / or right to bargain. The freedom to associate is a collective freedom of the individual in association with others who have similar goals to be free from unwarranted interference to achieve the common goal. However the freedom to bargain is earned by representivity which is pertinent to collective bargaining and further the prevention of proliferation of trade unions as well as to orderly collective bargaining and labour peace.” [195] The question is whether these defences should succeed to ward off the claims based on equal protection of the law and equal benefit of the law, as well as freedom of association. With regard to the first claim, whilst the Minister admits that AMCU was not consulted she contended that its members were treated equally as employees of Royal Bafokeng. This contention is devoid of any merit. Among the employees of Royal Bafokeng were members of NUM, UASA and AMCU which had 382 members. But only NUM and UASA were consulted, owing to the restrictions in the impugned provision. The provision differentiated AMCU members from other employees with regard to consultation. The other employees were represented by their own unions whilst AMCU members were not. Yet section 189 of the LRA affords workers facing retrenchment, the right to have their union consulted. [196] The nub of the complaint was that the impugned provision afforded some workers representation by their own union whilst other workers were denied the same right. And according to the jurisprudence of this Court AMCU needed to show differentiation in relation to consultation with unions. On the facts this it has succeeded 69 to prove.135 Once this was established it fell on the Minister to establish that the differentiation had a rational connection to a legitimate government purpose. In this regard the Minister stated: JAFTA J “[I]n the event that the Honourable Court finds that any of the rights have been infringed, I submit that the limitation of those rights in the circumstances serves an important purpose. More particularly that of ensuring that there is a speedy resolution of any disputes concerning the dismissal of employees for operational requirements.” [197] There is simply no rational connection between the differentiation in question and the speedy resolution of dismissal disputes. Dismissals for operational requirements occur at the conclusion of the process and not during consultation. It follows that the differentiation breaches section 9(1) of the Constitution. In Van der Merwe Moseneke DCJ said: “It is so that laws rarely prescribe the same treatment for everyone. Yet it bears repetition that when a law elects to make differentiation between people or classes of people it will fall foul of the constitutional standard of equality, if it is shown that the differentiation does not have a legitimate purpose or a rational relationship to the purpose advanced to validate it. Absent the pre-condition of a rational connection the impugned law infringes, at the outset, the right to equal protection and benefit of the law under section 9(1) of the Constitution. This is so because the legislative scheme confers benefits or imposes burdens unevenly and without a rational criterion or basis. That would be, an arbitrary differentiation which neither promotes public good nor advances a legitimate public object. In this sense, the impugned law would be inconsistent with the equality norm that the Constitution imposes, inasmuch as it breaches the ‘rational differentiation’ standard set by section 9(1) thereof.”136 [198] Both the second and fourth judgment conclude that section 9(1) and 18 claims cannot be determined because the parties did not present argument on those claims. While it is true that it is undesirable for this Court to determine issues without the benefit 135 Harksen v Lane N.O. [1997] ZACC 12; 1998 (1) SA 300 (CC); 1997 (11) BCLR 1489 (CC) at para 54. 136 Van der Merwe v Road Accident Fund [2006] ZACC 4; 2006 (4) SA 230 (CC); 2006 (6) BCLR 682 (CC) at para 49. 70 JAFTA J of argument from the parties, there is no rule that prohibits the Court from doing so. In fact on a number of occasions this Court proceeded to decide issues that were not considered by the courts below and where there was no argument presented in this Court. [199] In Gavric137 for example, the High Court against whose decision an appeal was pursued had not considered the meaning of a non-political offence used in section 4 of the Refugees Act138. And none of the parties before this Court had presented argument on that point and the minority had drawn this to the attention of the majority.139 The majority went ahead and determined what a non-political offence envisaged in the section means.140 [200] KwaZulu-Natal Joint Liaison Committee141 went a step further by not only deciding issues in respect of which there was no argument presented by the parties but disposed of the matter on the basis of a claim that was not pleaded. The applicant there had pleaded a contractual claim which during the hearing its senior counsel repeatedly made it clear that the applicant “stood or fell” by the contractual claim. In that case, having found that a contractual claim could not succeed,142 the majority proceeded to determine whether the applicant could succeed on the basis of an administrative law claim even though such a claim was not brought in terms of the Promotion of Administrative Justice Act143. The majority concluded that the administrative law claim was partially successful and ordered the Department to pay “the approximate amounts specified” in a particular departmental notice.144 137 Gavric v Refugee Status Determination Officer, Cape Town [2018] ZACC 38; 2019 (1) SA 21 (CC); 2019 (1) BCLR 1 (CC). 138 130 of 1998. 139 Gavric above n 137 at para 128. 140 Id at para 89-115. 141 KwaZulu-Natal Joint Liaison Committee v MEC for Education, Kwazulu-Natal [2013] ZACC 10; 2013 (4) SA 262 (CC); 2013 (6) BCLR 615 (CC). 142 Id at paras 35-6. 143 3 of 2000. 144 KwaZulu-Natal Joint Liaison Committee above n 141 at para 78. 71 JAFTA J / THERON J [201] The present is not such a matter. All the claims have been pleaded and were established in evidence. The only thing that was missing was argument in the written and oral submissions. However, counsel for AMCU had made it plain at the hearing that those claims were not abandoned. [202] In view of the principle of objective invalidity, it seems to me that this is one of those matters where it becomes necessary for the Court to determine the issues even though no argument was advanced. This is because a statute cannot have “limping validity, valid one day, invalid the next, depending upon changing circumstances.”145 Moreover, the invalidity of the impugned provision does not depend on the parties’ argument. If it infringes one of the rights relied on it became invalid the day it came into operation. This is the position regardless of the fact that it is challenged now.146 [203] For these additional reasons I support the order proposed in the first judgment. [204] I have had the pleasure of reading the judgments of my brothers Ledwaba AJ (first judgment), Froneman J (second judgment) and Jafta J (third judgment). I agree with the second judgment’s reasoning and order. The primary reason for this concurrence is simple: the ambit of section 23(1) of the Constitution, properly interpreted, does not include a right for an employee to be individually consulted in the context of a retrenchment dismissal. [205] This brief concurrence will deal with why, from a separation of powers perspective, it is appropriate to test section 189(1) of the LRA against a standard of rationality rather than one of reasonableness, and the importance of the proper interpretation of the Bill of Rights in this regard. It will also add to and supplement the 145 New National Party above n 100 at para 22. 146 Id. 72 THERON J explanation given in the second judgment as to why this Court should refrain from adjudicating the alleged limitations of the rights in sections 9(1) and 18 of the Constitution by section 189(1) of the LRA. Review standards of rationality and reasonableness [206] The doctrine of the separation of powers permits competent courts to intervene in legislation in limited circumstances – only when the evidence and arguments compel them to conclude that in terms of the Constitution, the Legislature has done wrong, or has not done enough.147 Courts must ensure that the Legislature acts in a constitutionally compliant manner. Where a legislative provision has the effect of limiting a right in the Bill of Rights, a competent court must determine whether the limitation is justifiable in terms of section 36 of the Constitution. Here, reasonableness is relevant to the judicial review of legislation.148 [207] Where, as in this case, no limitation of a right in the Bill of Rights has been established, a competent court may only review legislation on the basis that the impugned provision is not rationally connected to a legitimate purpose.149 This lower standard of rationality is “fundamental to the doctrine of separation of powers and to the role of courts in a democratic society”.150 A court would usurp the functions of the Legislature and violate the doctrine of the separation of powers if it were to apply a reasonableness standard of review to legislation in the absence of a limitation of a right in the Bill of Rights. [208] In my view, the proper interpretation of the ambit of rights in the Bill of Rights is crucial to ensuring that the Judiciary remains sensitive to the need to refrain from 147 Mwelase v Director-General, Department of Rural Development and Land Reform [2019] ZACC 30; 2019 (6) SA 597 (CC); 2019 (11) BCLR 1358 (CC) at para 53. 148 New National Party above n 100 at para 24. 149 Id. 150 Id. 73 THERON J undue interference with the functional independence of the Legislature.151 An unduly narrow interpretation of a right would inhibit a competent court from fulfilling its constitutionally mandated function of declaring any law that is inconsistent with the Constitution invalid to the extent of its inconsistency.152 An unduly expansive approach to the ambit of a right would, however, trigger a reasonableness review of an Act of Parliament beyond the constitutional limits of judicial authority. Alleged infringements of the rights in sections 9(1) and 18 of the Constitution [209] The third judgment finds that section 189 of the LRA unjustifiably limits the rights in sections 9(1) and 18 of the Constitution, in addition to those in section 23 of the Constitution. The second judgment points out that the parties canvassed only the section 23 infringement in their written submissions and during oral argument. This Court has repeatedly recognised that even when deciding a constitutional matter within its power, it may decline to decide the matter because the challenge is not warranted in the particular proceedings.153 [210] Section 34 of the Constitution guarantees the rights of the parties to have their dispute resolved in a fair hearing before a court.154 In my view, the key questions are 151 Economic Freedom Fighters v Speaker, National Assembly [2016] ZACC 11; 2016 (3) SA 580 (CC); 2016 (5) BCLR 618 (CC) at para 92. 152 Section 172 of the Constitution provides that: “(1) When deciding a constitutional matter within its power, a court— (a) must declare that any law or conduct that is inconsistent with the Constitution is invalid to the extent of its inconsistency; and (b) may make any order that is just and equitable, including— (i) (ii) an order limiting the retrospective effect of the declaration of invalidity; and an order suspending the declaration of invalidity for any period and on any conditions, to allow the competent authority to correct the defect.” 153 Public Protector v South African Reserve Bank [2019] ZACC 29; 2019 (6) SA 253 (CC); 2019 (9) BCLR 1113 (CC) at paras 245-8 and Merafong City v AngloGold Ltd [2016] ZACC 35; 2017 (2) SA 211 (CC); 2017 (2) BCLR 182 (CC) at para 37. 154 Section 34 of the Constitution provides that: 74 THERON J whether the respondents have been granted sufficient opportunity to address the alleged violations of sections 9(1) and 18 of the Constitution in these proceedings and whether this Court has had the benefit of full argument on this issue. The answers to these questions are pivotal in determining whether this Court should make a finding on this issue. And they stand to be answered in the negative. The third judgment correctly points out that these alleged violations were pleaded by the applicants. That being said, and despite their onus to prove their case, the applicants did not put up any facts or make any submissions to substantiate the bare allegations in their pleadings that section 189 unjustifiably limited sections 9(1) and 18 of the Constitution. In the circumstances, it would be inappropriate for this Court to adjudicate these issues in these proceedings.155 Conclusion [211] For these reasons, I agree with the second judgment that the appeal must be dismissed. “Everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum.” 155 This matter is wholly distinguishable from the decisions of this Court referred to in the third judgment in support of its proposed adjudication of the alleged infringements of sections 9(1) and 18 of the Constitution. 75 For the Applicants: For the First Respondent: For the Fourth Respondent: F Boda SC, R Itzkin instructed by LDA Attorneys Incorporated. A T Myburgh SC, M J van As instructed by Webber Wentzel. G Malindi SC, S Nhlapo instructed by the State Attorney, Pretoria. Second, Third and Fifth Respondents: Unrepresented.