Union for Police Security and Corrections Organisation v South African Custodial Management (Pty) Ltd and Others

The applicant, a registered trade union, represented employees working at the Kutama Sinthumule Correctional Centre, operated through a public-private partnership by the first and second respondents. An organisational rights agreement between the applicant and the employer respondents was concluded in August 2015 and was still operative when, following notice of termination, the applicant was denied access to the correctional centre to exercise organisational rights and to meet members after hours. The applicant alleged that this denial infringed its constitutional rights under sections 23 and 17 of the Constitution. It further claimed that a written response stating that its application for access was disapproved and that the organisational rights agreement was cancelled was defamatory. Additional claims were made for extensive damages on behalf of members for psychological harm. The respondents raised exceptions to the latest amended particulars of claim, including that direct reliance on the Constitution was barred by the principle of subsidiarity and that the defamation claim disclosed no cause of action.

Leave to appeal was refused; the costs orders of the High Court and Supreme Court of Appeal were set aside; each party was ordered to pay its own costs in all courts.

The judgment reaffirms the constitutional principle of subsidiarity in labour disputes, emphasising that litigants must rely on the Labour Relations Act when it gives effect to section 23 rights. It also clarifies the limits of the Constitutional Court’s jurisdiction, cautioning against dressing non-constitutional disputes in constitutional terms, and confirms the protective application of the Biowatch costs principle even where constitutional claims ultimately fail.