Massmart Holdings Ltd and Others v South African Commercial Catering and Allied Workers Union
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | Andre Van Niekerk J |
| Judgment Date | 23 May 2022 |
| Court | Labour Court |
| Hearing Date | 20 May 2022 |
| Docket Number | JS 757/2021 |
Van Niekerk J:
Introduction:
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.
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).
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
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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the union contends that the statement of claim does not disclose a cause of action that Massmart relies on certain repealed, alternatively, incorrect regulations.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.
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
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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).)
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.
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
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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...
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