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[2020] ZALAC 45
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Association of Mineworkers and Construction Union and Others v Anglogold Ashanti Limited t/a Anglogold Ashanti (JA43/2019) [2020] ZALAC 45; (2020) 41 ILJ 2763 (LAC) (1 September 2020)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
LAC
Case No: JA43/2019
In
the matter between:
ASSOCIATION
OF MINEWORKERS AND
CONSTRUCTION
UNION
First Appellant
EMPLOYEES
LISTED IN ANNEXURE “A”
TO
THE NOTICE OF MOTION (JA20/19)
Second Appellant
EMPLOYEES
LISTED IN ANNEXURE “A”
TO
THE NOTICE OF MOTION (JA24/19)
Third Appellant
INDIVIDUALS
LISTED IN ANNEXURE “A”
TO
THE NOTICE O MOTION (J430/19)
Fourth Appellant
THE
PERSONS WHOSE NAMES APPEAR
ON
ANNEXURE “A1” TO THE NOTICE OF
MOTION
(J431/19)
Fifth Appellant
EMPLOYEES
LISTED IN ANNEXURE “A”
TO
THE NOTICE OF MOTION (JA32/19)
Sixth Appellant
EMPLOYEES
LISTED IN ANNEXURE “A”
TO
THE NOTICE OF MOTION (JA38/19)
Seventh Appellant
EMPLOYEES
LISTED IN ANNEXURE “A”
TO
THE NOTICE OF MOTION (J439/19)
Eight Appellant
EMPLOYEES
LISTED IN ANNEXURE “A”
TO
THE NOTICE OF MOTION (J440/19)
Ninth Appellant
MEMBERS
OF AMCU EMPLOYED BY
THE
APPLICANT
(J442/19)
Tenth Appellant
MEMBERS
OF AMCU EMPLOYED BY
THE
APPLICANT (J444/19)
Eleventh Appellant
and
ANGLOGOLD
ASHANTI LIMITED t/a
ANGLOGOLD
ASHANTI
First Respondent
LONMIN
PLATINUM COMPRISING
WESTERN
PLATINUM LIMITED AND
EASTERN
PLATINUM LIMITED t/a LONMIN
Second Respondent
RUSTENBURG
PLATINUM MINES LIMITED
t/a
RUSTENBURG PLATINUM
Third Respondent
HARMONY
GOLD MINING COMPANY
LIMITED
t/a HARMONY GOLD
Fourth Respondent
VILLAGE
MAIN REEF (PTY) LTD, TAU
LEKOA
(PTY) LTD AND KOPANONG (PTY) LTD
t/a
VILLIAGE MAIN
REEF
Fifth Respondent
NORTHAM
PLATINUM LIMITED t/a
NORTHAM
PLATINUM
Sixth Respondent
MARULA
PLATINUM (PTY) LTD t/a
MARULA
PLATINUM (PTY) LTD
Seventh Respondent
IMPALA
PLATINUM LIMITED t/a
IMPALA
PLATINUM
Eight Respondent
GLENCORE
OPERATIONS SA (PTY) LTD
Ninth Respondent
BUSHVELD
VAMETCO ALLOYS (PTY) LTD
Tenth Respondent
Heard:
20 August 2020
Delivered:
01 September 2020
Summary:
Appeal—To
Labour Appeal Court---Mootness---S16(2)
(
a
)
(i)
of
Superior Courts
Act
10 of 2013
---Principles applicable---When appeal court will
consider appeal despite mootness---Interpretation of
s 66(2)
---Court
will not entertain an appeal with regard to settled point of law.
Appeal dismissed with costs.
Practice
and procedure— Mootness---16(2)
(a)
(i)
of Superior Courts
Act
10 of 2013
----Principles applicable---When appeal court will
consider appeal despite mootness--- Interpretation of
s 66(2)
---Court
will not entertain an appeal with regard to settled point of
law.
Coram:
Davis JA, Coppin JA and Kathree-Setiloane AJA
JUDGMENT
DAVIS
JA
Introduction
[1]
When should a court hear an appeal in relation to a matter which
the
parties to the dispute have agreed has been rendered moot?
Section
16(2)(
a
) of the
Superior Courts Act 10 of 2013
provides the
statutory answer:
(i)
When at the hearing of an appeal the issues are of such a nature
that
the decision sought will have no practical effect or result, the
appeal may be dismissed on this ground alone;
(ii)
Save under exceptional circumstances, the question when a decision
would
have no practical effect or result is to be determined without
reference to any consideration of costs.
[2]
It is common cause that the dispute between the parties has long been
resolved. Hence
a decision of this Court will no longer have any
practical effect. Thus the only question which arises for
determination is whether
there are exceptional circumstances which
dictate that this Court should entertain the merits of the appeal.
Factual
matrix
[2]
Following a series of disputes on 19 November 2018, the first
appellant
issued Sibanye Gold Limited t/a Sibanye Still Water
(Sibanye) with a 48-hour strike notice. Its members then commenced
with a protected
strike in terms of the strike notice on 21 November
2018. This primary strike continued until April 2019.
[3]
On 22 February 2019, first appellant issued a notice of secondary
strike action to the first, second, fourth, fifth, sixth, seventh and
eight respondents; on 21 February 2019, it issued a secondary
strike
notice to the ninth and tenth respondents. All of the respondents are
party to the Mineral Council South Africa (the Mineral
Council). The
strike notices indicated that the secondary strike would be in
support of the protected strike at Sibanye and related
to a dispute
over wages and other conditions of employment. On the basis of these
notices, the secondary strike was to commence
on 28 February 2019 and
continue for the full duration of the primary strike. Subsequent
thereto, the first appellant clarified
the position, namely that the
strike was to continue for a period of seven days from 28 February
2019 to 7 March 2019.
[4]
Following these notices, the nine respondents all launched separate
urgent applications seeking to interdict appellants from initiating
such strike action at their respective operations and to declare
the
proposed secondary strike to be unprotected.
[5]
On 15 March 2019, Prinsloo J, sitting in the Court
a quo
,
after a carefully considered judgment ordered that the secondary
strike in respect of all of the respondents be declared to be
an
unprotected strike. There was no order as to costs. Although the
application for leave to appeal was dismissed with costs on
27 April
2019, the first appellant was successful in its petition to this
Court which granted leave to appeal on 20 August 2019.
[6]
Notwithstanding that the primary strike at Sibanye Gold was settled
on 17 April 2019 which in itself put paid to the secondary strike,
appellants have persisted with their appeal against the orders
granted by the court
a quo
.
[7]
The appellants thus have approached this Court, notwithstanding that
there is no live dispute between the parties on the basis that
exceptional circumstances, as provided for in s16 (2)(a)(ii) of
the
Superior Court Act, exist so that this Court should consider the
judgment and order of the court
a quo
in order to declare that
the nature and extent of the secondary strike was reasonable. In
essence, the appellants contend that
the judgment, if it stands, sets
out law that will have clear consequences on the future manner in
which secondary strikes may
lawfully be conducted.
[8]
It is for this reason that it is now necessary to consider whether
exceptional circumstances as set out in
s 16
(2) (a) of the
Superior
Courts Act do
exist which would justify the consideration of the
merits of this appeal.
Appellants’
arguments
[9]
Mr Boda, who appeared together with Ms Collet, submitted that there
were significant reasons for this Court exercising a discretion to
hear this appeal. In the first place, he contended that
the
dispute regarding secondary strikes turned on the correct
interpretation of s 66 (2) of the Labour Relations Act 66 of 1995
(LRA) and, in particular, the question as to whether, for the
purposes of this section, the court should group together a
collection
of secondary employers to assess their combined effect of
the secondary strike upon the primary employer.
[10]
The Court
a quo
held that the factual enquiry enjoined by s 66
(2)(
c
) of the LRA concerned the weighing up of two fundamental
factors, namely the reasonableness of the nature and extent of the
secondary
strike which meant examining the effect of the strike on
a
secondary employer together with
the effect of the nature and
extent of the secondary strike on the business of the primary
employer. For this reason, Prinsloo
J held:
‘
This factual
enquiry does not permit the grouping together of a collection of
secondary employers in a specific industry and assessing
what the
combined effect of a broader industry the secondary strike would have
on the primary employer. Such an approach will ignore
a critical
question namely; the effect the secondary strike may have on the
business of the primary employer in relation to the
secondary
employer, which calls for consideration of the facts and an
assessment of factors relevant to each secondary employer.
To
do differently would deprive each single secondary employer of the
protection afforded to them by s 66 (2)(
c
) of the LRA. `
[11]
Mr Boda submitted that this court was required to make a
determination as to whether
the enquiry was restricted to a balancing
of the effect on a single secondary employer (as opposed to a group
of secondary employers).
In turn, the effect of the secondary strike
upon the primary employer went to the heart of the constitutional
right to strike and
the reach of the right to engage in secondary
strike action.
[12]
Mr Boda also submitted that the court
a quo
had, in the
formulation of the correct test, incorrectly overemphasised the harm
caused to the second employer. In this connection,
the court
a quo
had held:
‘
Although it was
held in SALGA 1 that the disruptions of services and economic loss
are not factors that rank highly when considering
the legitimacy of
industrial action and that those are rather inevitable consequence
which underpins the purpose of strike action
in a democratic society,
I am of the view that the economic loss to be suffered by the
secondary employers should be considered
with due regard to the
industry within which the strike is to happen and it is a factor that
should be ranked highly when considering
the proportionality of the
impact of the secondary strike on the business of the secondary
employers…’
[13]
Mr Boda submitted that in this passage of the judgment, the court had
incorrectly
interpreted the test as contained in s 66 (2)(
c
).
In his view, this section directed attention to the possible as
opposed to the probable or definite direct or indirect effects
that
the secondary strike may have on the business of the primary
employer. In addition, Mr Boda submitted that this factor t should
be
given far greater consideration in the proportionality inquiry as
compared to the harm caused to the secondary employer.
[14]
In summary, appellants’ case was that this case raised a
unique set of
facts which called into question the evaluation of a
secondary strike which was targeted against a range of secondary
employers.
These facts called for a definitive answer from this Court
which would bring clarity to a critical aspect of strike action,
namely
the secondary strike which was targeted against a multiplicity
of secondary employers.
[15]
In
Qoboshiyane NO v Avusa Publishing Eastern Cape (Pty) Ltd
2013 (3) SA 315
(SCA) at para 5 Wallis JA provided guidance as to the
test to be followed with regard to hearing an appeal of this kind:
‘
The disclosure of
the report means that any judgment or order by this court will have
no practical effect or result as between the
parties. In the
circumstances this court may dismiss the appeal on that ground alone.
The court has a discretion in that regard
and there are a number of
cases where, notwithstanding the mootness of the issue as between the
parties to the litigation, it has
dealt with the merits of an appeal.
With those cases must be contrasted a number where the court has
refused to deal with the merits.
The broad distinction between the
two classes is that in the former a discrete legal issue of public
importance arose that would
affect matters in the future and on which
the adjudication of this court was required, whilst in the latter no
such issue arose.’
[16]
This Court can obtain further guidance with regard to when it should
exercise its
discretion from its judgment in
Sun International Ltd
v SA
Commercial
Catering & Allied Workers Union
(2017) 38 ILJ
1799 (LAC). Following a strike, the appellant, in that case, had
persisted with a lockout and the employment of replacement
labour. As
a result of an application, the Labour Court granted an interdict
against the appellant from continuing to use replacement
labour after
the strike had ended. An appeal was lodged against this decision but
by this time the wage dispute had been settled.
[17]
In
Sun International
, appellant’s counsel argued that
the appeal, notwithstanding that the dispute had been settled, raised
a discreet legal issue
being the interpretation of s 76(1)(b) of the
LRA. He buttressed his argument with the further submission that the
interpretation
of the section held considerable importance for the
labour community at large. In rejecting this argument and thereby
finding that
there was no basis to entertain the merits of the
appeal, the court said the following at paras 20-21:
‘
The dispute no
longer live between the parties and therefore does not deserve the
attention of this court. When a live dispute triggers
the application
of s 76 (1) (
b
) of the LRA, the Labour Court and/or this court
will doubtless deal with the application of the section through the
prism of the
factual matrix confronted at the time.
The appellant has in
effect asked for an advisory opinion as to future conduct. The
appellant does not represent the broader
labour law community nor did
any other party seek to join as an amicus in order to provide further
information or argument to this
court. There was a dispute between
two parties and that matter has been resolved. It is not a case which
should be heard by this
court because it falls within the doctrine of
mootness as I have outlined it. There is therefore no basis by which
to decide the
interpretation question relating to s 76 (1) (
b
)
of the LRA.’
Evaluation
of appellants’ argument
[18]
The first argument raised by Mr Boda concerned the interpretation of
s 66 (2) of
the LRA and the extent to which a judgment of this court
is required in order to bring clarity to the position as to whether
the
evaluation of a secondary strike concerns each single employer or
should take account of a combination of employers. The problem
with
this submission is that both the Labour Court and this Court have
considered this particular section in carefully written
judgments.
[19]
In
SALGA v SAMWU
[2007] ZALC 43
;
[2008] 1 BLLR 66
(LC) at para 12 Van Niekerk
J considered this section and the test which is required as a result
by way of a reading of the text
thereof, The learned judge held
at para 16::
‘
In
short, whether or not a secondary strike is protected is determined
by weighing up two factors – the reasonableness of
the nature
and extent of the secondary strike (this is an enquiry into the
effect of the strike on
the secondary employer
and will
require consideration,
inter alia
, of the duration and form of
the strike, the number of employees involved, their conduct, the
magnitude of the strike’s impact
on the secondary employer and
the sector in which it occurs) and, secondly, the effect of the
secondary strike on the business
of the primary employer, which is,
in essence, an enquiry into the extent of the pressure that is placed
on the primary employer.’
(my emphasis)
[20]
In
SA Local Government Association v SA Municipal Workers Union
[2011] 7 BLLR 649
(LAC); (2011) 32 ILJ 1886 at paras 9-10 Waglay JA
(as he then was) confirmed this approach:
‘
In these
proceedings, quite properly, neither the appellant nor the union
contest the proposition that s 66 (2) (c) of the Act,
imports a
proportionality test. What is required to be determined, as the court
a quo
correctly observed, is the reasonableness of the nature
and extent of the secondary strike (which inevitably involves an
enquiry
into the effect of the strike on the secondary employer) in
relation to the effect on the business of the primary employer (which
inevitably involves and enquiry into the extent of the pressure
placed on the primary employer).
Under the head of
proportionality,
the court must weigh the effect of the secondary
strike on the secondary employer and the effect of the nature and
extent of the
secondary strike on the business of the primary
employer
.’ (my emphasis)
[21]
Whilst the facts of the
SALGA
case were different to that
which applied in the present dispute, this Court, in confirming the
judgment of Van Niekerk J, clearly
established a test that the
mandated enquiry has to focus on the individual secondary employer.
There is, therefore, no reason
to entertain an appeal with regard to
a point of law which has already been settled by this Court. In the
event that some adaptation
to this form of interpretation is required
by way of a set of facts presented in a live dispute, that obviously
would be the correct
course, in that a live factual matrix would be
the time to test the correctness of the dicta to which I have made
reference.
[22]
Turning to the second leg of appellants’ argument, the core of
the submission
is that in the judgment of Van Niekerk J in
SALGA
the disruption of services and economic loss were not factors
that ranked highly when considering the legitimacy of this form of
industrial action. The approach actually adopted by Van Niekerk J was
somewhat different to that which formed the basis of the
submission:
‘
Whether or not a
secondary strike is protected is determined by weighing up two
factors – the reasonableness, nature and extent
of the
secondary strike (this was an enquiry into the effect of the strike
on the secondary employer and will require consideration,
inter alia,
of the duration and form of the strike, the number of employees
involved, their conduct, the magnitude of the strikes
impact on the
secondary employer and the sector in which it occurs) and secondly
the effect of the secondary strike on the business
of the primary
employer which is in essence an inquiry into the extent of the
pressure that has placed on the primary employer.’
(para 16)
[23]
There can be little doubt that in this paragraph the learned judge
clearly placed
emphasis upon economic consequences of a secondary
strike for the secondary employer. The weight to be accorded to this
set of
factors in the balancing exercise is a factual determination
which will vary from case to case. The jurisprudence clearly
mandates a proportionality assessment in which a court is enjoined to
weigh the reasonableness, nature and extent of the secondary
strike
against the effect of the secondary strike on the business of the
primary employer. This establishes that the economic consequences
for
the secondary employer must be taken into account. It follows that no
further judgment of this court is required to set out
the nature of
the proportionality enquiry. Manifestly, there may be different
factual applications of this enquiry. The evaluation
of the outcome
thereof will depend upon a live dispute which would then require the
attention of the Labour Court and, if necessary,
this Court.
[24]
In summary, there is no significant point of law which flows from
this appeal that
requires determination by this Court in
circumstances where there is no longer a live dispute between the
parties. Indeed, the
facts of this case are even more adverse to the
appellants than were the facts of the case in
Sun International
,
given the two
SALGA
judgments which deal with the relevant
section of the LRA.
[25]
There is, therefore, no reason to alter the approach which was taken
by this Court
in
Sun International supra
, with respect to
whether exceptional circumstances existed to justify hearing an
appeal where there is no longer a live dispute.
[26]
The same result must apply in this case. For this reason, the appeal
is dismissed
with costs, including the cost of two counsel.
________________
Davis
JA
Coppin
JA and Kathree-Setiloane concur.
APPEARANCES:
FOR
THE APPELLANTS: Adv. Feroze Boda SC with Adv Sian
Collet
Instructed by LDA
Incorporated Attorneys
FOR THE FIRST, THIRD,
FOURTH, SIXTH,
SEVENTH, EIGHTH AND TENTH
RESPONDENTS:
Adv. Anton Myburgh SC with Adv. Riaz Itzkin
Instructed by Fasken,
Webber Wentzel Attorneys and ENS Attorneys
FOR
THE SECOND RESPONDENT: Adv. Andrew Snider SC
Instructed
by Cliffe Dekker Hofmeyr Attorneys