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[2015] ZALAC 29
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Potgietersrust Platinum Limited (Mokgalakwena Section) v Ditsela and Others (JA66/12) [2015] ZALAC 29 (2 July 2015)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA ,
JOHANNESBURG
Case No. JA66/12
DATE: 02 JULY
2015
Not Reportable
In the matter
between:
POTGIETERSRUST
PLATINUM LIMITED
(MOKGALAKWENA
SECTION)
..........................................................................................
Appellant
And
GODFREY DITSELA &
2
OTHERS
.................................................................................
Respondents
Heard: 27 May
2014
Delivered: 2 July
2015
Summary: Mootness
– The LC ordered reinstatement of employees (respondents) and
employer (appellant) complied with the order
– Appellant
nevertheless still appealed against the LC’s judgment, thus
causing respondents to incur unnecessary costs.
Held
: Appeal
moot - no longer necessary for the LAC to issue judgment on merits of
the appeal – Appellant ordered to pay the respondents’
costs.
Coram: Davis,
Ndlovu JJA and Molemela AJA
JUDGMENT
NDLOVU JA
[1]
This is one matter that should never have come before this Court, for
the reason of its mootness.
[2]
On 22 July 2010, the CCMA commissioner (the second respondent in the
Court
a
quo
)
issued an arbitration award whereby he found that the dismissals of
the respondents were substantively unfair and ordered that
the
appellant (the respondents’ former employer) must compensate
each respondent in the amount equivalent to 12 months’
remuneration. The respondents, who were represented by their trade
union, the National Union of Mineworkers, were not satisfied
with the
outcome of the arbitration proceedings (as they sought reinstatement)
and, thus, referred the matter for review by the
Labour Court, in
terms of section 145 of the Labour Relations Act
[1]
(the LRA). The review application served before Whitcher AJ (as she
then was) who, on 23 August 2012, handed down her judgment
with the
following order, in favour of the respondents:
‘
1.
The second respondent’s finding that compensation of 12 months’
remuneration is an appropriate form of relief is
reviewed and set
aside.
2.
The second respondent’s finding on the appropriate relief for
the applicant employees’ unfair dismissal is substituted
with
an order that the third respondent must reinstate the applicant
employees with retrospective effect including back-pay from
the date
of their dismissals.
3.
The applicant employees must be issued with final written warnings on
their return to work.
4. The applicant
employees must be reinstated by 1 September 2012.
5. The third
respondent must pay the applicants’ costs.’
[3]
The appellant’s application for leave to appeal was declined by
the Court
a
quo
on 22 November 2012, but granted by this Court on 28 February 2013,
on petition.
[2]
The appellant
submits that the Court
a
quo
erred in reversing the commissioner’s award and substituting it
with the order of reinstatement in favour of the respondents.
The
appellant further submitted that the commissioner’s decision
was one which a reasonable decision-maker could have made
in the
circumstances. Among other things, the appellant contended that the
extended delay between the dismissals and the arbitration
proceedings
was such that it rendered the reinstatement of the respondents
reasonably impracticable.
[3]
[4]
The matter was argued before this Court on 27 May 2014. Mr
Myburgh
SC
appeared for the appellant and Mr
Makinta
for the
respondents.
[5]
During Mr
Makinta’s
address, it came to light that all the respondents had in fact
already been reinstated by the appellant in the same positions that
they held prior to their dismissals. This had happened about a year
already before the hearing of the appeal. It also transpired
that
this development was actually alluded to in the respondents’
heads of argument.
[4]
When the
Court invited Mr
Myburgh
for his comment, he said that he had no instructions on the issue.
After the arguments were concluded, the judgment was reserved.
[6]
Given the uncertainty expressed by Mr
Myburgh
on the issue of
the respondents’ reported reinstatement (due to lack of
instructions on his part), I had delayed preparing
the judgment,
hoping that the issue would be clarified in due course, as I
considered it would be pointless preparing a judgment
in respect of a
matter that is moot. However, no clarification on the issue was
forthcoming.
[7]
Eventually, upon recent inquiry to the appellant’s attorneys
regarding the matter, they responded in a letter dated 19
February
2015 as follows:
‘
1.
We confirm that the Fourth to Sixth Respondents were reinstated by
the Applicant.
2.
In such circumstances, it will not be necessary for the Labour Appeal
Court to deliver [the] judgment in this matter.
3. We apologise for
any inconvenience.
Yours faithfully
ENS
Africa’
[signed]
[8]
A copy of this letter was forwarded to Mr
Makinta’
s
office. In his response thereto, Mr
Makinta
did not subscribe
to the approach adopted by the appellant’s attorneys. He
suggested that they should formally withdraw the
appeal and tender
the respondents’ costs. The appellant’s attorneys are
apparently not amenable to that suggestion.
Consequent to this
impasse, the Court will now proceed and deal with the matter. On the
basis of the order that I intend to propose,
there is, in my view, no
need to hear any further submissions from the parties.
[9]
It is trite that, save in exceptional circumstances, a court will
only entertain a dispute as long as such dispute remains live
between
the parties. It is so because a court does not need to make an order
that will be incapable of execution by virtue of the
matter having
become academic. In
Geldenhuys
& Neethling v Beuthin,
[5]
the Appellate Division
(per
Innes CJ) stated the following:
‘
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.’’
[6]
[10]
Recently, the Legislature promulgated the Superior Courts Act,
[7]
section 16(2)(a) of which provides as follows
[8]
:
‘
(2)
(a) (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 whether the decision would
have no practical effect or result is to be determined
without
reference to any consideration of costs.’
[11]
Of course, in the present instance, it is not clear as to when the
respondents were reinstated in relation to the date when
this Court
granted the appellant leave to appeal. However, in my view, it was
unwise and unfair of the appellant to proceed with
the appeal and
thus drag the respondents to Court in circumstances where the order
of their reinstatement had already been implemented
by the appellant
a year ago. Indeed, it is beyond my comprehension what the appellant
had in mind and sought to achieve by proceeding
with this appeal.
There is no indication or suggestion that the reinstatement order was
implemented by the appellant conditionally,
on a “without
prejudice” basis. In the circumstances, the relief sought by
the appellant would, if granted, clearly
have no practical effect or
result.
[9]
[12]
Significantly, despite the fact of reinstatement of the respondents
having been mentioned in the respondents’ heads of
argument,
the appellant still proceeded and briefed counsel, who was not
properly instructed about the issue, to come to Court
and argue the
appeal. In that way, the appellant unduly caused the respondents to
incur further legal costs, as they had no option
but to defend their
reinstatement, as sanctioned by the Court
a quo
.
[13]
Accordingly, it seems to me that, the respondents are entitled to
costs of the appeal. For the reason of mootness, there is
no longer
any need for the Court to issue a judgment on the merits of the
appeal.
[14]
In the result, the appellant is ordered to pay the costs of the
appeal.
Ndlovu
JA
Davis
JA and Molemela AJA concur in the judgment of Ndlovu JA
APPEARANCES:
FOR THE
APPELLANT: Mr AT Myburgh SC
Instructed
by ENS Africa
FOR
THE RESPONDENTS: Mr ES Makinta of Makinta Attoneys
[1]
Act
66 of 1995.
[2]
In
terms of section 166(2) of the LRA.
[3]
Paragraph
47 of the appellant’s heads of argument.
[4]
Paragraph
24.11 of the respondents’ heads of argument.
[5]
1918
AD 426.
See also:
Rand
Water Board v Rotek Industries (Pty) Ltd
2003 (4) SA 58
(SCA) at para 13-18;
Radio
Pretoria v Chairman, Independent Communications Authority of South
Africa and Another
2005 (1) SA 47
(SCA) at paras 39-41;
Port
Elizabeth Municipality v Smit
2002 (4) SA 241
(SCA) at para 7;
Minister
of Trade and Industry v Klein NO
[2009] 4 All SA 328
(SCA) at para 13;
Legal
Aid South Africa v Magidiwana and Others
2015 (2) SA 568
(SCA) at pars 18-20;
National
Coalition for Gay and Lesbian Equality and Others v Minister of Home
Affairs and Others
2000 (2) SA 1
(CC) at para 21.
[6]
At
463H.
[7]
Act
10 of 2013, which came into effect on 23 August 2013.
[8]
These
provisions are the replica of section 21A(1) and (3) of the repealed
Supreme Court Act 59 of 1959, the predecessor of the
Superior Courts
Act, 2013
.
[9]
Section
16(2)(a)
of the
Superior Courts Act, above
.