Article 36/2024

LabourEdge

Is an employer entitled to rely on s68(1)(b) of the LRA to claim compensation for losses suffered during a protected strike/lockout?

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  • Section 68(1) of the LRA reads as follows:
    • In the case of a 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 [Chapter IV], the Labour Court has exclusive jurisdiction –
      • to grant an interdict or order to restrain…
      • to order the payment of just and equitable compensation for any loss attributable to the strike or lock-out, or conduct, having regard to – …’ (underlining and insertion provided)
  • In Blinkwater Mills (Pty) Ltd v FAWU (2020) 31 SALLR 161 (ML); (2020) 41 ILJ 837 (ML), the high court held that any loss attributable to a strike or lockout, where such strike or lockout is protected, s68(1)(b) of the LRA is not applicable and the scenario is not covered by a statutory cause of action – it further held that such claim is to be based on the principles of a delict (the loss must be caused by the unlawful, intentional/negligent action or omission and the extent of the loss determines the quantum of the claim).
  • However, in Massmart Holdings Ltd and Others v SACCAWU (2022) 33 SALLR 274 (LC), the labour court recently, per Van Niekerk J, held that s68(1)(b) of the LRA is to be interpreted to cover the scenario where the loss is attributable to an unprotected strike/lockout or conduct in contemplation or furtherance thereof, as well as a protected strike/lockout or conduct in contemplation or furtherance thereof.

In terms of s34(1) of the BCEA, an employer may not make deductions from an employee’s remuneration unless, subject to s34(2), the employee agrees, in writing, or the deduction is made in terms of a law, collective agreement, court order or arbitration award.

A case is moot and therefore not justiciable if it no longer presents an existing or live controversy. With reference to National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others [1999] ZACC 17; 2000 (2) SA 1 (CC), how did the supreme court of appeal, in Mhlontlo Local Municipality and Others v Ngcangula and Another (2024) 35 SALLR 132 (SCA) recently deal with this issue?

The principle underlying the doctrine of peremption is that no person can be allowed to take up two positions inconsistent with one another, or, as is commonly expressed, to blow hot and cold, to approbate and reprobate when considering pursuing litigation. With reference to Qoboshiyane NO v Avusa Publishing Eastern Cape [2012] ZASCA 166; 2013 (3) SA 315 (SCA), what is the test to be applied to determine whether or not a party has perempted its right to institute legal proceedings?