Shoprite Checkers (Pty) Ltd v Commission for Conciliation Mediation and Arbitration and Others (J1404/06) [2006] ZALC 87; [2007] 5 BLLR 473 (LC); (2006) 27 ILJ 2681 (LC) (15 September 2006)

Shoprite Checkers (Pty) Ltd v Commission for Conciliation Mediation and Arbitration and Others (J1404/06) [2006] ZALC 87; [2007] 5 BLLR 473 (LC); (2006) 27 ILJ 2681 (LC) (15 September 2006)

The commissioner failed to establish the jurisdictional prerequisite that Shoprite's refusal to permit in-store picketing was unreasonable before exercising discretion to allow such picketing. SACCAWU bore the onus of proving unreasonableness, which was not discharged. The commissioner did not provide a fair hearing...

Source-derived case information.

Citation
[2006] ZALC 87
Parties
Applicant: Shoprite Checkers (Pty) Ltd; Respondent: Commission for Conciliation, Mediation & Arbitration; Respondent: Commissioner W Everett N.O.; Respondent: SACCAWU
Court
Labour Court
Jurisdiction
South Africa
Judgment Date
15 September 2006
Case Number
J1404/06
Procedural Posture
Review Application / Judgment on Review and Interdict
Outcome
The commissioner's decision establishing picketing rules is set aside. The matter is referred back to the CCMA for fresh determination by a different commissioner. The interim interdict is extended and costs are reserved.
Judges
D Pillay
Legal Topics
Picketing Rules, Protected Strike, Review of Ccma Decision, Onus of Proof, Jurisdictional Prerequisite
Labour Law Civil Procedure Picketing Rules Protected Strike Review of Ccma Decision Onus of Proof Jurisdictional Prerequisite

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Summary, issues, holding and outcome

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Parties

Shoprite Checkers (Pty) Ltd

Applicant

Commission for Conciliation, Mediation & Arbitration

Respondent

Commissioner W Everett N.O.

Respondent

SACCAWU

Respondent

Procedural Posture

Review Application / Judgment on Review and Interdict

Legal Issues

  1. 1 Whether the commissioner established the jurisdictional prerequisite that the employer's refusal of in-store picketing was unreasonable before permitting in-store picketing.
  2. 2 Whether the commissioner followed a fair procedure in establishing picketing rules, including giving parties an opportunity to be heard.
  3. 3 Whether the picketing rules established by the commissioner were justifiable and rational.

Ratio Decidendi

The commissioner failed to establish the jurisdictional prerequisite that Shoprite's refusal to permit in-store picketing was unreasonable before exercising discretion to allow such picketing. SACCAWU bore the onus of proving unreasonableness, which was not discharged. The commissioner did not provide a fair hearing or test her opinion with the parties before establishing the rules, violating procedural fairness. The commissioner's decision was therefore fatally flawed and must be set aside. The matter is referred back to the CCMA for fresh determination of picketing rules by a different commissioner. The court does not make findings on the reasonableness of Shoprite's refusal or regulate...

Court Disposition

The commissioner's decision establishing picketing rules is set aside. The matter is referred back to the CCMA for fresh determination by a different commissioner. The interim interdict is extended and costs are reserved.

Orders

  • The rule in paragraph 1.1 of the order granted on 11 August 2006 is extended until substituted by fresh picketing rules agreed between Shoprite and SACCAWU or established under the auspices of the CCMA in terms of section 69 of the LRA.
  • The rule granted in terms of paragraphs 1.2 to 1.5, inclusive, is confirmed.