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402 Chapter 17
the binding basis of its decisions in all cases in which it has assumed
jurisdiction. 26
He also cites a broad array of contradictory administrative law judgments in
the lower courts as evidence of the deleterious consequences of
Constitutional Court judgments so thinly reasoned that they lead to
contradictory outcomes in the lower courts. 27 Cameron J’s critique –
occurring as it does in his last judgment on the Supreme Court of Appeal –
is subtly cast: The Supreme Court of Appeal cannot be seen to remonstrate
(too often) the Constitutional Court on constitutional matters.
Institutional comity demands a muted response.
Justice O’Regan’s minority judgment in CUSA v Tao Ying Metal
Industries (Pty) Ltd; Commission for Conciliation, Mediation and Arbitration and
The Metal and Engineering Industries Bargaining Council provides further grist
for the mill. 28 The majority justified its ‘use’ of constitutional values to
dispose of the matter in a single sentence at the very end of the judgment.
Ngcobo J wrote:
In my view, the meaning preferred in this judgment accords better with the values
of our Constitution. This is so because, on the facts of this case, a labour regime
that enabled the greater exploitation of black people in the homelands as part
of the apartheid scheme, to the detriment of the workers in these areas, would,
on the employer’s interpretation, be kept in force for longer than the
interpretation preferred in this judgment. 29
O’Regan J has two primary complaints about the majority’s rather loose use
of ‘values’ to determine outcomes, especially when it is not even clear that
a constitutional matter has been raised. Justice O’Regan first notes:
In this case, the primary dispute insofar as it relates to the bargaining council
agreement turns on whether the wage provisions of the 1998 Main
Agreement apply to the employer or whether the exemption granted on 7 April
1997 exempts the employer from those provisions. This does not seem to me
to raise a constitutional matter. There is no provision in the Constitution
which is directly relevant to the interpretation of either the 1998 Main
Agreement or the exemption; nor can it be said that either of the
interpretations for which the parties contend gives greater or lesser effect to
the provisions of the Bill of Rights. I should add that the exemption itself at
which the interpretive debate is really directed is not ‘legislation’ that falls to
be interpreted in a manner consistent with the spirit, purport and objects of
the Bill of Rights. Ngcobo J suggests that the enforcement of collective
26
In True Mhadi (n 25 above) para 102 fns 52 & 53, Cameron J cites, in support of his claim,
‘Constitution chapter 1, founding provisions, sec 1 – the Republic of South Africa is
founded on values that include… (c) Supremacy of the Constitution and the rule of
law’… and Woolman “The amazing, vanishing Bill of Rights” (2007) 124 SALJ 762 -
794’.
27 True Mhadi (n 25 above) para 102, n 53.
28
2009 2 SA 204 (CC), 2009 1 BCLR 1.
29 CUSA (n 28 above) para 103 (my emphasis).