Massmart Holdings Ltd and Others v SACCAWU (JS757/2021) [2022] ZALCJHB 144; (2022) 43 ILJ 2051 (LC); [2022] 10 BLLR 980 (LC) (23 May 2022)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Reportable

Case No: JS 757/2021

In the matter between:

MASSMART HOLDINGS LTD FIRST

APPLICANT

MASSDISCOUNTERS (PTY) LTD t/a GAME SECOND

APPLICANT

MASSBUILD t/a BUILDERS EXPRESS,

BUILDERS WAREHOUSE, BUILDERS SUPERSTORE

AND BUILDERS TRADE DEPOT THIRD

APPLICANT

MASSMART WHOLESALE t/a JUMBO CASH &

CARRY FOURTH

APPLICANT

MASSTORE (PTY) LTD t/a MAKRO FIFTH

APPLICANT

MASSCASH (PTY) LTD SIXTH

APPLICANT

MASSMART RETAIL (PTY) LTD t/a CAMBRIDGE

FOOD & RHINO CASH & CARRY SEVENTH

APPLICANT

And

SOUTH AFRICAN COMMERCIAL CATERING

AND ALLIED WORKERS UNION

RESPONDENT/

(EXCIPIENT)

Heard:

20 May 2022

Delivered: 23 May 2022

(In view of the measures implemented as a result of the Covid 19 pandemic, this judgement was handed down electronically by circulation to the parties’ representatives, by email. The date on which the judgment is delivered is deemed to be 23 May 2022.)

JUDGMENT

VAN NIEKERK, J

Introduction

[1] The applicants, to whom I shall refer collectively as ‘Massmart’, have sued the respondent (the union) for payment of the sum of R 9 383 454,57, being compensation sought in terms of section 68 (1)(b) of the Labour Relations Act, 1995, (the LRA) for losses that Massmart avers it suffered during the course of strike action called by the union during 2021.

[2] The parties agree that the strike was protected, in that it met the procedural and substantive requirements respectively established by sections 64 and 65 of the LRA. Massmart contends that during the strike, the union, its officials and members and/or supporters engaged in various offences; in particular, that their conduct did not comply with Chapter VI of the LRA, they did not strike peacefully, they failed to comply with the Occupational Health and Safety Act (OHSA) and Covid-related regulations, protocols and directives, and failed to comply with picketing rules established by the Commission for Conciliation Mediation and Arbitration (CCMA).

[3] The union has excepted to the statement of claim, raising five grounds of exception. The union contends that this Court has no jurisdiction to entertain Massmart’s claim, because claims arising out of protected strikes fall outside the ambit of section 68 of the LRA, and must be pursued as delictual claims in the High Court. Put another way, the union contends that this court’s exclusive

jurisdiction to order the payment of just and equitable compensation for any loss attributable to a strike or lockout or conduct in contemplation or in furtherance of a strike or lockout may not be invoked when the strike or lockout, as the case may be, is protected. The second exception is to the effect that this court has no jurisdiction to determine whether the union’s members engaged in conduct that was in breach of the OHSA and Covid-related regulatory measures. Thirdly, the union contends that the statement

of claim does not disclose a cause of action in that Massmart relies on certain repealed, alternatively, incorrect regulations. This exception was not pursued and no more need be said about it. Fourthly, the union contends that Massmart has failed to plead or make averments relating to the factors listed in section 68 (1) (b) (i) to (iv) of the LRA. Those factors concern matters that the court is required to take into account when assessing the quantum of any claim for just and equitable compensation for loss attributable to a strike or lockout, or conduct in contemplation or in furtherance of a strike or lockout. Finally, the union contends that the statement of claim is excipiable to the extent that Massmart relies on alleged conduct by union members that occurred outside of designated picketing areas. The union contends that it has no duty in law to take any precautions or steps outside of a designated picketing area, nor is any such duty pleaded by Massmart.

[4] A statement of claim filed in terms of Rule 6 need contain only a clear and concise statement of the material facts and a clear and concise statement of the legal issues that arise from those facts. This court has made clear that this formulation is purposely limited, and is intended to apprise a defendant of the material facts and legal issues arising from those facts upon which the plaintiff will rely to succeed in its claims. The Rules of this court anticipate that the factual matters at issue, as well as the legal issues that arise from those facts, will be dealt with during the pre-trial conference and at trial (see Liquid Telecommunication (Pty) Ltd v Carmichael-Brown).[1] What the court must consider, when an exception is raised against a statement of case, is whether on every interpretation that the pleading in question can reasonably bear, no cause of action is disclosed. Put another way, a distinction is drawn between facts which must be proved in order to disclose a cause of action, and the facts necessary to prove a cause of action. Although there is some debate as to whether a contention that the court has no jurisdiction to entertain the cause of action articulated in a statement of claim ought to be raised by way of special plea or exception, this court has entertained such contentions by way of exception as this would dispose of the matter in its entirety. I see no reason to question that practice. (See, for example, Dudley v city of Cape Town & another [2008} 12 BLLR 1155 (LAC).)

[5] I deal with the exceptions in reverse order. To the extent that the union submits that Massmart has failed to plead a proper cause of action because the union has no duty in law to take steps or precautions outside designated picketing areas, this submission ignores the fact that the substance of Massmart’s claim is that the union failed to comply with relevant regulatory measures (described in the statement of claim as ‘the strike framework) part of which comprised the picketing rules established by the CCMA. In terms of these rules, Massmart contends that the union representative, the convener, was responsible for overseeing the picket and ensuring compliance with the picketing rules, including the rule that participants in the picket remain within the designated picketing areas. Massmart alleges that the union engaged in conduct that did not comply with the LRA, specifically, by failing to ensure that protesters remained in designated areas, and that the losses suffered by Massmart as a consequence of this conduct is attributable to the union. That is a competent claim under section 68 (1) (b). This exception thus stands to be dismissed.

[6] To the extent that the union contends that the statement of claim does not plead all of the elements of the cause of action because it fails to make averments in respect of each of the factors set out in section 68 (1) (b) (i) to (iv), it should be recalled that this provision confers a wide discretion on this court to grant compensation in an amount that it considers to be just and equitable having regard to all of the relevant facts and circumstances. The factors listed do not form part of the facta probanda that a plaintiff is required to plead and prove. Should Massmart succeed at trial, the court will consider the factors listed in subsections (i) to (iv) and determine, having regard to those factors, what amount of compensation, if any, is just and equitable. The fourth exception thus stands to be dismissed.

[7] In regard to the third exception, as I have indicated, the union abandoned its complaint in the heads of argument filed on its behalf and now accepts that the relevant regulations were extant and applicable at the relevant time. To the extent that the union seeks to raise a new complaint in its heads of argument, this is not permissible. An excipient is obliged to confine its complaints to the stated grounds of exception, and may not rely on different grounds or raise a different exception at the hearing of the matter. The third ground of exception thus stands to be dismissed.

[8] The second exception is to the effect that this court lacks jurisdiction to determine breaches of all offences in terms of the OHSA and Covid -related regulations. The essence of Massmart’s claim is one for loss suffered consequent on conduct in contemplation or in furtherance of a strike. Among other measures, Massmart relies on its own Covid protocols relating to social distancing, the wearing of masks and the observation of quarantine requirements. These violations constitute offences for the purposes of OHSA and the applicable directive and what Massmart seeks to do is to establish that the conduct concerned constitutes an offence, not for the purposes of any self-standing relief but in the context of an assessment of the conduct undertaken during the strike, being

incidental or ancillary to Massmart’s claim. There is thus no merit in the second ground of exception.

[9] The determination of the merits of the first exception requires an interpretation of section 68 (1) of the LRA. That section provides:

68. Strike or lock-out not in compliance with this Act

(1) In the case of any strike or lock-out, or any conduct in contemplation or in furtherance of a strike or lock-out, that does

not comply with the provisions of this Chapter, the Labour Court has exclusive jurisdiction-

(a) to grant an interdict or order to restrain

(i) any person from participating in a strike or any conduct in contemplation or in furtherance of a strike; or

(ii) any person from participating in a lock-out or any conduct in contemplation or in furtherance of a lock-out;

(b) to order the payment of just and equitable compensation for any loss attributable to the strike or lock-out, or conduct, having regard to-

(i) whether –

(aa) attempts were made to comply with the provisions of this Chapter and the extent of those attempts;

(bb) the strike or lock-out or conduct was premeditated;

(cc) the strike or lock-out, or conduct was in response to unjustified conduct by another party to the dispute; and

(dd) there was compliance with an order granted in terms of paragraph (a);

(ii) the interests of orderly collective bargaining;

(iii) the duration of the strike or lock-out or conduct; and

(iv) the financial position of the employer, trade union or employees respectively.

[10] The provisions of section 68 must necessarily be appreciated in the context of the immunities established by section 67. Section 67 (2) provides that a person taking part in a protected strike or protected lockout, or any conduct in contemplation or furtherance of a protected strike or a protected lockout, does not commit a delict or a breach of contract. Section 67 (6) provides that civil legal proceedings may not be instituted against any person for participating in a protected strike or lockout, or any conduct in contemplation or in furtherance of a protected strike or a protected lockout. The immunities established by section 67 (2) to (6) are not absolute. Section 67 (8) provides that the provisions of the subsections ‘do not apply to any act in contemplation or in furtherance of a strike or lockout, if that act is an offence’.

[11] Counsel for the union relied on Stuttafords Department Stores Ltd v SACTWU [2] to contend that this court has no jurisdiction under section 68 (1) (b) to entertain the claim for compensation for loss attributable to a protected strike, or any conduct in contemplation or in furtherance of a protected strike. Stuttafords concerned a claim for compensation by a trade union on the basis that a lockout initiated by the employer party was unprotected, and that the employer’s conduct in engaging temporary labour was unlawful. The Labour Court had awarded the affected employees compensation for lost wages, despite a finding that the lockout was protected. The unlawful conduct that formed the basis of the Labour Court’s award of compensation was what the court found to be a breach of section 76 (1) (b) of the LRA, i.e. taking into employment persons for the purpose of performing the work of the employees who were locked out. The Labour Appeal Court requested counsel to address the issue of the Labour Court’s jurisdiction to entertain the claim for compensation, given that the court had found the lockout to be protected.

[12] In the course of its judgment, the LAC held the following:

[30] … Does the Labour Court have jurisdiction in terms of s68(1)(b) to entertain a claim for compensation for lost wages suffered by employees during a protected lock-out when such loss is attributable to such protected lock-out?

[31] In my judgment … [T]he Labour Court does not have jurisdiction under s68(1)(b) to entertain a claim for compensation for loss attributable to a protected lock-out. Section 68(1)(b) confers exclusive jurisdiction on the Labour Court to award ‘just

and equitable compensation for any loss attributable to the strike or lock-out’. The reference to a lock-out in s68(1)(b) is a reference to an unprotected lock-out. This is so because the use of the article ‘the’ just before the words ‘strike or lock-out’ is an indication that the strike or lock-out referred to is the one already referred to before. The strike or lock-out which has been referred to prior to s68(1)(b) is the one referred to at the opening part of subsection (1) of s68. There it is stated: ‘In the case of any strike or lock-out, or any conduct in contemplation or in furtherance of a strike or lock-out, that does not comply with the provisions of this Chapter ...’.

[13] The LAC had further regard to the structure of Chapter IV of the LRA and in particular, the fact that sections 67 and 68 dealt discretely and respectively with the effect, implications and consequences of protected strikes and lockouts, and unprotected strikes and lockouts. The court upheld the appeal against the order that the employer pay compensation for its contravention of section 76 (1) (b) on the basis that in the face of a protected lockout, it was not open to the Labour Court to grant any claim for compensation for loss attributable to that lockout under section 68 (1) (b).

[14] In support of the submission that the terms of section 68 (1) do not preclude a claim for compensation for losses suffered on account of unlawful conduct in support of a protected strike, counsel for Massmart relied on the judgment of the Supreme Court of Appeal in National Union of Metalworkers of South Africa and others v Dunlop Mixing & Technical Services (Pty) Ltd and others.[3] In that case, the court was called on to decide whether a picket, organised by a trade union in furtherance of a protected strike,

constituted a ‘gathering’ to which the provisions of the Regulation of Gatherings Act, 1993, applied. The parties had agreed that the court a quo, the High Court, should consider first whether the picket convened by the union constituted a gathering to which the Gatherings Act applied and if so, whether the union party was entitled to claim immunity from civil claims in terms of the LRA. The High Court held that the picket constituted a gathering for the purposes of the Act, and held over the issue of immunity under the LRA for determination by the trial court in due course. Before the SCA, the appellant union submitted that claims such as those pursued by the respondents (a claim for damage to property during the course of an allegedly violent picket in support of a protected strike) were cognisable is above all in proceedings before this court on the basis of section 68 (1) (b), a specialised regime to cater for the exercise of the right to strike and to engage in conduct in furtherance of a strike, and also for remedies for the unlawful exercise of these rights.

[15] In its judgment (per Goosen AJA), the SCA observed that a picket is a form of conduct to which employees may legitimately resort in order to further the objects of strike action (see paragraph 34). For this reason, the LRA regulates the exercise of the right to picket. The court continued:

[35] In order to lawfully engage in a picket, the picket must be authorised by a registered trade union in support of a protected strike. Its purpose must be peaceful and it must occur ‘outside the premises of the employer’ or, with permission, inside the premises of the employer. As long as its purpose is peaceful and it is conducted peacefully in support of or in furtherance of a protected strike, the trade union and the participants in the picket fall within the ambit of the provisions of the LRA and enjoy the protection afforded by ss 67(2) and (6) thereof.

[36] Such protection is, however, lost in the event that any act, constituting an offence, is committed in furtherance of a strike. Conduct which does not comply with the provisions of the Chapter regulating strike action, renders the party responsible for such conduct liable, in terms of s 68(1), to remedies which the Labour Court may impose.

[37] Having regard to the purpose of these provisions, read within their context, this must mean that conduct committed during the course of an otherwise lawfully convened picket which constitutes an offence, renders the person or persons or organisation responsible for such conduct liable to such orders as may be made pursuant to s 68 of the

LRA (emphasis added).

[16] And further, at paragraph 42:

Whilst a picket linguistically may fall within the ambit of what constitutes a gathering, it remains a particular form of organised expression which is central to the exercise of the right to strike. The LRA recognises this by I am persuaded that the making detailed provision for the exercise of that right. It does so by providing for the establishment of picketing rules and for a mechanism by which disputes relating to such rules may be resolved. It deals with picketing within the context of protected strikes and lock-outs and specifically provides for the consequences of conduct which does not comply with the LRA (emphasis added).

[17] The court concluded that since the LRA made specific provision for the convening of pickets and established full recourse in the event that a picket or other conduct in furtherance of a strike, the provisions of the Gatherings Act did not apply to claims for loss attributable to conduct committed during the course of the picket authorised in terms of the LRA. The SCA thus expressly found that conduct undertaken during a protected strike that constitutes an offence or otherwise fails to comply with the requirements of Chapter IV of the LRA, is capable of founding a claim for compensation under section 68 (1).

[18] I am persuaded that the interpretation adopted in Dunlop should be applied in the present instance. Unlike Stuttafords, the SCA’s approach was based on the wording of section 68 (1) (b) after its amendment by section 17 of the Labour Relations Amendment Act, 2002. Prior to the amendment, section 68 (1) (b) made reference only to orders made by this court for the payment of just and equitable compensation for any loss attributable to a strike or lockout. The Amendment Act broadened section 68 (1) (b) by including the words ‘or conduct’. In its post-amendment form, subparagraph (b) thus reads (with added emphasis):

(b) to order the payment of just and equitable compensation for any loss attributable to the strike or lockout, or conduct, having regard to –

[19] These words must necessarily be read in the context of section 68 as a whole, the heading of which refers to ‘Strikes or lockout not in compliance with this Act’, and subsection (1), which makes reference to ‘any strike or lockout, or any conduct in contemplation or in furtherance of a strike or lockout, that does not comply with the provisions of this Chapter.’ Section 67 (6) extends immunity from civil legal proceedings to ‘conduct in contemplation or in furtherance of a protected strike or a protected lockout’. However, unlawful conduct, or conduct in breach of Chapter IV of the LRA, cannot be construed as conduct that is a ‘in contemplation or in furtherance of a protected strike or a protected lockout’. Congruent with this, the word ‘conduct’ in section 68 (1) (b) is not expressly linked to an unprotected strike or lockout, or qualified as being conduct in furtherance of an unprotected strike or lockout. As counsel for Massmart put it, the mere fact that a strike is protected cannot act as a shield for conduct that is committed during the strike, but which is not in furtherance of its peaceful and lawful aims. Section 68 (1) (b) thus applies to any conduct that falls outside of the immunity conferred by section 67 (6).

[20] This construction is supported by the wording of section 69 (12), added by the Labour Relations Amendment Act 6 of 2014, and amended in 2018 by the Labour Relations Amendment Act, 8 of 2018, introduced specifically to regulate the exercise of the right to picket. Picketing is quintessentially conduct in contemplation or in furtherance of a strike. Section 69 (12) extends the powers of this Court ‘in addition to any relief contemplated in section 68 (1) … ‘to intervene in disputes concerning the exercise of the right to picket by making a variety of orders which may be just and equitable in the circumstances, ranging from directions to comply with a picketing agreement to the suspending a picket at one or more locations.

[21] To the extent that counsel for the union submitted that the court’s observations in Dunlop regarding section 68 (1) of the LRA are obiter, this is not a submission that can be sustained by reference to the text of the judgment. In that case, as I have indicated, the court was required to decide whether an authorised picket in terms of section 69 (1) of the LRA was a ‘gathering’ to which section 11 of the Regulation of Gatherings Act applied. The issue for determination, in essence, was whether to the extent that the LRA makes specific provision for the convening of pickets and for recourse in the event that a picket or conduct in furtherance of a strike gives rise to loss, it was open to the aggrieved party to seek ‘riot damage’ under section 11. This determination

required an examination of the provisions of sections 67, 68 and 69 of the LRA and an interpretation of the relevant statutory provisions in the context of the purpose of the LRA. Far from being obiter, the court’s finding that conduct in furtherance of a protected strike and which constitutes an offence or otherwise does not comply with Chapter IV renders the responsible party liable for the remedies available under section 68 (1), is central to the court’s reasoning and part of the ratio decidendi. Further, and contrary to what counsel for the union submitted, there is no conflict between Stuttafords and Dunlop. Stuttafords was decided under a particular legislative regime which did not include either the amendment to section 68 (1) (b), or the addition

of section 69.

[22] Finally, it would be anomalous if an aggrieved employer or union was entitled to pursue a claim for compensation in this court under section 68 for loss attributable respectively to a strike or lockout that does not comply with Chapter IV but not for loss attributable to conduct that constitutes a breach of the same Chapter, simply because the strike or lockout is protected. To limit an aggrieved party to the remedy of a common law delictual claim in the civil courts would undermine what the Constitutional Court and the Supreme Court of Appeal have consistently recognised as the role of this court in the determination of labour disputes. In Dunlop, the court referred to Motor Industry Staff Association v Macun NO & others,[4] where reference is made to a number of decisions by the Constitutional Court which refer to the comprehensive legislative framework regulating labour relations that the LRA represents, and the establishment of the Labour Courts as specialist courts steeped in workplace issues and best able to deal with complaints relating to labour practices and collective bargaining.

[23] For the reasons reflected above, none of the grounds for exception raised by the union have merit, and Massmart must be permitted to proceed with its claims.

[24] In relation to costs, the court has a broad discretion in terms of section 162 of the LRA to make orders for costs according to the requirements of the law and fairness. This formulation has the consequence that in this court, costs not follow the result. The requirements of the law and fairness are best met by an order to the effect that each party pays its own costs, if only because this court is ordinarily reluctant to make orders for costs in disputes between collective bargaining partners where the effect of such an order may be to prejudice the relationship between them.

I make the following order:

1. The exception is dismissed.

André van Niekerk

Judge of the Labour Court of South Africa

Appearances:

For the Applicant: AT

Myburgh SC, with him I Goodman

Instructed by: ENS

Africa Inc.

For the respondents:

F Boda SC

Instructed by: Dockrat

Inc.

[1] (2018) 39 ILJ 1779 (LC).

[2] (2001) 22 ILJ 414 (LAC)

[3] [2021] 3 BLLR 221 (SCA).

[4](2016) 37 ILJ 625 (SCA) at para 18-20, referring to Chirwa v Transnet Ltd & others (2008) 29 ILJ 73 (CC) and Gcaba v Minister for Safety and Security & others (2010) 31 ILJ 296 (CC)