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[2018] ZAECPEHC 41
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Pitsiladi NO and Others v Ngqisha and Others (1504/2018) [2018] ZAECPEHC 41 (7 August 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION, PORT ELIZABETH
CASE NO: 1504/2018
Date heard: 31 July 2018
Date
delivered: 7 August 2018
In
the matter between
NICHOLAS
PETER PITSILADI
N.O. First
Applicant
ARISTIDES
PETER PITSILADI
N.O. Second
Applicant
CONSTANTINE
PETER PITSILADI
N.O. Third
Applicant
MARIA
COUTSOURIDES
N.O. Fourth
Applicant
And
KHANYA
NGQISHA First
Respondent
PEPSI
JAMES Second
Respondent
ECONOMIC
FREEDOM
FIGHTERS Third
Respondent
JUDGMENT
GOOSEN,
J.
[1]
The
applicants seek a final interdict restraining the respondents from
organising, facilitating, promoting, encouraging or inciting
any
unlawful activities on the applicants’ business premises. An
interim interdict was granted by this court on an urgent
basis on 24
April 2018. The incident giving rise to the interim interdict
occurred on 21 April 2018. Following a further incident
on 16 June
2018, the applicants filed a supplementary affidavit. The first
respondent has filed an answering affidavit.
[2]
The
applicants are the Trustees of the Athina Trust which conducts
business as a retailer of liquor products. It conducts this business
at multiple stores which are branded as Prestons Liquor Scores
(hereinafter referred to as “Prestons”). These are
located throughout Port Elizabeth, as well as in other parts of the
Eastern Cape.
[3]
The
first and second respondents are members of the third respondent,
which is a registered political party. The third respondent
is
represented in the National Assembly, several provincial
legislatures, Metropolitan and other local councils. The first
respondent
is a member of the local leadership structure of the third
respondent. He deposes to an affidavit in that capacity.
[4]
It
is necessary to set out, in some detail, the events giving rise to
the present application. The facts are essentially common
cause. The
sequence of events commenced on 13 April 2018. On that day an email
written by the first respondent on behalf of the
third respondent,
was sent to the email address of Prestons. The first respondent
stated that the Nelson Mandela Bay EFF (the third
respondent) had
received reports regarding the exploitation of workers at the
Prestons Walmer store, as well as complaints regarding
alleged
misleading promotional prices. The first respondent requested a
meeting to address the issues.
[5]
On
16 April 2018 Mr Wesley Rundle (hereafter “Rundle”), the
applicants’ Human Resources Manager, replied. He thanked
the
first respondent for raising the matter stating that the management
would, together with the trade union, investigate the matter.
This
solicited an immediate response. In it the first respondent stated
that “we are not satisfied with your response”.
He
indicated that the third respondent insists on a meeting. The email
goes on to state:
I
would like to make you aware that we take these matters very
seriously and we hope you will grant us an opportunity to address
them through a meeting. If you are declining to meet with us, you
will then give us no choice but to mobilise our members and occupy
Preston Stores as a demonstration of our unhappiness. We will also
use media to expose the conduct of Preston Stores.
[6]
Rundle
replied to this email on 18 April 2018. The response is lengthy. Only
the salient points, which are not in issue, need be
referred to. They
are that the management of Prestons was not unwilling to meet. What
was required was an official letter from
the third respondent as well
as details regarding the alleged complaints, so as to enable them to
be investigated. It was pointed
out that the applicants operate two
stores in Walmer and that it requires the store to be identified. The
applicants state that
the statements regarding occupation of the
stores constitute intimidating tactics designed to pressure the
applicants into meeting
with the EFF.
[7]
To
this the third respondent replied on 18 April 2018 as follows:
We
are not going to engage on a tedious exercise of sending long emails
back and forth. All you have said could have been articulated
in a
meeting. From what I gather, Preston Stores has declined to meet with
the EFF.
Tomorrow
I will email you an official letter from the EFF NMB Region stating
our resolution to occupy Preston Stores due to failed
attempts to
meet with Preston Store officials. Occupation will be very legal. We
will even invite the Police upon our occupation
as we are a
law-abiding political party.
[8]
On
19 April 2018, Rundle again wrote to the first respondent. He stated
that:
By
continuing to make threats of conduct that would be unlawful, you are
making it clear that in reality you do not actually want
to have a
meeting with us, even though we are prepared to meet with you.
We
repeat that we have not refused to meet with you.
Why
will you not comply with our lawful and legitimate pre-meeting
requests?
[9]
The
first respondent, despite an earlier statement that no purpose would
be served by exchange of emails, addressed two further
emails to
Rundle on 19 April 2018. In the first he states:
This
is to place on record that our request to meet with the officials of
Preston Stores has been declined.
Due
to our request being declined, the EFF will now mobilise its members
in order to occupy Preston Stores. The occupation will
be ongoing
until Preston Stores is persuaded to meet with the EFF leadership.
[10]
In
the second email, the first respondent states that a date and time
should be set for a meeting. He further states that the decision
to
occupy Prestons stores emanates from the EFF’s view that the
applicants are not prepared to meet with it.
[11]
On
20 April 2018, Rundle wrote to the first respondent stating that
continued threats to occupy the stores are intolerable and called
for
an apology. He reiterated the request for details regarding the
alleged complaints.
[12]
A
still further exchange of emails followed on 20 April 2018, with
neither party altering the stance adopted. On 20 April 2018,
the
applicant’s attorneys wrote to the first respondent. They
stated that the threatened occupation is unlawful; that such
occupation would disrupt the applicants’ business, be
prejudicial and cause harm. They required an undertaking by Monday
23
April that such threats would not be carried out, failing which the
applicants would approach the court for an interdict.
[13]
The
first respondent replied stating that no threats had been made. It
records in the email that:
We
will simply walk into Preston Store as any customer and make our
complaints.
[14]
In
a further email the first respondent wrote to the applicant’s
attorneys as follows:
And
please go tell your client to look up the word occupy in the
dictionary. He will be surprised that it is not associated with
any
threats. Simply means a filling up of space. So go and tell your
client that we will enter into Preston as customers in our
numbers
and fill up space and then asked for a manager. Very legal. We will
then persuade Prestons to have a meeting with EFF.
Very legal. So you
can see that even though we are Africans, we are very civil.
[15]
On
21 April 2018, approximately 25 persons wearing EFF party regalia
entered the applicants’ store at 121 Main Road, Walmer.
They
proceeded to block the aisles and access to the tills. They sang
songs and clapped their hands. They made no attempt to purchase
any
items. According to the Prestons staff present, including the
manager, Mrs Eatwell, customers were intimidated. Members of
the
Atlas Security company were summoned as were members of the South
African Police Services. Neither Atlas personnel, nor the
Police took
any steps to remove the persons from the store. Some members of the
third respondent demanded to speak to a director
of the applicants.
Mrs Eatwell telephoned the first applicant. The first applicant spoke
to one of the third respondent’s
members on the phone. He
indicated that the meeting could not be held until the other
applicants had agreed and that this would
not occur until 23 April.
The first applicant stated that the store would close. The members of
the third respondent then left
the store. They however, remained in
the vicinity of the store for some time after it had closed.
[16]
Both
the first and the second respondent were present during the incident
on 21 April 2018. According to Rundle, video footage recorded
during
the incident records the second respondent as playing a leading role
in the events. It records too that he stated that the
third
respondent intends to close down all Prestons stores until their
demands are met.
[17]
On
Monday 23 April 2018 the applicants launched the present application.
The matter came before me on 24 April 2018. The first and
second
respondents appeared in person. An interim order was granted with the
return date being 26 June 2018.
[18]
What
followed the granting of the interim interdict on 24 April 2018 need
only be recounted briefly. On 2 May 2018, the first applicant
and Mr
Heshu, a business associate, met with the first and second
respondents. At that meeting certain matters were raised by the
first
and second respondents. The first applicant undertook to take these
up with the second to fourth applicants. The first applicant
stated
that they would revert to the third respondent.
[19]
On
8 May 2018 Rundle, on instructions of the applicants, wrote to the
first respondent. The email records the issues discussed.
It stated
that all of the issues raised (the details of which need not be set
out)
[1]
could have been addressed by the employees and / or their union
representatives. It states that there was no necessity for the
EFF,
as a political party, to become involved. The letter records that the
applicants will seek a final interdict to restrain unlawful
conduct
on the return date.
[20]
On
Saturday 16 June 2018, at approximately 12h10, the area manager of
Prestons, Mr Owen, received a telephone call from Mrs Eatwell,
the
manager of the Walmer store. She informed him that a man wished to
speak to him on the phone. This man, who was at the store,
did not
give his name. He said that he was from the Walmer Community Forum.
He asked why an interdict had been obtained by the
applicants. He
said that Prestons workers had certain issues which the EFF had taken
up on their behalf, but that Prestons management
had not responded to
these. Owen said he would take the matter up with the senior
management.
[21]
According
to Eatwell, and other staff members who deposed to supplementary
affidavits, there were several men in the store at the
time. They
placed a large amount of liquor on the counters at the tills. In one
instance, the sale was rung up by the cashier.
The person who was at
the till, however, said he would rather go to another liquor store to
make his purchase. Two other till points
were engaged in similar
manner. At one, a man sought to purchase some snacks. When these were
rung-up he walked away back into
the store. The effect was that other
customers could not utilise the till points to make their purchases,
thus disrupting the normal
course of business of the applicant.
[22]
Earlier
that morning Mrs Eatwell received a telephone call from a person who
said she was a reporter on the Herald newspaper. She
stated that she
had received a call from the EFF to inform her that they were
en
route
to the store. When asked for an interview, Mrs Eatwell declined.
[23]
During
the incident described above, members of the SAPS arrived. Mrs
Eatwell showed them a copy of the interim order which had
been
obtained. They informed her that they could not act on it since none
of the persons blocking the tills was wearing any clothing
that could
identify them as EFF members or supporters. Mrs Eatwell accordingly
went to the SAPS charge office nearby to lay a charge
of trespassing.
When she returned the persons had left.
[24]
As
stated above, the first respondent deposed to an answering affidavit.
At the hearing of the matter, the first respondent appeared
in
person, representing both himself and the other respondents.
[25]
The
answering affidavit does not place in dispute the circumstances which
gave rise to the incident of 21 April 2018. There is no
denial of the
detailed allegations made by the applicants in respect of the
correspondence or the events of 21 April 2018.
[26]
The
first respondent states that the third respondent received a report
from workers and community members relating to “exploitation”
and “misleading promotional prices” on 13 April 2018. The
affidavit refers to workers of “Spar”. In argument,
counsel for the applicant submitted that this was a telling slip
since similar actions had been carried out in relation to that
business. The first respondent however stated that this was merely an
error.
[27]
It
was admitted by the respondents that following receipt of the
complaints, they had pursued an attempt to meet with the applicants
as set out in the correspondence referred to above.
[28]
In
relation to the events of 21 April 2018, the respondents stated only
that the “engagement with management” was peaceful.
The
first respondent admits that he initially denied being present in
email correspondence addressed to the applicants. He did
so because
he was daunted by the court process.
[29]
The
first respondent admits that a meeting took place on 2 May 2018. He
states that the applicants agreed to set up another meeting
once they
had investigated the issues raised. When, on 8 May, he received an
email from Rundle communicating the outcome of the
applicants’
investigations, he considered that the applicants had reneged on the
undertaking to meet again. The respondents
communicated this to
community members and the workers of Prestons. He states that the
community members were informed that “they
would need to deal
with the issues themselves”.
[30]
The
first respondent confirms that the respondents were informed on 16
June 2018, that community members had made their way to Prestons
“in
an attempt to speak with the management and also to purchase some few
items”. He states that the respondents however
had nothing to
do with the incident at the store on that day. The respondents
assert, in opposing the final interdict, that the
incident on 16 June
2018 was unrelated to the matters taken up by them 21 April and that
“the community members” were
acting as individual
customers who were entitled to raise complaints. It was submitted
that to grant a final interdict would “instill
fear upon my
limits in regard to raising certain issues in future with the store
management”.
[31]
The
requirements for granting a final interdict are well established. The
applicant must establish a clear right; an infringement
of that
right; an injury actually suffered or a reasonable apprehension of
such harm; and that there is no other satisfactory remedy
available
to it.
[32]
There
are, as is apparent from the factual averments made by the parties,
no material disputes of fact. Significantly the sequence
of events
giving rise to the incident on 21 April 2018, and what occurred on
that date, are not in dispute. The correspondence
clearly establishes
a threat by the respondents to mobilise the third respondent’s
members to “occupy” the premises
of applicants’
businesses in the event that no meeting is held. That threat was
carried out on 21 April 2018.
[33]
The
first respondent, both in his affidavit and in argument, sought to
suggest that the “threat” was not unlawful. As
I
understood the position adopted by the respondents, it was that they
were entitled to insist upon a meeting with Prestons management,
and
were also entitled to pressure management to agree to such a meeting.
The “occupation” by “filling the space”
amounted to no more than applying legitimate pressure on the
management to meet with the third respondent.
[34]
The
first assumption made by the respondents is wrong in law. The
applicant is under no legal obligation to meet with the third
respondent in relation to matters which bear upon contractual
employer-employee relations or which bear upon matters affecting
consumer interests. The third respondent cannot demand a meeting as
of right. Matters concerning employer-employee relations are
regulated by an employment contract and by the provisions of the
Labour Relations Act
[2]
;
the Basic Conditions of Employment Act
[3]
and a raft of related labour legislation. This legislation gives
recognition to employee organisations and trade unions and provides
a
framework and set of procedures and mechanisms by which disputes are
to be resolved. In similar vein the Consumer Protection
Act
[4]
seeks to promote and protect the rights and interests of consumers.
It provides mechanisms by which complaints are to be investigated
and
resolved and such resolutions enforced against business entities.
[35]
While
the third respondent may, if it wishes, mobilise its supporters in
protest against infractions of the law, it is however obliged
to do
so lawfully. The legal framework referred to above forms part of the
body of law, sanctioned by the Constitution, which organs
of state,
public and private entities and persons are obliged to adhere to.
Political parties equally are obliged to comply with
the rule of law.
It is not open to political parties, or any person for that matter,
to ride roughshod over the established legal
process by engaging in
unlawful conduct.
[36]
The
undisputed facts establish that the respondents acted unlawfully on
21 April 2018. The “occupation” of the applicant’s
business premises in Walmer clearly interfered with the applicants’
normal course of business: aisles were blocked; doors
were closed and
customers prevented from going about their normal business.
[37]
The
email addressed by the first respondent to the applicants on 19 April
contained a clear and unequivocal threat that the applicants’
business premises would be “occupied” and that such
“occupation” would continue until the first respondent’s
demands were met. The nature of what was envisaged was demonstrated
by the events of 21 April 2018. This was not merely the “filling
of space”, as the first respondent would have it. Rather it
involved a deliberate disruption of the business activities of
the
applicants.
[38]
There
can be no doubt that the applicants enjoy a clear right to conduct
their business. Such right is plainly breached when individuals
or a
group of individuals conduct themselves in the manner described above
and as occurred on 21 April and 16 June 2018.
[39]
In
order to obtain a final interdict the applicant must establish, in
addition to a clear right and its breach, a reasonable apprehension
of harm in the event that the order is not granted. In
Diepsloot
Residents and Land Owners Association and Others v Administrator,
Transvaal and Others
1993 (3), SA 49
(T) at 60 E – F, it was stated, in relation to
the apprehension of harm, that:
On
this particular aspect it is clear that there is a difference between
proving on a preponderance of probabilities that “a
reasonable
apprehension of injury” exists and proving on that
preponderance that “an injury will be incurred”.
The
reasonable apprehension of injury is one which a reasonable man might
entertain being faced with the facts which the court
finds to exist
on a balance of probabilities.
[40]
In
this instance, the clearly stated intention of the third respondent
set out in the correspondence prior to 21 April was to continue
with
its conduct until its demands were met. This was repeated by the
second respondent at the incident on 21 April. This latter
allegation
is undisputed.
[41]
What
followed the granting of the interim order is also significant. The
first respondent states that they were dissatisfied with
what was
conveyed in the correspondence of 8 May 2018. They communicated this
to the “community” and told the “community”
to take the matter up themselves. What followed was the incident of
16 June 2018. The respondents do not state that they sought
to
discourage such conduct. The effect was that the applicants’
business was again disrupted. In my view, a reasonable person
would
entertain a reasonable apprehension that further harm may result if
the respondents are not restrained.
[42]
In
Performing
Right Society Ltd v Berman and Another
1966 (2) SA 355
(R) at 357F – G, it was stated that:
It
seems to me that the statement of the learned authors that the
Plaintiff must show positively that the Defendant is likely to
continue his infringement, refers to the type of case where the prima
facie position is that the infringement has occurred once
and for all
and is finished and done with; and if, the Defendant has given a
bona
fide
undertaking not to repeat the infringement, that is an important
factor which will influence the court in refusing an interdict.
[43]
In
this instance, the respondents have given no undertaking not to
continue with the infringing conduct or even to discourage persons
from such conduct. On the contrary, the stance adopted by the
respondents in relation to the events of 16 June 2018 is to state
that they have withdrawn, leaving the matter to “the community”
to address on their own. In light of what occurred
on 16 June 2018,
it cannot be said that such harm as has already occurred is now
“finished and done with”.
[44]
The
applicants are not possessed of any other suitable alternative remedy
by which the harm flowing from the respondents’
unlawful
conduct may be remedied. It follows from this that the applicants
have established all of the requirements for final relief.
They are
accordingly entitled to confirmation of the rule
nisi.
In regard to costs, the applicants sought a punitive costs order. In
my view such order is warranted having regard to the conduct
of the
respondents.
[45]
In
the result the following orders will issue:
1.
The
respondents are interdicted and restrained from organising
and/facilitating and/or promoting and/or encouraging and/or inciting
any unlawful activities on any of the Applicants’ business
premises where the Applicants trade as a liquor retailer under
the
trade name “Prestons”, which activities shall include,
but not be limited to:
1.1
interfering
with the access to and egress from any of the Applicants’
business premises by members of Applicants’ staff
or members of
the public who are lawfully entering or egressing Applicants’
premises;
1.2
inciting
or participating in protest demonstrations on any of the Applicants’
business premises or in close proximity thereto
(within 100 m of the
perimeter of any such business premises);
1.3
entering
any of the Applicants’ business premises as individuals save
for the bona fide purpose of purchasing products;
1.4
disrupting,
obstructing or in any manner interfering with the business activities
of the Applicants, more particularly the interference
in disruption
and obstruction of customers who lawfully enter upon Applicants’
premises for the purposes of purchasing products
sold by the
Applicant;
1.5
in
any manner interfering with the business activities of the
Applicants’ business;
1.6
disrupting,
obstructing or in any other manner interfering with the ordinary
functioning of the Applicants’ business by means
of
intimidation or threatening behaviour towards customers of the
Applicants’ business and Applicants’ staff;
1.7
threatening
to disrupt Applicants’ business activities and/or threatening
to close premises from where Applicants conduct
their business
activities;
1.8
closing
and/or threatening to close the doors to Applicants’ premises
such as to prevent customers from entering the premises
for lawful
purposes;
1.9
acting
in any unlawful manner which occasions damage to the Applicants’
business, more particularly, loss of revenue by virtue
of customers
being turned away unlawfully from entering Applicants’ business
premises.
2.
Directing
the South African Police Service to remove any person or member of
the third respondent who in breach of this Order acts
unlawfully as
set out in paragraph 1 above.
3.
The
respondents are ordered to pay the costs of the application jointly
and severally on the scale as between attorney and client.
_________________________
G.
G. GOOSEN
JUDGE
OF THE HIGH COURT
Appearances:
For
the Applicants
Adv.
A. Beyleveld SC
Instructed
by Minde Schapiro & Smith
For
the Respondents
First
Respondent (in person)
[1]
The issues
raised all concerned matters relating to working conditions and
benefits of the employees. No matters concerning alleged
consumer
complaints are noted in the list of issues raised. The content of the
email recording what was discussed at the meeting
was not placed in
dispute by the respondents.
[2]
Act 66 of
1995
[3]
Act 75 of
1997
[4]
Act 68 of
2008