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

The applicant is a registered trade union with members employed by the first and second respondents (employer respondents), who are private companies providing prison services at Kutama Sinthumule Correctional Centre. An organisational rights agreement existed between the parties, which was due to terminate after a three-month notice period. Before the notice period expired, the respondents denied the applicant's request for access to the workplace to exercise organisational rights. The applicant issued proceedings claiming: (1) relief under section 38 of the Constitution for alleged infringement of constitutional rights in sections 23(1) and (2) (fair labour practices and workers' rights) and section 17 (assembly rights); (2) R1 million in damages for defamation based on the respondents' response stating "The application is disapproved. ORA (Organisational Rights Agreement) is cancelled"; and (3) damages totaling R109.08 million on behalf of 540 members for psychological harm allegedly caused by the denial of access. The respondents excepted to the amended particulars of claim on grounds that: (1) the principle of subsidiarity precluded direct reliance on the Constitution instead of the Labour Relations Act; (2) certain claims did not disclose a cause of action; and (3) the alleged defamatory words were neither per se defamatory nor capable of bearing defamatory meaning.

• Whether the principle of constitutional subsidiarity precluded the applicant from directly relying on sections 23 and 17 of the Constitution instead of pursuing remedies under the Labour Relations Act
• Whether the particulars of claim disclosed a cause of action in respect of the defamation claim, particularly whether the words complained of were capable of bearing defamatory meaning
• Whether the High Court was functus officio on the question of defamatory matter, having previously granted an amendment application
• Whether the Constitutional Court had jurisdiction to hear the appeal, particularly regarding the defamation claim
• Whether costs orders against the applicant in the lower courts were appropriate in light of the Biowatch principle

Leave to appeal refused save for setting aside of costs orders. The costs orders granted by the High Court (Limpopo Division, Thohoyandou) and Supreme Court of Appeal were set aside. Each party ordered to pay their own costs in the High Court, Supreme Court of Appeal and Constitutional Court.

The binding principles established are: (1) The principle of constitutional subsidiarity requires litigants to first rely on legislation enacted to give effect to constitutional rights before directly invoking constitutional provisions, particularly where the Labour Relations Act provides mechanisms to protect workplace access rights under section 23 of the Constitution. (2) For the Constitutional Court's jurisdiction to be engaged, a party must demonstrate not merely that constitutional rights are implicated, but how a constitutional lens would materially affect the determination of the issue - "an issue does not become a constitutional matter merely because an applicant calls it one". (3) The Biowatch costs principle applies where respondents are acting as organs of state and the applicant consistently raises constitutional issues, even if some claims are questionable, provided the applicant does not stray beyond the protection afforded by raising matters of public interest in constitutional litigation.

The Court made several non-binding observations: (1) Nothing in the circumstances stopped the applicant from enforcing compliance with the organisational rights agreement through seeking an interdict, mandamus or other suitable relief without directly invoking constitutional provisions. (2) The organisational rights agreement itself provided for dispute resolution mechanisms through the CCMA, which could have been utilized. (3) Given that only three months remained on the agreement, the applicant could have sought to enforce it by way of urgency. (4) While the Court did not decide the publication point raised in the third exception (whether internal communication within a company constitutes publication for defamation purposes), the respondents did not press this point in oral argument. (5) The Court noted but did not elaborate on how the rights to dignity, privacy, assembly and fair labour practices might bear relevance to the defamation claim, finding the applicant provided no explanation for their relevance.

This judgment clarifies the application of the principle of constitutional subsidiarity in the labour law context, confirming that litigants must first exhaust remedies available under legislation enacted to give effect to constitutional rights (such as the Labour Relations Act) before directly invoking constitutional provisions. It also reinforces jurisdictional requirements for the Constitutional Court, emphasizing that matters do not become constitutional merely by assertion - applicants must demonstrate how constitutional interpretation would materially affect the outcome. The case provides guidance on when the Biowatch costs principle applies to cases involving private entities acting as organs of state and where constitutional issues are raised, even if ultimately unsuccessful. The judgment demonstrates the Court's approach to access to the workplace disputes and the interaction between statutory labour rights and constitutional rights.