Greathead v South African Commercial & Allied Workers Union (290/98) [2000] ZASCA 49; 2001 (3) SA 464 (SCA); (2001) 22 ILJ 595 (SCA) (29 September 2000)

Greathead v South African Commercial & Allied Workers Union (290/98) [2000] ZASCA 49; 2001 (3) SA 464 (SCA); (2001) 22 ILJ 595 (SCA) (29 September 2000)

The Supreme Court of Appeal held that the agency shop agreement between Metcash and the union did not comply with the express requirements of section 25(3) of the Labour Relations Act, as it failed to provide for non-compulsion of union membership, payment into a separate account, and restrictions on political contributions. The court rejected the respondent's arguments that substantial compliance or implied incorporation sufficed, and found that rectification was not competent where statutory formalities were lacking. The court further held that the issue of non-compliance could be raised for the first time on appeal, as the facts were common cause and no unfairness resulted. There was...

Citation
[2000] ZASCA 49
Parties
Appellant: Brian Courtney Greathead; Respondent: South African Commercial Catering & Allied Workers Union
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
29 September 2000
Case Number
290/98
Procedural Posture
Civil Appeal / Appeal From Witwatersrand Local Division
Outcome
Appeal upheld. The agency shop agreement is declared unenforceable.
Judges
F H Grosskopf, Nienaber, Streicher, Zulman, Melunsky
Legal Topics
Agency Shop Agreement, Statutory Formalities, Rectification, Waiver of Rights
Labour Law Civil Procedure Agency Shop Agreement Statutory Formalities Rectification Waiver of Rights

Case Brief

Summary, issues, holding and outcome

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Parties

Brian Courtney Greathead

Appellant

South African Commercial Catering & Allied Workers Union

Respondent

Procedural Posture

Civil Appeal / Appeal From Witwatersrand Local Division

Legal Issues

  1. 1 Whether the agency shop agreement complies with the formal requirements of section 25(3) of the Labour Relations Act.
  2. 2 Whether non-compliance with section 25(3) renders the agreement unenforceable.
  3. 3 Whether rectification of the agreement is competent where statutory formalities are not met.

Ratio Decidendi

The Supreme Court of Appeal held that the agency shop agreement between Metcash and the union did not comply with the express requirements of section 25(3) of the Labour Relations Act, as it failed to provide for non-compulsion of union membership, payment into a separate account, and restrictions on political contributions. The court rejected the respondent's arguments that substantial compliance or implied incorporation sufficed, and found that rectification was not competent where statutory formalities were lacking. The court further held that the issue of non-compliance could be raised for the first time on appeal, as the facts were common cause and no unfairness resulted. There was...

Court Disposition

Appeal upheld. The agency shop agreement is declared unenforceable.

Orders

  • The appeal is upheld with no order as to the costs of appeal.
  • The order of the court a quo is set aside and replaced by the following order: (a) The agency shop agreement entered into between the first and second respondents on 2 July 1997 is declared to be unenforceable. (b) The second respondent is ordered to pay the applicant’s costs, such costs to include those consequent...