REPUBLIC OF SOUTH AFRICA
IN THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
REPORTABLE
Case number : 223/98
In the matter between :
COIN SECURITY GROUP (PTY) LTD
APPELLANT
and
SA NATIONAL UNION FOR SECURITY
OFFICERS AND OTHERS
RESPONDENTS
CORAM:
F H GROSSKOPF, OLIVIER, SCOTT, PLEWMAN JJA
and FARLAM AJA
HEARD:
8 SEPTEMBER 2000
REASONS HANDED DOWN:
29 SEPTEMBER 2000
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REASONS FOR JUDGMENT
Appeal dismissed in terms of s 21A of Supreme Court Act 59 of 1959
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PLEWMAN JA:
[1] In this appeal counsel were, at the outset of the hearing and for reasons
which will presently be made clear, required to address argument on the preliminary
question of whether the appeal and any order made thereon would, within the
meaning of s 21A of the Supreme Court Act 59 of 1959, have any practical effect
or result.  After hearing argument on this issue the appeal was dismissed in terms
of s 21A and appellant was ordered to pay the costs of the appeal.  It was indicated
when so ordering that the Court’s reasons would be handed down later.  The
reasons follow.
[2] The manner in which this question arose is as follows.  The  appeal is against
an order made on the return day of a rule nisi discharging the rule by setting it
aside.  Appellant is a company carrying on business in the security industry
providing guard services and an asset transfer service.  The respondents were
originally fifty five persons employed by its asset transfer division and the registered

trade union to which they belonged.  Only some now remain parties to the litigation.
How this occurred and why only some are now involved is not relevant to the
appeal.
[3] A dispute arose between appellant and respondents in January 1997.  This
led to a strike.  Appellant contended (and contends) that this was an unprotected
strike.  In the course thereof certain of the respondents unlawfully occupied
appellant’s premises.  There were also incidents of assault and intimidation and a
blockading of the entrance to appellant’s premises.  Appellant thereupon
approached the Cape of Good Hope Provincial Division on an urgent basis and on
16 January 1997 obtained an order evicting the persons who had occupied its
premises and coupled with this a rule nisi operating as an interim interdict
restraining respondents from committing or perpetrating further acts of the nature
referred to above.
[4] Effect was given to the eviction order but the return day of the rule was

extended by various orders (it seems by consent).  The matter was finally argued
in October 1997 and the judgment which is appealed against was delivered on 31
October 1997 with the result indicated.  The court’s order is not clear.  It must have
been intended to deal only with that part of the original order which was included
in the rule nisi.  The main point taken in opposition to the confirmation of the rule
was a challenge to the jurisdiction of the High Court on the ground that in terms of
the Labour Relations Act 66 of 1995 the Labour Court (unlike its predecessor - the
Industrial Court) exercised an exclusive jurisdiction in matters of this nature.  The
objection was upheld by the court a quo.  It granted leave to appeal to this Court.
[5] It is also necessary to refer to certain other events (these being common
cause before this Court).  Not only were those respondents who had unlawfully
occupied appellant’s premises evicted but on 17 January 1997 all the individual
respondents were formally dismissed.  This is referred to in the replying affidavits
(eventually) filed in the matter.  Thereafter the validity of these dismissals was

challenged in the Labour Court (re-instatement was sought) and finally held by the
Labour Appeal Court to have been fair and accordingly legal.  (See Coin Security
Group (Pty) Ltd vs Adams and Others [2000] 4 BLLR 371 (LAC).)  The result is
that all the material disputes between the parties were as a result of the Labour
Appeal Court’s finding finally resolved.
[6] On 26 June 2000 this Court addressed a directive to the parties calling for
further heads of argument. These were duly filed.  In appellant’s additional heads
of argument the facts above set out are recorded.  It is also conceded that the order
sought by appellant in the court a quo will, apart from costs, “no longer have any
practical effect inter partes”.
[7] The purpose and effect of s 21A has been explained in the judgment of
Olivier JA in the case of Premier, Provinsie Mpumalanga en’n Ander v
Groblersdalse Stadsraad 1998 (2) SA 1136 (SCA).  As is there stated the section
is a reformulation of principles previously adopted in our courts in relation to

appeals involving what were called abstract, academic or hypothetical questions.
The principle is one of longstanding.  In the case of Geldenhuys and Neethling vs
Beuthin 1918 AD 426 at 441 (as an example) it was said as follows by Innes CJ:
“After all, Courts of Law exist for the settlement of concrete
controversies and actual infringements of rights, not to pronounce
upon abstract questions, or to advise upon differing contentions,
however important.”
This is a principle which is common also to other systems - where the doctrine of
binding precedent is followed.  It has particular application in courts of appeal.  The
attitude of the House of Lords is illustrative of this.  What that court has held is that
it is an essential quality of an appeal (such as may be disposed of by it) that there
should exist between the parties to the appeal a matter “in actual controversy which
(the court) undertakes to decide as a living issue”.  See Sun Life Assurance Co of
Canada vs Jervis [1944] 1 All ER 469 (HL) at 471 A-B.  This phrase accurately
states the standpoint of our courts.  It is a principle consistently adopted by this

Court and the other courts in the Republic.
[8] Counsel for appellant (as has been stated) conceded that if the matter were
viewed inter partes the appeal should be dismissed.  But he sought to argue that
the approach to the question should not be so narrowly focussed.  In large measure
this argument was based on what was, in my view, a fruitless analysis of the
reported facts in the case of Natal Rugby Union vs Gould 1999 (1) SA 432
(SCA).  However, every case has to be decided on its own facts.  It follows that
efforts to compare or equate facts of one case to that of another are unlikely to be
of assistance.  The section confers a discretion on this Court.  President, Ordinary
Court Martial and Others vs Freedom of Expression Institute and Others 1999
(4) SA 682 (CC) at p 687 para [13].  In the light of this fact a comparison of the
type urged upon us is not appropriate.  But there is something which I must add.
Firstly the judgment in the Natal Rugby case lays down no new or different criteria
from those adopted in the Groblersdal case.  I was party to the decision in the

Natal Rugby case.  It must, I think, be said that given the factual setting and, in
particular, the uncertainty which arose in the context of the peremption argument
(see p 443 F - 444 G) the members of the union had, as a result of the litigation,
been left “disturbingly but understandably divided” with regard to the meaning and
effect of their constitution.  This was felt to be “living issue” - sufficiently so for the
exercise of the court’s discretion in the manner in which it was exercised.  To
suggest, as counsel did, that the facts reveal a different approach to that taken in the
Groblersdal case is not correct.
[9] It was also argued that a decision by this Court may resolve possible future
problems in other cases.  In the heads of argument this is clearly stated, with
reference to certain reported decisions, as follows:
“The practical result of the aforesaid judgments is that any employer,
including the appellant, who is confronted by unlawful conduct by his
employees in the course of a strike, protected or unprotected, cannot
approach the High Court for an interdict to protect himself against
such conduct, regardless of whether such employer knows or does

not know the purpose his employees are attempting to achieve by
conducting themselves in such unlawful manner and regardless of
what the relationship between the unlawful conduct and the strike, if
any, is.  Such an employer would, in view of these judgments, almost
certainly have to approach the Labour Court for the required relief,
but would then be faced with the risk of the employees or their union
contending that the Labour Court does not have jurisdiction because
the conduct complained of was not conduct in contemplation or in
furtherance of the strike in which they are participating.”
A more striking demonstration of a hypothetical situation would be difficult to find.
It could also scarcely be more appositely answered than by the following extract
from the speech of Lord Bridge of Harwich in the case of Ainsbury v Millington
[1987] 1 All ER 929 (HL) at p 930 g -
“In the instant case counsel for the appellant has submitted that
Viscount Simon LC’s principle should be confined in its application
to cases where the point of law at issue is peculiar to the facts of the
case or arises on the construction of particular documents and should
not inhibit the House from resolving, even in the absence of any live
issue between the parties, a question of law of general importance
which, as is said to be the case here, different decisions of the Court
of Appeal have left in doubt.  Assuming without deciding that this is
such a case, I cannot see that it makes any difference, nor can I

accept that the principle as stated by Viscount Simon LC is to be
limited as suggested.  In the Sun Life case the outcome of the appeal,
if the House had been prepared to entertain it, would at least have
been of some concern to the appellant, since the ruling it sought
would presumably have affected its obligations to other policy
holders.  In the instant case neither party can have any interest at all in
the outcome of the appeal.  Their joint tenancy of property which was
the subject matter of the dispute no longer exists.  Thus, even if the
House thought that the judge and the Court of Appeal had been wrong
to decline jurisdiction, there would be no order which could now be
made to give effect to that view.  It has always been a fundamental
feature of our judicial system that the courts decide disputes between
the parties before them; they do not pronounce on abstract questions
of law when there is no dispute to be resolved.”
[10] There is a further feature of  s 21A to which attention has perhaps not been
pertinently directed in earlier decisions.  In terms of the section the question is
whether “the issues are of such a nature that the judgment or order sought will have
no practical effect or result”.  The words “judgment or order” reflect the
longstanding concept adopted in our courts that only an order is appealable.
Heyman vs Yorkshire Insurance Co Ltd 1964 (1) SA 487 (A).  It is an equally well

established rule that our courts do not lightly (otherwise than in the now often
adopted practice flowing from the application of Rule 33(4) or instances where
further evidence is to be led) decide cases on a piecemeal basis.  Botha vs A A
Mutual Insurance Association Ltd and Another 1968 (4) SA 485 (A) at 489 F-H.
Appellant in its main heads sought an order dismissing “the respondents’ point in
limine” and remitting the case to the High Court.  The effect thereof would be that
the interdict sought in terms of the rule nisi would then have to be finally decided.
[11] It is questionable to say the least that the present case can be said to fall into
the category of cases where remittal is possible.  It is, however, unnecessary to
consider the matter further because it could not be more clearly demonstrated that
the “order sought” (whether in this Court or by remittal) would “have no practical
effect or result”.  The Court would be asked to confirm a rule which interdicted, for
the future, acts committed in the course of an industrial dispute which was finally
resolved between the parties by the dismissals in 1997 and in which all the

perpetrators have long since gone their separate ways.
[12] For the aforegoing reasons the appeal was dismissed.  Since the respondent
was not brought before this Court as a willing party no cause was seen to depart
from the normal rule as to costs which were accordingly ordered to follow the
result with the consequence that appellant has to pay them.
............................
C PLEWMAN JA
CONCUR:
F H GROSSKOPF JA)
OLIVIER JA)
SCOTT JA)
FARLAM AJA)