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[2017] ZALAC 24
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Sun International Limited v South African Commercial Catering and Allied Workers Union (JA45/16) [2017] ZALAC 24; (2017) 38 ILJ 1799 (LAC); [2017] 8 BLLR 776 (LAC) (3 May 2017)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case no: JA 45/16
In the matter between:
SUN INTERNATIONAL
LIMITED
Appellant
and
SOUTH AFRICAN COMMERCIAL
CATERING AND ALLIED WORKERS
UNION
Respondent
Heard:
23 February 2017
Delivered:
03 May 2017
Coram:
Davis, Jappie JJA and Kathree-Setiloane AJA
JUDGMENT
DAVIS
JA
Introduction
[1]
This is an appeal against the
judgment of Rabkin-Naicker J sitting in the court
a
quo
in which she ordered
that the appellant be interdicted from engaging in replacement labour
during the course of a protected lockout
on the basis that the strike
which had given rise to the lockout had ended.
[2]
The substance of the appeal
before this Court concerns one crisp question, namely the
interpretation of s76(1)(b) of the Labour
Relations Act 66 of 1995
(“LRA”). Section 76 (1) (b) of the LRA provides:
‘
[a]n
employer may not take into employment any person for the purposes of
performing the work of any employee who is locked out,
unless
the lock-out is in response to a strike
’.
(my emphasis)
[3]
The court
a
quo
found that the lockout
which continued after the strike had ended was no longer “in
response to the strike” and therefore
the employment of
replacement labour was prohibited. It is against this finding that
appellant comes before this Court.
The
central factual matrix
[4]
On 21 September 2015, following
an unsuccessful attempt for conciliation and the issuing of a
certificate of outcome by the CCMA,
respondent issued a strike notice
in terms whereof it gave appellant notice of a three-day strike
commencing at 05h45 on 25 September
2015, and ending at 05h45 on 28
September 2015 in support of its wage demands.
[5]
To the extent that it is
relevant, respondent’s letter reads thus:
‘
Take
further notice that the intended strike action and picketing will
follow this planned programme of action:
On
25 September 2015, from 05h45 all workers will embark on a total
tools down and the marches will take place on this day, from
10h00
until 14h00.
1.
On
the 26
th
and 27
th
picketing in all units will follow, see attached list of units
participating.
2.
The
workers will return to their work stations from 05h45 on 28 September
2015. The Union reserves its right to issue another
notice,
should a need arise
.’
[6]
On 22 September 2015, appellant
issued respondent with a lockout notice in terms of which it notified
respondent that it intended
to institute a lockout in response to the
“strike” and that the lockout would take effect on 08h00
on 25 September
2015. The basis of appellant’s decision to
engage in a lockout was stated as follows:
‘
In
terms of the lockout, Sun International will exclude its employees
who are members of SACCAWU from its various workplaces for
the
purpose of compelling such employees to accept Sun International’s
final offer, regarding changes in wages and/or terms
of conditions of
employment as set out, in full, in Annexure A attached to this
writing; and
The
lockout will continue until such time as Sun International’s
aforesaid final offer has been accepted and during this period
such
employees will not be entitled to any remuneration or benefits
.’
[7]
After the strike had occurred
and the lockout had been implemented on 25 September 2015, respondent
launched an urgent application
in the court
a
quo
seeking to interdict
appellant from employing replacement labour during the lock-out after
the strike had ended. Based on the interpretation
it adopted of
s76(1)(b) of the LRA, the court
a
quo
held that appellant was
not entitled to engage replacement labour as the strike had ended.
[8]
After these events, a wage
agreement was concluded between the parties on 07 October 2015. It is
thus common cause that the dispute
which gave rise to both the strike
and the lockout had been resolved. In the light thereof, respondent
raised a point
in limine
with respect to the appeal against the judgment of the court
a
quo,
namely whether there
remained a live dispute for this Court’s determination and
hence whether the relief sought by appellant
will have any practical
effect. In respondent’s view the appeal was thus moot.
Accordingly, the issue of mootness must be
determined prior to any
substantive inquiry into the meaning of s76(1)(b) of the LRA.
Mootness
[9]
Respondent relies in particular
on
s16(2)(a)(i)
of the
Superior Courts Act 10 of 2013
for its
submission that the appeal is moot. This section provides:
‘
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’
[10]
Section 21A(1)
of the now
repealed Supreme Court Act 59 of 1959 corresponds with the present
s16
(2)(a)(i) of the
Superior Courts Act. Hence
the jurisprudence
relating to the repealed provision remains relevant. The meaning of
s21
A(1) is captured by Brand JA in
Port
Elizabeth Municipality v Smit
[1]
:
‘
It
can be argued, I think, that
s 21
A is premised upon the existence of
an issue subsisting between the parties to the litigation which
requires to be decided.
According to this argument
s 21
A would
only afford this Court a discretion not to entertain an appeal when
there is still a subsisting issue or
lis
between the parties the resolution of which, for some or other
reason, has become academic or hypothetical. When there is
no
longer any issue between the parties, for instance, because all
issues that formerly existed were resolved by agreement, there
is no
“appeal” that this Court has any discretion or power to
deal with.
’
For
a further discussion of this principle see
Legal Aid v Magidiwana
2015 (2) SA 568
(SCA) at paras 18-22
[11]
Respondent contends that the
dispute between the parties has been resolved. No notice to strike
nor to lockout has been issued nor
is either contemplated. The
employment of replacement labour is not an issue between the parties
at present and there is no suggestion
that it is currently in
appellant’s contemplation.
[12]
To the contrary, appellant
contends that the dispute has not become moot and it raises in
support of this argument the decision
of this Court in
Mawethu
Civils (Pty) Ltd and Another v National Union of Mineworkers and
Others
(2016) 37 ILJ 1851
(LAC). In that case, an interim order interdicting a strike had been
discharged by the Labour Court. This Court
entertained an appeal in
circumstances when there was no longer any strike action. It upheld
the appeal, finding that the court
a
quo
ought to have confirmed
the interim order. Murphy AJA examined the question of mootness and
concluded thus at para 23:
‘
Counsel
for the respondents argued that the appeal has become moot with the
passage of time and will have no practical effect. That
is not
correct. There is a live dispute between the parties about the legal
character and consequences of the strike that has continued
relevance
in the on-going industrial relations in which they are involved. The
appellants legitimately seek judicial affirmation
of their stance in
regard to the appropriate means of resolution of a dispute of this
nature.
’
[13]
Appellant contends that the
parties continue to be in dispute about whether replacement labour
can be used in these circumstances
and accordingly submits that the
approach adopted in
Mawethu
Civils
is applicable to the
present case. In the event that the court finds the appeal to be
moot, appellant contends that the Court should
nonetheless exercise
its discretion to entertain the appeal. In this connection it
referred to the decision in
Executive
Officer FSB v Dynamic Wealth Ltd and others
2012 (1) SA 453
(SCA) which I shall analyse presently.
[14]
In summary, appellant’s
argument was that, as the appeal raises a discrete legal issue, being
the interpretation of
s76
(1)(b) of the LRA and that this issue is of
importance to the labour community at large, as in future disputes
replacement labour
might be used. It was therefore important for this
Court to resolve the conflict between the court
a
quo’
s judgment and
two other judgments of the Labour Court namely,
Ntimane
and Others v Agrinet t/a Vetsak (Pty) Ltd
[1999] 3 BLLR 248
(LC) and
Chemical
Energy Paper Printing Wood and Allied Workers Union v National
Magazine Printers
(1999) 20
ILJ 2864 (LC).
Evaluation
[15]
In
Mawethu
Civils, supra,
the court
held that there was a live dispute between the parties that had not
been resolved. Its finding appeared to turn on whether
it was a term
of the employment contract that employees had to work unpaid overtime
in order to receive paid leave for a day following
upon a public
holiday. The dispute focussed on an averment of the evidence of a
long standing practice which the employer had insisted
had become an
accepted employment term, a claim which was hotly contested by
employees who were in an on-going employment relationship
with the
employer. It appears, on this analysis of the facts, that the
on-going relationship and what terms framed this relationship
formed
the justification for a finding that there was a live dispute. The
upshot of the approach adopted by Murphy AJA in
Mawethu
Civils, supra
was that, as
there was a live dispute, this finding justified the Court in
proceeding to deal with the merits of the case.
[16]
By contrast, in this case there
is no suggestion that there is any form of live dispute between the
parties. The dispute which gave
rise to the lockout and strike was
settled in October 2015. There was not a scintilla of evidence
produced to indicate to the contrary.
Accordingly, it is not possible
to find that there is a live dispute on the present facts sufficient
to adopt a similar approach
to that set out in
Mawethu
Civils
.
[17]
As noted appellant sought to
invoke the decision in
Executive
Officer FSB, supra
. In
support of an argument that this Court should exercise its discretion
to hear the substantive dispute
Executive
Officer FSB, supra
turned
on the scope of
s5
of the
Financial Institutions (Protection of
Funds) Act 28 of 2001
which provides that a financial institution
may, on good cause shown by the Registrar of Financial Institutions,
be placed under
curatorship for a period that the court deems fit. On
appeal, the court found that, based on inspector’s reports, the
respondents
had acted illegally and dishonestly. Hence, the Registrar
had been compelled to act to remove the person responsible from the
management
and control of the institutions concerned. Accordingly,
the court held that an interim order of curatorship should have been
granted
by the High Court and that the dispute had been incorrectly
decided by the court
a quo
.
However, in the interim, respondent’s business was closed due
to the withdrawal of its licences and it was thus no longer
appropriate to appoint liquidators. The question therefore raised was
whether the appeal should be dismissed for having no practical
effect
or result. Wallis JA said the following:
‘
I
do not agree that the appeal will have no practical effect or result.
Its determination involves the proper construction of an
important
provision in the regulatory armoury of the Registrar, the test to be
applied in considering an application for curatorship
under s 5(1)
of the FI Act and a consideration of the evidential status of an
inspection report. These are all important issues
that will impact
upon the future conduct of the Registrar.
Lord
Slynn of Hadley said in
R v Secretary of State for the Home
Department, Ex Part Salem
:
‘
The discretion to
hear disputes, even in the area of public law, must, however, be
exercised with caution and appeals which are
academic between the
parties should not be heard unless there is a good reason in the
public interest for doing so, as for example
(but only by way of
example) when a discrete point of statutory construction arises which
does not involve detailed consideration
of facts and where a large
number of similar cases exist or are anticipated so that the issue
will most likely need to be resolved
in the near future.’
The
present seems to me precisely the type of case where the court should
hear and decide the dispute because of its importance
in the field of
financial regulation, where it will have a practical effect.’
(paras 43-44)
[18]
In
Executive
Officer FSB
it was clear
that, as the Registrar was required to work with the relevant
legislation on a daily basis, clarity was required in
order to
determine whether a curatorship order was competent. In
short, the regulatory system for which the Registrar
was responsible
was dependent upon a definitive interpretation of the relevant
section and the registrar’s powers.
[19]
In the present case, appellant
argues that, as there are conflicting approaches to the relevant
section, the broad labour law community
is uncertain about the
interpretation of the section and this uncertainty impacts upon many
parties. This is a very different scenario
from that of a regulatory
authority which has to work daily with the relevant empowering
legislation.
[20]
The present case is clearly
fact driven. When the merits of the case are examined much of the
argument turned on the fact that respondent
had written a letter in
which it said: “The union reserves its right to issue another
notice should a need arise.”
Whether one sentence can be
considered to justify the argument that the disputed lock out was in
response to a strike, which was
continuing as a result of a threat to
issue another strike notice, is a question which can only be resolved
on the facts. That
the dispute between the parties ended but a week
later simply illustrates that the issue between the parties turned on
the particular
facts of the case. The dispute is no longer live
between the parties and therefore does not deserve the attention of
this Court.
When a live dispute triggers the application of s76(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.
[21]
Appellant has in effect asked
for an advisory opinion as to future conduct. 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 s76(1)(b) of the LRA.
[22]
For these reasons, the appeal
is dismissed. There is no award as to costs.
__________________
Davis
JA
Jappie
JA and Kathree-Setiloane AJA concurred
APPEARANCES:
FOR
THE APPELLANT:
Adv A Myburgh
SC
Instructed by Zyl Rudd Inc
FOR
THE RESPONDENT:
Adv V Ngalwana SC
Instructed by Voyi Inc
[1]
2002 (4) SA 241
(SCA) at para 7.