About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2010
>>
[2010] ZAGPPHC 299
|
|
Springbok Box (Pty) Ltd T/A Summit Associated Industries v Dikgale and Others (1772/2006) [2010] ZAGPPHC 299 (21 January 2010)
IN THE HIGH COURT
OF SOUTH AFRICA
(NORTH GAUTENG
HIGH COURT PRETORIA)
DATE:
21 JANUARY 2010
CASE
NO 1772/2006
SPRINBOK BOX
(PTY) LTD T/A SUMMIT
ASSOCIATED
INDUSTRIES
......................................................................
APPLICANT
And
G M DIKGALE AND
170 OTHERS
..............................................
1st
AND FURTHER
(ANNEXURE
A)
...................................................................................
RESPONDENTS
JUDGMENT
SITHOLE, AJ
A. INTRODUCTION
1 This is an
application in which the Applicant approached this Court by way of a
rule nisi as a matter of urgency sometime during
January 2006. The
matter has had a somewhat tortuous trajectory n that it was first
heard by my learned brother VOSTER AJ on 23
January 2006 He made a
draft order an order of Court marked X which was slightly amended but
which is similar to the relief sought
by the Applicant, which relief
is mentioned below, and issued the relevant rule nisi on the same
date
2. Thereupon the
matter served before my learned brother BOSIELO J on 24 February
2006, and he extended the rule nisi until 16 May
2006 to the opposed
roll. Costs were reserved.
3. The matter was
subsequently heard by me on the opposed roll of 16 May 2006, ie on
the extended return day of the rule nisi. Having
heard the arguments
of counsel for the parties, I thereupon reserve judgment, more so
that there appeared to be two diametrically
opposed approaches to the
matter, namely, that this application concerns a simple common law
interdict to protect the property
and business assets of the
Applicant which have been unlawfully infringed, on the one hand, and
on the other, that this matter
concerns the furtherance of a
protected legal strike by the Respondents to demand wage negotiations
from the Applicant. These standpoints
needed further research.
4. What seems to be
an inordinate time has since passed before I could come round to
finalise and complete writing my judgment in
this matter. This is on
account of circumstances beyond my control, which included poor
health and the pressure of work on the
Bench during my acting stints
in Pretoria and Mafikeng. Any inconvenience which may have been
occasioned to the parties by the
said delay is hereby deeply
regretted. Suffice it to say that my judgment in the matter follows
below.
5. The relief sought
by the Applicant is set out in the relevant rule nisi dated 23
January 2006 and is couched in the following
terms -
“1. That the
Respondents, whose names appear in annexure
“A”, be
interdicted from -
1.1 Presenting,
obstructing, harassing, victimising or intimidating any person from
entering or leaving the Applicant’s premises
in Jobson and
Sloan Street, Rosslyn, Pretoria;
1.2 Assaulting or
threatening to assault any person, entering or living on the said
premises;
1.3 Damaging or
threatening to damage any property, including the throwing or
propelling of any objects, to any person or property,
including
vehicles, belonging to the Applicant or any person entering or living
on the said premises;
1.4 Any barricading
... or obstructing of the gates and the entrance and exit areas and
excess roads of and to the said premises;
2. That the
Respondents, whose names appear in annexure “A”, be
interdicted from coming within the radius of 200m (two
hundred
meters) from the parameter of the Applicant’s premises in
Jobson and Sloan Street, Rosslyn, Pretoria.
3. That the
Respondent be ordered to pay the costs of this application jointly
and severally, the one paying the other to be absolved,
on a scale as
between attorney and client, alternatively on the scale between party
and party;
4. That prayers 1 to
3 shall operate with immediate effect as an interim order pending
finalisation of this application on Tuesday
24 February 2006.
5. That this order
be served in the following way:
5.1 By affixing a
copy of the order to the main entrance of the premises of the
Applicant at Jobson and Sloan Streets, Rosslyn,
Pretoria; and
5.2 That the
relevant sheriff shall serve copies of the order everyday this week
until 27 January 2006 on any of the Respondents
present outside the
Applicant’s
premises at Jobson and Sloan Streets, Rosslyn, Pretoria.
6. That the sheriff
shall be directed to bring to the attention of any of the Respondents
on whom he is able to serve this order,
the provisions of Rule
6(12)(c) with regards to the reconsideration of the order.
7. That the
Applicant be allowed to approach the honourable Court on the same
papers and amplified if necessary, for the committal
of the
Respondents, upon failure of the Respondents to adhere to the interim
order granted in terms of prayer 4 above.”
B.
FACTUAL
BACKGROUND
6. The facts of this
application indicate that:
6.1 The Applicant is
Springbok Box (Pty) Ltd t/a Summit Associated Industries, with its
factory and offices at Sloan Street, Rosslyn,
Pretoria. It is common
cause that the Applicant is involved in the manufacture of wooden
cable drums and industrial packaging materials,
which are supplied on
a tender and a contract basis to cable manufacturers which supply
cables to essential services such as Telkom,
Eskom in the mining
industry as well as other national and users electrical optical
fibres and
telecommunication cables. In this application the Applicant is
legally represented by Mr B C Van den Heever SC.
6.2 Whereas the
Applicant alleges that the Respondents are all (170 of them) current
or previous employees of the Applicant, the
Respondents deny that any
of them are previous employees of the Applicant. They regard
themselves as employees of the Applicant
who are engaged in a
protected strike action due to failed wage negotiations with the
Applicant. They described themselves as employees
of the Applicant
who are opposing this application exercising their constitutional
right to strike. The Respondents are duly represented
by Ms M B
Matlejoane.
6.3 It is common
cause that on 13 October 2005 the Respondents embarked on a protected
strike and that the Applicant subsequently
locked them out from the
workplace premises in terms of the relevant legislation. At the time
of the strike and the lockout the
Respondents were apparently still
on strike and had not yet called it off. Consequently, they were
still picketing outside the
Applicant’s premises.
6.4 It would appear
that on 18 October 2005 the Applicant applied for a restraining order
against the Respondents in the Labour
Court, on the basis of unruly
behaviour within the situation of a protected strike by them. The
Respondents, however, state that
the said application is similar to
the present one and that on the return date of the said application
it was discharged with costs
on the basis that the allegations
therein, which are similar to the present ones, were found to be
untrue. They therefore accuse
the Applicants of “forum
shopping” and lacking in candour to the Court. In its reply,
however, the Applicant denies
the aforesaid accusations and that the
present application has any bearing on the previous one in the Labour
Court, more particularly
that the present one is not based on any
labour principle but is based purely on “the Respondents’
unruly behaviour,
which is not tolerable in law in general”.
6.5 On 24 October
2005, the property of the Applicant was damaged in an act of arson,
which the Applicant believes was linked to
the strike and the
Respondents. Furthermore, on 13 December 2005, the Respondents caused
a petrol bomb to be hurled at a bus transporting
temporary
replacement workers of the Applicant. Some of these workers were
injured and the bus was damaged. The Respondents, on
the other hand,
deny that any of them were engaging in any criminal or unruly conduct
on the said day and they put the Applicant
to the proof of his
allegations in this regard.
6.6 It is alleged by
the Applicant that on account of the strike and to avoid adverse
production at his factory, it recruited temporary
replacement workers
(“the workers”) to take over production once the strike
had started. The Applicant also states
that it normally closes its
operations for the holiday period on
15 December each
year, but was forced to continue its operations during 2005 until 30
December 2005 and to reopen earlier on 10
January 2006 in order to
catch up with its loss of production. These allegations are denied by
the Respondents, who state that
they are within their legal rights to
demand wage negotiations with the Applicant in that the latter hired
temporary staff before
the strike action commenced; that if Applicant
has suffered any loss of production, it is its own doing because it
hired buses
to transport the temporary staff on a daily basis for a
fee. It is common cause that Applicant has contracted the services of
a
transport company called Grundling Buses, which operates two shifts
in the morning and in the afternoon to transport the workers
to and
from work.
6.7 Whereas the
Applicant alleges that on Tuesday 10 January 2006, when the bus
transporting the workers arrived at its premises,
Respondents
gathered in front of the premises gates in Sloan Street, Rosslyn,
Pretoria and not only prevented the bus from entering
the premises,
but also intimidated and threatened the workers in the bus as well as
the bus driver. The Respondents on the other
hand, deny Applicant’s
allegations above and state that since the commencement of the strike
action, they have not engaged
in any behaviour that is unruly or any
way criminal. Besides, they say, the fact that the workers
transported daily at the Applicant’s
expense are temporary
workers from a legal point of view, the employer cannot hire
permanent staff if employers are engaged in
a protected strike.
6.8 The Applicant
states that it was forced to call the Riot Unit of the South African
Police Services (SAPS) to assist and to protect
the workers; that
after SAPS arrived, they held discussions with the Respondents after
which the bus was allowed to enter the premises
of the Applicant;
that SAPS left vehicles with SAPS members at the gate of the premises
in order to maintain order for the rest
of the day. These allegations
by Applicant are denied by the Respondents. They state that the SAPS
members had always been present
at the Applicant’s premises
since the commencement of the strike action; that the police even
tried to broker negotiations
between the parties which negotiations
resulted between the parties meeting on
16 January 2006 to
try to break the deadlock.
6.9 It would appear
that the SAPS, who had been requested by the Applicant to provide
assistance and protection to the workers on
the Applicant’s
premises on the morning and afternoon of 10 January 2006 onwards,
indicated that they cannot do that indefinitely,
as police assistance
can only be given if and when resources are available. They therefore
advised Applicant to consider obtaining
an interdict against the
Respondents. The Respondents, however, denied these allegations by
Applicant and state that if Respondents
were ordinary members of the
public, the Riot Unit of the SAPS would have arrested them; that the
reason why the police never arrested
anyone of them is because the
police realised that the Respondents are engaged in industrial action
and peaceful picketing, for
that matter.
6.10 Whereas the
Applicant alleges that from 10 January 2006 to 16 January 2006 SAPS
maintained a presence and general law and order
at its premises, the
Respondents, however, deny this allegation and state that since the
commencement of strike action the police
were at all times present
and all management arrived and left with police escort.
6.11 It would appear
that on the morning of 17 January 2006 SAPS were absent at the
premises. The Applicant alleges that Respondents
took advantage of
the SAPS absence and the burned tyres and placed big rocks in Sloan
Street leading into Applicant’s premises;
that the Respondents
also barricaded the access for pedestrians entering from the main
road to the front gate of Applicant’s
premises with a razor
wire and tree stumps, thereby preventing not only the bus with the
workers but also customers, contractors
and employees of the
Applicant from entering its premises. The Respondents, however,
denied these allegations by the Applicant
and state that on that day
(17 January 2006) the Applicant and the Union NACBAWU representing
the Respondents, held in meeting
to try to solve the dispute; that
the Applicant suggested retrenchment or the reduction of the
Respondents’ salaries; that
no resolution could be arrived at
and the meeting ended in another deadlock.
6.12 Although the
Respondents offered nothing more than a bare denial for this
allegation, it is stated by the Applicant that the
SAPS was again
contacted and it was only after the Riot Unit of the SAPS had arrived
and talked to the Respondents that the barricades
and rocks were
removed by the police and the workers’ bus was let through.
This resulted in substantial hours of production
being lost for the
day.
6.13 It is further
alleged by the Applicant that on 17 January 2006, in the afternoon,
while the workers were waiting inside the
Applicant’s premises
for the bus to arrive to transport them to their homes, the
Respondents started throwing stones at them
and in doing so damaged a
vehicle of one of the managers of the Applicant and injured some
workers. The Applicant was once more
constrained to call in SAPS Riot
Unit to ensure that the bus leaves safely with the load of employees
of the Applicant. In response
to these allegations all that the
Respondents can say
is to offer a bare denial and to refer the Court to what they have
already stated in previous paragraphs.
6.14 The Applicant
alleges that on 18 January 2006 at approximately 06:15 the bus with a
load of workers arrived at Applicant’s
premises and the
Respondents started throwing stones at the bus as it turned into
Sloan Street; that this resulted in damage to
the windows and body of
the bus as well as injuries to the workers in the bus. The
Respondents once again intimidated and threatened
the workers in the
bus as well as the bus driver; that the bus driver was forced to
reverse and head for the Rosslyn Police Station
in order to avoid
further damage to the bus and injury to the workers; that a security
officer of a private security company which
the Applicant employs to
protect the workers on the bus was hit by a stone and was taken to
hospital and had to receive stitches
to the back of his head. In
response to these allegations the Respondents denied them and state
that on 17 January 2006 three temporary
workers of the Applicant who
were identified and reported to the police assaulted a Mr H J Chauke,
who was one of the Respondents;
that Chauke was assaulted inside the
Applicant’s premises on Applicant’s instructions.; that
on the day of the Court
appearance of the three workers they were
driven by Mr Mpho Mosana, one of the directors of the Applicant.
6.15 It would appear
that after the alleged incidents on 18 January 2006 Applicant once
again contacted the SAPS Riot Unit to ensure
the safe return of the
bus to its premises. That the bus only arrived at approximately
09:00, which resulted in a two hour loss
of production. The
Respondents have nothing to say to these allegations except to give a
bare denial and to put Applicant to the
proof thereof.
6.16 In support of
its allegations on the damage to the workers’ bus, the
Applicant has filed four photographs. It also alleges
that the
incident of 18 January 2006 has resulted in Grundling Buses
terminating its services due to the fact that its property
is being
damaged and the safety of its drivers threatened. The Applicant has
attached a letter marked “C” in which
Grundling Buses
terminates the service. It holds the Applicant liable for the damage
to its bus. In response to these allegations
the Respondents simply
offer a bare denial and refer the Court to what they stated in
earlier paragraphs.
6.17 The Applicant
further alleges that it needs the workers for its survival and in
order to transport them it is now forced to
purchase a bus; that this
will result in a further financial burden for it whilst it is
currently suffering under financial constraints
due to the situation.
In response to these allegations the Respondents reiterate their
answer in paragraph 6.6 above.
6.18 Applicant also
states that the upshot of the Respondents’ unlawful and
criminal conduct is that its workers are without
transport to and
from work; that the workers are afraid to leave the premises as they
fear for their lives and have been sleeping
on Applicant’s
premises since 18 January 2006; that such situation is not conducive
for human habitation as it bears its
own risks; that a of the workers
tried to leave the premises and could only get to taxis after SAPS
was forced to protect them
with service firearms. The Respondents
denied these allegations and refer the Court to the response in
paragraph 6.7 above.
6.19 It is also
alleged by the Applicant that during the course of the morning of 18
January 2006, the Respondents also attacked
a truck of one of the
transport contractors called Multiloads, which the Applicant employs
to transport its products; that the
Respondents intimidated and
threatened the driver of the truck. In a letter which the Applicant
has attached, Multiloads has informed
the Applicant that until the
situation is neutralised and safe passage guarantee, all operations
to Applicants are stopped. The
Respondents merely offer a bare denial
to the above allegations and they put the Applicant to the proof
thereof.
6.20 Furthermore, so
alleges the Applicant, that during the evening of 17 January 2006, at
approximately 22:00, the Respondents
attacked with petrol bombs a
truck consisting of a horse and trailer which is the property of the
Applicant, in the access service
road to the Applicant’s
premises and approximately 100 meters from the Zenex petrol filling
station; that the driver escaped
with injuries resulting in him
receiving medical attention and has not returned for work since the
incident; that the said truck
was totally destroyed resulting in a
loss of approximately R350 000.00 for the Applicant. The Applicant
has attached four photos
allegedly depicting damage by fire to the
truck. In response to these allegations the Respondents simply deny
them and put Applicant
to the proof thereof. They also reiterate that
they have not engaged in any criminal or unruly behaviour since the
beginning of
the strike.
6.21 The allegation
and proposition are further made by the Applicant that it is clear
that Respondents have no respect for the
lives of the Applicant’s
employees and property; this includes the lives of members of the
public in general; that it fears
to think about the consequences if
one of the petrol bombs were misdirected directed and it exploded
near the storage areas of
the Zenex petrol filling station. In
response, the Respondents merely give a bare denial and simply say
they put the Applicant
to the proof thereof.
6.22 The Applicant
states that since 10 January 2006, the Respondents have intimidated
and threatened any vehicle, the driver and
occupants of such vehicles
approaching the Applicant’s premises, be it customers,
contractors, employees or suppliers; that
this is of great concern to
it as this is detrimental to its business. In response, Respondents
merely deny the Applicant’s
allegations and refer to what they
have already stated in previous paragraphs.
6.23 The allegations
is also made that on 19 January 2006 Applicant received a letter from
one of its suppliers, to wit, Vaal Timbers
(TVL) CC, stating that
they have cancelled all deliveries as a result of the conduct of the
Respondents. This letter is annexed
to Applicant’s papers. The
Respondents offer only a bare denial in response to the Applicant’s
allegations and merely
refer the Court to previous answers.
6.24 Applicant
states that another letter was received by it from a company called
Hans Merensky Holdings (Pty) Ltd, informing it
that on account of the
fact that their drivers are being threatened, all deliveries would be
withheld until such time that the
problem of intimidation is sorted
out. This letter has also been attached by Applicant to its papers.
In response, Respondents
take note of the contents of the letter
referred to and deny the allegations stated by Applicant. Respondents
also raise the question:
if they are engaging in this {sic) unruly
and criminal behaviour, why is it that with the presence of the
police no one has been
arrested if this behaviour does occur?
6.25 The Applicant
further states that both Vaal Timbers (TVL) CC and Hans Merensky
Holdings (Pty) Limited are major timber suppliers
to it and should
the Respondents be allowed to sabotage its operations with their
conduct, this will result in job losses and suffering
among families
of his employees. In response, Respondent give a bare denial and
simply put the Applicant to the proof of its allegations.
6.26 Applicant
expresses the fear that if Respondent are allowed to continue with
this type of conduct, it will definitely soon
result in serious
injuries to the workers, customers, other employees and its property
and might lead to the total closure of its
business. The Respondents
merely deny these allegations by Applicant and put it to the proof
thereof.
6.27 It is also
alleged by Applicant that individual Respondents are acting
collectively, incite action and do whatever they can
to disrupt the
normal business operations of the Applicant, including public
indecent alcohol abuse at Applicant’s factory
gate, that the
Respondents’ conduct requires constant vigilance
of the SAPS
Riot-Unit, which cannot be provided forever. Once more, the
Respondents offer a bare denial to these allegations and
refer to
previous answers they gave.
6.28 Lastly, the
Applicant states that it is in possession of a video recording of
approximately two and a half hours which has
captured the
Respondents’ misconduct and criminal behaviour; that it is in
the process of making photos of some of the incidents
from this video
recording, and these will be made available at the hearing of the
matter, should it become able to produce the
photos in time. The
Respondents have simply taken note of these allegations.
C.
THE ISSUES TO
BE DECIDED
7. It is evident
from the comprehensive factual background above that Applicant has,
in its application papers, given a long litany
of its woes. Some of
Applicant’s serious allegations are denied by the Respondents,
while others are met with bare denials
coupled with repetitions. At
the heart of the matter, however, is whether Applicant is, on the
basis of the facts, entitle to the
relief it has applied for and
whether such relief can be trumped by the Respondents’ defence,
to wit, that their conduct
is lawful in that it is in furtherance of
a protected legal strike to demand wage negotiations from the
Applicant. For the Applicant
to succeed in its application, which is
for a final interdict, it will have to prove its case on a balance of
probabilities that:
7.1 It has a clear
right;
7.2 There is an
injury actually committed or reasonably apprehended; and
7.3 There is an
absence of similar protection by any other ordinary remedy (see
Setlogelo v Setlogelo
1914 AD 221
at 227).
D. THE CASE FOR THE
APPLICANT Whether Applicant has a clear right?
9. In his head of
argument counsel for the Applicant contended and submitted that:
9.1 It is common
cause that Applicant is in the business of the manufacturing of
wooden cable drums industrial packaging material
at its factory and
business premises situated at Sloan Street, Rosslyn, Pretoria. As
such the Applicant has a clear right to trade
and to do business and
to be commercially active without undue interference and disturbance
by persons such as the Respondents.
Furthermore, the Applicant is
entitled to so conduct its business and engage in its commercial
activities without fear of outside
intimidation of its customers and
personnel and without fear of damage to its assets or property. This
is not in dispute. It follows
that, on the papers, the
Applicant duly
established a clear right, which if infringed, deserves the
protection of the Court.
An act of
interference
10. The Applicant’s
case in this regard is that which he set out in paragraph 6, 7 and 8
of the founding affidavit. These
paragraphs contain factual
allegations by the Applicant in respect of the actions performed by
the various Respondents on the various
dates set out therein. These
actions include the intimidation, obstruction, arson, malicious
damage to property, assault and others
clearly infringe upon the
right of the Applicant to freely conduct its business as it is
entitled to do. It is furthermore threatening
to the safety and
security of its personnel, its customers and suppliers have resulted
in major damage in some of its assets. In
this respect the Applicant
referred the Court to the following annexures in support of the above
submission:
10.1 Annexure B,
which is a letter by Multiloads, one of Applicant’s suppliers,
dated 18 January 2006 addressed to Applicant.
10.2 Annexure G, a
letter of HM Holdings also a supplier of the Applicant, dated 18
January 2006 and addressed to the Applicant.
10.3 Annexure F, a
letter of another supplier of the Applicant called Vaal Timbers (TVL)
CC dated 19 January 2006 and addressed
to the Applicant.
10.4 Annexure C, a
letter of Grundling Buses faxed to Applicant on 18 January 2006 as
well as annexures B1 to B4 which are photographs
depicting damage
caused to one of the Buses owned Grundling Buses.
10.5 Annexures E2 to
E4 which are photographs depicting damage caused to Applicants horse
and trailer which was allegedly set alight
and totally destroyed by
the Respondents on 18 January 2006.
10.6 The Applicant’s
right to freely conduct its business in a peaceful and undisturbed
manner and its right to use and enjoyment
of its property have been
and are still being seriously infringed by the Respondents’
conduct. Besides the Respondents have
persisted in such criminal
activities, despite the Applicant’s efforts to curtail and to
put a stop to the activities by
calling in the help of the South
African Police Services (SAPS). Once the SAPS left the premises, the
Respondents resumed their
illegal and criminal activities.
Absence of any
other remedy
11. The Applicant
has no other remedy but to approach the Court for an interdict
restraining the Respondents from performing their
actions as more
fully set out in the draft order, the Respondents are impecunious and
the Applicant has no prospect of recovering
its losses caused by the
illegal actions of the Respondents from them in a civil suit. As
pointed out in the founding papers, the
SAPS have informed the
Applicant that it cannot be present at the Applicant’s premises
continuously to offer protection to
its business, its customers, its
suppliers and its property. As stated already, as soon as the SAPS
leave the premises, the Respondent
resume the illegal and obstructive
activities.
On the Respondents’
case
12. The Respondents
seems to be labouring under the impression that the Applicant has, in
the present application, chosen the wrong
forum. This is so in the
light of the allegation by Respondents in their answering affidavit
that an application was brought by
the Applicant in the Labour Court
in October 2005 in that the present application is merely a reshaping
of that case by the addition
of new facts and the changing of dates.
Applicant submits that the present application is not based on any
employment contract
between the Applicant and any of the Respondents.
Also, it does not curtail or restrain the Respondents from exercising
any of
their lawful rights to participate in the protected strike, to
picket lawfully, and to insist on wage negotiations. It concerns
the
protection of the Applicant’s clear right in respect of the
conduct of its business and the use and enjoyment of its
assets and
property. Furthermore Applicant submits that it is common cause that
the strike and the lockout referred to in the application
where the
background facts leading to the application are set out, comply with
the provisions of the Labour Relations Act and are
therefore
protected. It follows that section 68 of that Act is not applicable.
This section only applies to an unprotected strike
or lockout. It
also follows that this Court has the necessary jurisdiction to
entertain this application. Besides, the temporary
interdict that was
granted in the Labour Court on 18 October 2005 which interdict was
discharged on 23 October 2005 was not founded
on the illegal and
criminal actions which form the basis of the present application,
which actions only occurred after 23 October
2005.
On whether
Respondents’ version discloses a defence or whether it results
in
material disputes of
fact being raised on the papers
13. The Applicant
further submits that the Respondents’ version as set out in
paragraphs 18 to 47 of the answering affidavit
in response to
Applicant’s material factual allegations and cause of action as
set out in paragraphs 6, 7 and 8 of the founding
papers amounts to a
bare denial of the essential facts. It follows that no real dispute
of fact arises in respect of any material
factual allegation made by
the Applicant in setting out its cause of action. In support of the
above
submissions the
Applicant referred the Court to the work by Herbstein & Van
Winsen “The civil practice of the Supreme
Court of South
Africa" 4th ed page 238 as well as the following case law.
13.1 Room Hire Co
(Pty) Ltd v Jeppe Street Mansions (Pty) Ltd
1949 3 SA 1155
(T) 1165;
13.2 Soffiantini v
Mould
1956 4 SA 150
at 154G-H; and
13.3 Plascon Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 3 SA 623
(A)
634H-635B. Applicant submits that in view of the aforegoing
authorities, if the bare denials of the Respondents of the factual
allegations made by the Applicants in paragraph 6, 7 and 8 of its
founding affidavit are carefully scrutinized, they do not, in
the
sense described above, raise a real genuine or bona fide dispute of
fact. This is strengthened by the presence of the police
at the scene
which is common cause. Also annexures B1 to B4 and E1 to E4 and F and
G strengthen the above submissions. The bare
denial thereof does not
raise any real dispute of fact. As to annexure G the Respondents in
their answering affidavit, merely take
note of the contents thereof,
without denying it. Consequently, the Applicant submits that:
(a) A proper case
has been made out by the Applicant for an order in terms of prayers
1, 1.1, 1.2, 1.3, 1.4, 2 and 3 of the draft
order;
(b) The Respondents
disclosed no defence against the Applicant’s case; and
(c) No real and bona
fide genuine material dispute of facts exist on the papers.
14. The Applicant
therefore request the Court to grant an order as set out in paragraph
(a) above and to order the Respondents’
to pay the costs of
this application jointly and severally on an attorney and client
scale.
E.
THE CASE FOR
THE RESPONDENTS
15. In her heads of
argument counsel for the Respondents, after giving a summary of the
Applicant’s version, set out the Respondents’
version,
contentions and submissions as follows, that:
15.1 It cannot be
disputed that all the Respondents are still employees of the
Applicant and have since October 2005 being engaged
in a protected
strike regarding wage negotiations.
15.2 It is submitted
that a protected strike loses its protection in terms of section 67
of the Labour Relations Act when the underlying
dispute is settled.
The Applicant is not telling the truth when saying that it is not
sure about the status of the strike.
15.3 Strikers
engaging in a protected strike are entitled to protection against
unlawful interference with the exercise of their
right to strike and
picket even after they have been dismissed. Reference is made to the
case FGWU and Others v The Minister of
Safety and Security and Others
1999 (4) BLLR 332
(LC).
15.4 The dictum of
ZONDI J in Picardi Hotels Limited v FGWU and Others
1999 (6) BLLR 601
(LC) is quoted by the Respondents to illustrate that the learned
judge arrived at the same conclusion as in subparagraph 16.3 supra.
15.5 It is submitted
on behalf of the Respondents that Applicant’s version that the
Respondents are all current or previous
employees cannot be accepted
so too the Applicant’s version that some of the employees were
on fixed term contracts and such
contracts have lapsed, because a
refusal to renew a fixed term contract is also a form of dismissal.
This implies that the employment
relationship outlives the contract
in circumstances such as those in the present matter.
15.6 In the light of
the aforegoing, serious doubt is thrown upon Applicant’s
version that the fact that some of the Respondents
have been
dismissed or their fixed term contracts have lapsed gives the Court
jurisdiction. All the Respondents are still employees
of the
Applicant. This application involves a relationship between employer
and employee and further involves strikes and lockouts
which fall
within the exclusive jurisdiction of the Labour Court.
15.7 It is common
cause that the Applicant brought a similar application in October
2005 in the Labour Court. The application was
similarly brought in
the nature of this application in that the allegations were similar
to the present allegations.
15.8 The allegations
similar to those in casu were bound to be untrue by the Labour Court.
The Applicant is not telling the truth
by saying that the rule nisi
in the Labour Court was uplifted {sic). The rule was discharged and
VAN ZYL AJ gave reasons which
were that the Applicant is accusing the
Respondents with all these allegations but fails to present evidence
to that effect. The
learned judge said the Applicant mentions assault
of temporary employees but fails to mention who were assaulted and by
whom. There
were also no medical records to that effect.
15.9 The Applicant
mentions that on 24 October 2005 its property was damaged in an act
of arson. This allegation was not mentioned
in the application in the
Labour Court. Further, the Applicant fails to mention he was involved
in that {sic).
15.10 It is
submitted that the Respondents deny that they are involved in any
unruly behaviour alleged by the Applicant. The Respondents
maintain
that they are engage in a protected strike and they picket peacefully
outside the Applicant’s premises. It is also
submitted that
since the commencement of the strike action, the police were present
and the Respondents would have been arrested
if they engaged in any
criminal activities.
15.11 On January
2006 the Applicant and NACBAWU, representing the Respondents, held a
meeting to try to resolve the dispute. The
Applicant suggested
retrenchment or deduction of Respondents’ salaries. No
resolution was reached. The Applicant is not telling
the truth by
saying that on
17 January 2006 the
Respondents barricaded access to the Applicant’s premises. The
Respondents were waiting for their union
to come and report about the
meeting whilst waiting, they could not have anticipated another
deadlock and behave in an unruly manner.
15.12 The Applicant
also failed to make out a case for an interdict because of the
following: the final interdict affects a final
determination of
rights. It is granted in order to secure a permanent cessation of an
unlawful course of conduct or state of affairs.
For the grant of such
an order there are three requisites all of which must be present:
15.12.1 Clear right:
- existence of a clear right is a matter of substantive law. Whether
that right is clearly established is a
matter of evidence. In order
to establish a clear right the Applicant has to prove on a balance of
probabilities the right which
it seeks to protect. See Nienaber v
Stuckey
1946 AD 1049
at 1053.
15.12.2 No other
remedy: - the Court will not in general grant an interdict when the
Applicant can obtain adequate redress in some
other form of ordinary
relief. See Peri-Urban Health Board v Sandhurst Gardens (Pty) Ltd
1965 1 SA 683
(T) 684G.
15.13 Lastly it is
submitted that the Applicant has an existing remedy which will afford
the Applicant some results. The Applicant
can resume negotiations
with the union which will then suspend the strike action. The
Applicant cannot avoid bargaining by jumping
from one Court to
another seeking to suppress the Respondents’ constitutional
right to strike.
15.14 The
Respondents pray that the rule nisi be discharged with costs.
F.
EVIDENTIARY
ANALYSIS AND FINDINGS
16. From the above
comprehensive factual background it is clear that the following facts
are common cause:
16.1 The identity of
the Applicant;
16.2 The identity of
the Respondents;
16.3 The fact that
all the Respondents have knowledge of the application and the return
date in that they are duly represented;
16.4 That at the
time of the hearing of the main application all the Respondents were
or still are employed by the Applicant;
16.5 That the
Respondents embarked on a protected strike on 13 October 2005;
16.6 That on 13
October 2005 the Respondents were legally locked out by the
Applicant;
16.7 That temporary
workers were hired by the Applicant to avoid ... a standstill of its
business;
16.8 That the
temporary workers have been transported by means of Grundling Buses
to and from work;
16.9 That the South
African Police Services (SAPS) were called to the Applicant’s
premises on various occasions;
16.10 The
Respondents were picketing outside the Applicant’s premises;
and
16.11 That for
Applicant to be entitled to a final interdict it must proof that
firstly, it has a clear right, and secondly, an
act of interference
and thirdly, no other ordinary remedy.
Clear Right
17. Whereas the
Applicant submits that it conducts its factory and business at Sloan
Street, Rosslyn, Pretoria and as such it has
a clear right to trade
and do business and to be commercially active without undue
interference and disturbance from people such
as the Respondents,
they contend that Applicant has failed to make out a case for an
interdict because, inter alia, the existence
of the clear right is a
matter of substantive law; whether that right clearly established is
a matter of evidence; and in order
to establish a clear right the
Applicant has to prove on a balance of probabilities the right which
it seeks to protect. Well,
the fact that it is common cause that the
Applicant conducts the business of manufacturing of wooden cable
drums and industrial
packaging materials at Sloan Street, Rosslyn,
Pretoria, where the Respondents are employed, means that it has a
clear right to
trade and to do business and to be commercially active
without undue disturbance by a third party. This right is derived
from section
22 of the Constitution Act 108 of 1996 which states that
“Every citizen has the right to choose their trade, occupation
or
profession freely. The practice of a trade, occupation or
profession may be regulated by law.” It follows that the
contention
made on behalf of the Applicant that it is entitled to so
conduct its business and engage in its commercial activities without
fear of outside intimidation of its customers and personnel and
without fear of damage to its assets or property, is valid and found
by the Court as such. Moreover, apart from evidence in the papers
establishing Applicant’s clear right it has also proved
on a
balance of probabilities that such right if infringed, deserves the
Court’s protection. See Nienaber v Stuckey
1946 AD 1049
at
1053.
An act of
interference
18. There is
undoubtedly ample evidence in the papers regarding acts of
interference at the Applicant’s premises which acts
are
directly linked to the strike action by the Respondents. The damage
on the
Applicant’s
property on 24 October 2005; the intimidation incident of 10 January
2006 at the entrance gate of the Applicant’s
property; the
burning of tyres and barricading of the road leading to Applicant’s
gate with rocks and tree stumps and the
stone throwing on
17 January 2006; and
the intimidation and threatening of a bus driver and employees of
Applicant in a bus which occurred in the
morning of
18 January 2006,
indubitably serve as hard evidence of acts of interference to
Applicant’s business. Moreover, such evidence
is supported by
the contents of letters from Multi-Loads dated
18 January 2006,
Vaal Timbers dated 19 January 2006, HM Holdings dated 18 January 2006
who are all suppliers of the Applicant. A
letter from Grundling Buses
suspending transport services to Applicant’s premises dated 19
January 2006; photographs of a
damage bus belonging to Grundling
Buses; damaged by fire to the horse and trailer belonging to
Applicant on 18 January 2006, all
unquestionably indicate unlawful
and reprehensible actions of those to whom the Applicant’s
accusatory finger points. And
yet such acts of interference are not
dealt with in the heads of argument filed on behalf of the
Respondents. They are either studiously
ignored for some reason or
other, or this is a serious oversight and omission on the part of the
drafter of such heads. Furthermore,
I cannot fail to notice that in
the answering affidavit of the Respondents they take notice of the
existence of photos in the possession
of the Applicant which
implicate them directly. Our law on pleadings states that taking note
of allegations is tantamount to admitting
such allegations. (See
Ramakulukusha v Commander,
Venda National Force
1989 2 SA 813
(V).) I am, therefore, constrained to find that the
Applicant succeeded in proving the second requirement of an act of
interference
as stated in Setlogelo v Setlogelo supra.
No other remedy
19. Counsel for the
Respondents, correctly, in my view, quoted the law as stated in
Peri-Urban Health Board v Sandhurst Gardens
(Pty) Ltd
1965 1 SA 683
(T) 684G that the Court will not, in general, grant an interdict when
the Applicant can obtain adequate redress in some other form
of
ordinary relief.
20. In its founding
affidavit, the Applicant has alleged that it has no other remedy
because there is no prospect of recovering,
by way of a civil action,
damages arising from the loss caused by the illegal actions of the
Respondents because they are impecunious.
Besides, the Applicant
alleged that the South African Police Service have informed it that
they cannot be present at its premises
continuously in order to offer
protection to its business, customers, suppliers and property.
Applicant also states that the Respondents
tend to resume their
illegal and obstructive activity as soon as SAPS leaves the premises.
21. In dealing with
the issue the Respondents submitted that the Applicant does have an
existing remedy which will afford it some
results. They contend that
the Applicant can resume negotiations with the union which will then
suspend the strike action; that
Applicant cannot avoid bargaining by
jumping {sic) from one Court to another seeking to suppress {sic) the
Respondents’ constitutional
rights to strike.
22. The damage to
Applicant’s property and to the Grundling Bus has already been
established beyond doubt. This is extensive
damage, to say the least.
Such damage did not occur on its own without human causative agency.
At law it cannot just happen with
impunity for the law attaches
consequences to whomsoever caused it. It is reprehensible. If
Respondents are indeed impecunious,
that does not, per se, give
anyone of them the licence to indulge in violent strike action which
results in damage to the property
of others. Neither is a protected
strike a shield against criminal persecution and civil action where
there is resultant damage.
Impecuniosity means having little or no
money at all. To sue an impecunious person is tantamount to suing a
street beggar. How
much would one recover as damages in a civil suit
from such a person? Any order of Court for payment of damages against
a penniless
person would be no more than a brutal brutum fulmen, full
of sound and fury but signifying nothing. Besides, the Respondents do
not deny that they are impecunious. They instead suggest the
resumption of negotiations between Applicant and their union so as
to
suspend the strike action. This, to my forensic knowledge, is not
“any other ordinary remedy” as posited in the
Setlogelo
case, supra. I accordingly find that the Applicant has convinced the
Court that that there is, in casu, an absence of
a similar protection
by any of other ordinary remedy, as a requirement for obtaining an
interdict.
23. Lastly, it needs
to mentioned that the Applicant has been accused by the Respondents
of “forum shopping" and of “jumping
from one Court
to another seeking to suppress the Respondents’ constitutional
right to strike”. This is undoubtedly
a serious allegation
which indirectly impacts on the jurisdiction of this Court. Well, I
do not know what happened in other Courts
between the parties but in
this Court the matter involved an application for a plain and simple
common law interdict to protect
the property and business assets of
the Applicant from any further damage. The matter has nothing to do
with the exercise of the
Respondents’ right to strike. The
right to strike is, of course also protected by our Constitution (Act
108 of 1996) in section
23 on Labour Relations. But the right to
strike does not grant one a licence to damage property belonging to
others. Strikes and
lockouts are concepts which are applicable to the
context of labour relations. One cannot be heard raising the defence
of “exercising
the right to strike” against a prohibitory
interdict aimed at protecting life, limb and property. To do so would
be absurdity
of the highest order.
I accordingly
dismiss any submission that this Court has no jurisdiction to hear
this matter because the Applicant is “forum
shopping”. I
also accordingly hold that the relief sought by the Applicant cannot
be defeated by the Respondents’ defence
that their conduct is
lawful in
that it is in
furtherance of a protected legal stnke to demand wage negotiations
from the Applicant.
G.
CONCLUSION AND
ORDER
24 In the light of
the above analysis and findings, I arnve at the ineluctable
conclusion that the rule nisi has to be confirmed
and the Applicant
has to succeed In the result the following order is hereby made
241 The rule nisi
granted by this Court on 23 January 2006 is hereby confirmed
24.2 The relief
sought by Applicant in paragraphs 1 and 2 of the draft order which
was made an order of Court by my learned brother
VORSTER AJ on 23
January 2006 is hereby granted
24 3 No order as to
costs is made because the Applicant has abandoned the prayer for
costs
1772/2W)6
M N S SITHOLE
ACTING JUDGE OF
THE NORTH GAUTENG HIGH COURT
Heard on: 16 May
2006
For the Applicant
Adv B C Van den Heever SC
Instructed
by: Messrs Schoeman Bosch Inc Pretoria
For the
Respondents Adv M S Matlejoane
Instructed by
Messrs Ramushu Morare Inc Pretona
Date of Judgment:
January 2010