IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
                 						CASE NO: 2020/7986

1. Reportable:  No
2. Of interest to other judges: No
3. Revised: Yes, 14 April 2020

____________________

In the matter between:
NATIONAL UNION OF METALWORKERS OF SOUTH AFRICA		 Applicant
and 	
LANXESS CHROME MINING (PTY) LTD				       Respondent 
Costs in a matter that has become moot pertaining to the constitutional right to food of persons unlawfully occupying a mine.

JUDGMENT
___________________________________________________________________
DE VILLIERS, AJ
[1]	This matter has become moot, only costs remain for decision. I am thankful to the legal representatives of the parties for well-prepared argument, heads of argument prepared under time pressure, and an interesting debate. My summary below will not do justice to that work. I also do not intend to summarise all the disputes. 
[2]	The applicant (“NUMSA”) and the respondent (“Lanxess”) are in a labour dispute:
[2.1]	On 13 February 2020 some members of NUMSA, commenced with an “unprotected strike” (as it is referred to in labour law), at Lanxess’s mine at Rustenburg;
[2.2]	NUMSA suggests that it has advised against the unprotected strike, and has tried to persuade the striking miners to return to work. It alleges that it disapproves of the unprotected strike and implies that it accepts that such a strike is in breach of the Rule of Law;
[2.3]	On 17 February 2020 some 150 (according to NUMSA) striking mineworkers unlawfully entered Lanxess’s mine at Rustenburg, and commenced to occupy it. Euphemistically this unlawful conduct is called a “sit-in” by NUMSA;
[2.4]	Lanxess had to cease mining operations;
[2.5]	On 18 February 2020 Lanxess obtained an interdict in the Labour Court against inter alia NUMSA and striking workers. The relief includes an order declaring the strike an “unprotected” strike, and interdicting some 270 workers from participating in it;
[2.6]	The date is unclear, but either on 18 February 2020, or shortly thereafter, NUMSA, with the consent of Lanxess, started to deliver food (to “pay for and supply meals”) to the miners who had occupied the mine. Such food allegedly consisted of “maize meal, minced meat and vegetables”. It turned out that, in fact, persons from the community supplied the food, not NUMSA;
[2.7]	On 27 February 2020 Lanxess stopped access for food delivery and cited alleged concerns about a lack of balance in the food actually delivered. It decided to supply pre-packed and sealed sachets of Phakamisa meal supplements. Later Lanxess raised further concerns about the smuggling of what it called “contraband” in the food supplied to the miners. It seems that a further reason for the change was to make the occupying miners’ stay unpleasant; 
[2.8]	NUMSA denied that Phakamisa, a sort of porridge when mixed with water, is anything more than a meal supplement, and in addition it allegedly tastes and smells unpleasant. It also later made out a case that it is not a balanced meal, specifically in as far as the recommended daily intake of protein and fibre is concerned;
[2.9]	On Friday 6 March 2020 NUMSA launched an urgent application in this court. It was answered on Monday 9 March 2020, and replied to on Tuesday 10 March 2020. On 11 March 2020 Fisher J granted an order by consent allowing access by NUMSA for three days to its members occupying the mine. NUMSA therefore achieved some success, but the matter was heard in urgent court where many of the decisions are holding orders, preventing harm, without a final decision on the merits;
[2.10]	NUMSA delivered a supplementary affidavit on Friday 13 March 2020. The matter came before me at lunchtime on Sunday 15 March 2020. NUMSA sought an order authorising it to continue to supply the workers occupying the mine with food;
[2.11]	NUMSA averred in that affidavit that it had health concerns. Its members allegedly complained of exhaustion, fatigue and weakness due to hunger. It described health issues experienced by some of its members;
[2.12]	I declined to hear oral testimony in answer to the supplementary affidavit, and indicated that I intend to make an interim order allowing the supply of food by NUMSA until I could hear the matter. The parties agreed to such an order and agreed on suggested times for the answer and reply. Costs were reserved;
[2.13]	Further affidavits were exchanged and I heard the matter on Thursday 19 March 2020 in the urgent court;
[2.14]	Before I delivered my judgment, I was advised that the occupying miners left the mine and that the matter has become moot. As indicated earlier, costs remain for determination.
[3]	NUMSA tried to walk a tightrope in this application between expressing its alleged disapproval of the conduct of its striking members, but at the same time defending their conduct by placing blame on Lanxess for the deteriorating relationship, based on alleged infractions since 2018. None of the alleged infractions is common cause, and none would justify the unlawful action. The effect of the relief sought before me would be for NUMSA to actively support the unlawful occupation of the mine. It avers that is motivations are humanitarian. 
[4]	NUMSA brought the matter to this court, it says, as this court has concurrent jurisdiction with the Labour Court in matters involving constitutional rights. Clearly the Labour Court would have been the best place to deal with the secondary disputes to the matter that has already served before it. It also would have a better knowledge of the mining industry and its laws. 
[5]	NUMSA relied on section 27(1)(b) of the Constitution, namely that “everyone has the right to have access to sufficient food and water” and specifically on Governing Body of the Juma Musjid Primary School & Others v Essay N.O. and Others. On this basis it sought the right to provide food to its members who unlawfully occupy the mine, at the unlawfully occupied property. The occupying miners had access to food as soon as they walked out of the mine. It was common cause that Lanxess had no constitutional duty to supply food to the occupying miners. It is therefore a narrow point, is the constitutional right available because Lanxess allowed the supply of food for a few days, and then stopped such provision? Juma Musjid Primary School held that the owner of the property had “a negative constitutional obligation not to impair the learners‘ right to a basic education.” Was the taking away of access to food under these circumstances a negative constitutional obligation equivalent to the closing of a school and thereby denying access to education? If so, were the occupying miners entitled to food underground? 
[6]	Juma Musjid Primary School case dealt with a public school conducted on private property. The MEC failed to conclude a lease agreement and the school was evicted from the private property. The Constitutional Court upheld the eviction as it found that a proper case has been made out that all learners would be accommodated at other schools. The court balanced the right to a basic education against property rights. 
[7]	NUMSA’s case rested on para 58 of Juma Musjid Primary School (footnotes omitted):
“[58] This Court, in Ex Parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution of the Republic of South Africa, made it clear that socio-economic rights (like the right to a basic education) may be negatively protected from improper invasion. Breach of this obligation occurs directly when there is a failure to respect the right, or indirectly, when there is a failure to prevent the direct infringement of the right by another or a failure to respect the existing protection of the right by taking measures that diminish that protection. It needs to be stressed however that the purpose of section 8(2) of the Constitution is not to obstruct private autonomy or to impose on a private party the duties of the state in protecting the Bill of Rights. It is rather to require private parties not to interfere with or diminish the enjoyment of a right. Its application also depends on the intensity of the constitutional right in question, coupled with the potential invasion of that right which could be occasioned by persons other than the State or organs of State.”
[8]	NUMSA had other grounds for the relief sought, including based on a contractual claim, relief under the mandament van spolie, and relief based on section 8 of the Occupational Health and Safety Act 85 of 1993, but these were weaker arguments. Ultimately in issue in this matter was a constitutional issue. 
[9]	In addition to its arguments on the issues raised NUMSA, Lanxess had defences that would have complicated matters further, defences pertaining to health and safety in mining operations. Undoubtedly the occupation takes place in an inherently high-risk environment, highly regulated inter alia by the Mine Health and Safety Act 29 of 1996.
[10]	have not had to decide the main issue and makes no determination in either party’s favour. In as far as NUMSA has achieved limited success with interim orders, such orders ordinarily ought to follow the result in the main application. It is probably true, as argued before me, that counsel’s life would be lot easier if all lay clients had “clean hands”. Life is messy. I know. Still I would baulk at awarding costs, at least indirectly, in favour of persons involved in unlawful conduct in occupying the mine. The relief sought would aid in that unlawful conduct. NUMSA and Lanxess advanced arguable constitutional points. Under these circumstances I am satisfied that I should apply Biowatch Trust v Registrar Genetic Resources and Others approach and order that each party should pay its own costs, even although the state is not a party to the litigation. 
[11]	Accordingly, I make the following order:
1.	Each party is to pay its own costs, including all reserved costs.
__________________
DP de Villiers AJ

Heard on:				15 and 19 March 2020
Delivered on:				14 April 2020 electronically, by e-mail
On behalf of the Applicant:		Adv I de Vos
Instructed by:			Cheadle Thompson & Haysom Inc
On behalf of the Respondents:	Mr A de Swardt
Instructed by:			De Swardt Myambo