Sun International Ltd v SACCAWU (JA45/16) [2017] ZALAC 24 (3 May 2017)

Principle:

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, or if what is being asked for is effectively an opinion to guide parties' future conduct, the appeal may be dismissed on that ground alone.

Facts:

Following a breakdown in wage negotiations and a failure to resolve the dispute through conciliation at the CCMA, SACCAWU on 21 September 2015 gave Sun International written notice of a 3 day protected strike commencing at 05h45 on 25 September 2015 and ending at 05h45 on 28 September 2015. The Union's strike notice implied that this 3 day period may not necessarily be the end of the strike, stating "the union reserves its right to issue another notice, should a need arise."

The employer responded on 22 September 2015 by giving the Union written notice of a lockout to commence at 08h00 on 25 September 2015 "in response to the strike". The lockout notice stated as follows:

"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."

After the strike commenced and the lockout had been implemented, SACCAWU sought an interdict from the Labour Court to prevent Sun International from employing replacement labour during the lockout after the strike had ended.

Whilst this dispute was being played out in the courts, the wage dispute that led to the industrial action was resolved through a wage agreement concluded between the parties on 7 October 2015. The LC dealt with this matter in SACCAWU v Sun International (J1951/15) [2015] ZALCJHB 341 (6 October 2015) and interpreted s76(1)(b) to mean that the statutory right of an employer to hire replacement labour is restricted to the period during which the strike pertains, and not after it has ceased. So if the reason for the employees not being at work shifts from being their strike to being the employer's lockout, the employer at that point loses the right to use replacement labour. This is because the lockout is no longer "in response to a strike".

The LAC never dealt with the merits of the dispute as to what a correct interpretation of s76(1)(b) should be, in circumstances in which a lockout commenced in response to a strike, but then continued after the strike had either ended or been suspended. It is also important to remember that the Union had left the door open to further strike action, reserving its rights to issue another strike notice "should a need arise".

The LAC dismissed the employer's appeal against the LC's interpretation of s76(1)(b), on a point in limine raised by the Union that there was no longer a 'live' dispute between the parties, and the relief sought by the employer would have no practical effect. The wage dispute between them had been resolved, and the employment of replacement labour was no longer an issue between them. The appeal was accordingly "moot". Support for this approach can be found in s16(2)(a)(i) of the Superior Courts Act 10 of 2013 which states as follows:

"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."

The LAC concluded that where an appeal effectively amounts to an application to the Court for an advisory opinion as to future conduct, this should not be allowed. The LAC judgment is a reminder that if a court believes its decision will have no practical effect or result, or if what is being asked for is effectively an opinion to guide parties' future conduct, it may well dismiss the matter without considering the merits of the case.

Extract from the judgment:

(Davis JA:)

[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'

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[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.

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[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.

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[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.