The Workforce Group (Pty) Ltd v Motor Industry Bargaining Council

The Motor Industry Bargaining Council concluded an amending agreement on 17 September 2010 that placed restrictions on employers' power to utilise temporary employment services (labour brokers). The Minister of Labour extended this collective agreement to non-parties operating within the industry under section 32 of the Labour Relations Act 66 of 1995, publishing the notice in the Government Gazette on 28 January 2011. In August 2011, The Workforce Group (Pty) Ltd, an employment agency, applied to the High Court to declare certain provisions of the agreement regulating temporary employment unlawful and invalid. The agreement was initially to endure for three years until 31 August 2013 but was subsequently extended until 31 August 2014, and then again until 31 August 2016. However, the Labour Relations Amendment Act 6 of 2014 came into effect on 1 January 2015, introducing sections 198A-198D regulating temporary employment services, which rendered the challenged provisions obsolete.

• Whether restrictions on temporary employment services in the collective agreement were lawful
• Whether the impugned provisions were void for vagueness
• Whether the agreement was ultra vires the Bargaining Council's constitution
• Whether the provisions breached constitutional rights (freedom of association, freedom of trade/occupation/profession, fair labour practices, and just administrative action)
• Whether section 32 of the LRA (extension to non-parties) was constitutional
• Whether the appeal had become academic due to subsequent legislative amendments
• Who should bear the costs of an appeal that had been rendered moot

The appeal was struck from the roll with costs, including the costs of two counsel, to be paid by the appellant.

Where an appeal becomes academic due to supervening legislative amendments or other events, the appellant as dominus litis bears the responsibility to reconsider its position and take appropriate steps to limit further costs. An appellant who continues to prosecute an appeal after it has become apparent (or ought to have become apparent) that the matter is moot will be liable for costs. The duty to reconsider one's position arises when circumstances materially change such that there is no longer a live issue for determination, and failure to discharge this duty will result in an adverse costs order.

The court referenced the Constitutional Court's approach in JT Publishing, noting that there is no clearer instance of an issue becoming academic than when new legislation comes into operation rendering the challenged statute obsolete, leaving only historical interest. The court also observed that the parties to the collective agreement had anticipated legislative intervention, as evidenced by clause 3.7(8) which provided that current provisions would prevail 'until new legislation is promulgated to which all Parties shall comply.' This demonstrated the temporary and transitional nature of the collective agreement provisions.

This case establishes important principles regarding cost orders when appeals become moot due to supervening events or legislative amendments. It clarifies that an appellant, as dominus litis, bears responsibility for continuing to prosecute an appeal after it has become academic and has a duty to reconsider its position when circumstances change. The case reinforces that courts will not expend resources on academic disputes that have only historical interest. It also provides guidance on the application of cost principles in labour law matters where collective agreements are superseded by subsequent legislation.