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2023
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[2023] ZAECMKHC 127
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Chep South Africa (Pty) Ltd v Ngqungwana and Others (1278/2023) [2023] ZAECMKHC 127 (21 November 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, MAKHANDA)
Case No: 1278/2023
In
the matter between:
CHEP
SOUTH AFRICA (PTY) LTD
APPLICANT
And
SANGO
M RAYAN aka SANGOLINYE NGQUNGWANA
FIRST
Respondent
MONWABISI
PATRICK BOOI
SECOND
RESPONDENT
BANDILE
MANYATI
THIRD
RESPONDENT
LORANCE
FELIX
FOURTH
RESPONDENT
LUKHANYO
JACK
FIFTH
RESPONDENT
SIVUYILE
MABOKELA
SIXTH
RESPONDENT
MNYAMEZELI
NZELANE
SEVENTH
RESPONDENT
SAKHUMZI
JAKAVULA aka SAKHUMZI MANCOBA
EIGHTH
RESPONDENT
JAYMO
WILLIAMS
NINTH
RESPONDENT
UNLAWFUL
PROTESTORS
TENTH
RESPONDENT
SOUTH
AFRICAN POLICE SERVICES
ELEVENTH
RESPONDENT
JUDGMENT
Bloem
J
[1]
On 25 April 2023 this court issued a rule
nisi
as a matter of
urgency calling upon the first to ninth respondents to show cause why
they should not be interdicted and restrained
from threatening,
intimidating or assaulting the applicant’s employees;
subcontractors; suppliers and personnel who were
attending to work or
entering or exiting the applicant’s premises and from entering,
interfering with or otherwise disrupting
the applicant’s
business operations. They were also interdicted from interfering with
the free flow of traffic to and from
the applicant’s premises.
The return date has been extended. The order operated as an
interim interdict with immediate
effect pending the finalisation of
this application. Save for the fifth respondent, the remaining
respondents opposed the application
and delivered answering
affidavits. Despite not delivering an answering affidavit, the fifth
respondent made submissions at the
hearing of the application.
[2]
The first respondent described himself as a member of the National
Union of Public Service and
Allied Workers. The applicant described
the tenth respondent as “unlawful protestors”. It also
described the first
to ninth respondents as the leaders of the
unlawful protestors. I shall herein refer to the first to ninth
respondents as “the
respondents”. The eleventh respondent
is the South African Police Service.
[3]
Although the applicant’s registered office is in Durban, this
matter relates to its business
operations at its premises in Gqeberha
(the premises). The applicant is an international company which
specialises in wooden pallet
administration, including leasing and
repairing pallets. The operation conducted at the applicant’s
Gqeberha premises only
relates to the issuing and returning of
pallets. The applicant’s case was that the respondents were
employees of Contracta-Force
Corporate Solutions (Pty) Ltd (C-Force).
The applicant engaged C-Force as a service provider. C-Force used its
own employees on
the premises.
[4]
The confrontation between the applicant and the respondents as well
as other employees started
during 2022. On 6 August 2022 the
respondents and other employees of C-Force engaged in an unprotected
strike at the premises during
which refuse and tyres were burnt.
Their conduct caused work stoppages at the premises and accordingly
obstruction to the applicant’s
business operations. On 2
September 2022 C-Force dismissed its employees who were engaged in
the strike, including the respondents.
They challenged their
dismissal in the CCMA, but on 30 January 2023 the commissioner ruled
that the CCMA lacked jurisdiction to
arbitrate the dispute between
the employees on the one hand and the applicant and C-Force on the
other hand. The commissioner advised
the employees to approach the
Labour Court to have the dispute adjudicated, but, by 24 April
2023, when this application was
instituted, they had not instituted
proceedings in the Labour Court against either the applicant or
C-Force.
[5]
On 1 April 2023 an email in the second respondent’s name was
sent from the first respondent’s
email address to the
applicant, informing it that the applicant’s employees would
gather and picket at the premises from
12 to 14 April 2023. At about
09h00 on 12 April 2023, a group of approximately 25 to 30
persons, including the respondents,
started blockading the entrance
to the premises and preventing its customers from gaining access
thereto. They shouted at the drivers
of the trucks of the applicant’s
customers to leave the premises. The applicant’s regional
operations manager, Wiean Benadie,
attempted to reason with the
second respondent and advised him that they should not be blockading
access to and from the premises
and thereby causing disruption to its
business. The second respondent said that they had a right to be
there. Two policemen arrived
on the scene but were unable to stop the
respondents and others from blockading access to the premises. When
the first respondent
was advised that employees should not conduct
themselves in a manner that caused disruption to the applicant’s
operations,
he demanded paperwork prohibiting them from standing
where they had gathered and from blockading access to and from the
premises.
They continued blockading the entrance and exit to the
premises until about 13h00.
[6]
The respondents, together with individuals unknown to the applicant,
gathered again from about 09h30 on 13
April 2023 and once again
blockaded access to and from the premises, which prevented the free
flow of vehicles. The conduct of
the respondents, together with
others who disrupted the applicant’s operations, was reflected
in photographs which were attached
to Mr Benadie’s founding
affidavit. The first and second respondents handed a list of demands
to Mr Benadie, with the threat
to be back on 21 April 2023 if
their demands were not met by then. They dispersed at about 11h15 on
that day.
[7]
When a group of about 25 persons gathered outside the premises from
approximately 09h30 on 21
April 2023, Mr Benadie once again
advised them to pursue legitimate legal processes and to stop their
unlawful conduct. They
dispersed. However, at approximately 12h40 on
that same day, a more hostile group of persons, including the
respondents, gathered
outside the premises. They blocked access to
and from the premises, resulting in a truck not being able to enter
the premises.
Mr Benadie arranged for the truck to enter the premises
through an exit gate, but members of the group blocked both the
entrance
and the exit gates. Members of the group intimidated the
truck driver who drove off. When Mr Benadie addressed the group, they
told him to call the police and obtain an interdict. They told
him that they would not leave and that no truck would be granted
access to or from the premises. The applicant approached its
attorneys who, after having made a written demand to the respondents
to give an undertaking that they would stop their unlawful
activities, launched the present application when the respondents had
failed to give such an undertaking. The interim order was granted on
25 April 2023.
[8]
The respondents opposed the application, primarily on the basis that
the applicant, and not C-Force,
was their employer. They contended
that they “
were deemed employees of CHEP SA (PTY) LTD in
terms of section 198(3)(i) and (ii) of the LRA even before the
arrival of C-Force
.” On the merits, the respondents denied
that they acted in an unlawful manner prior to the granting of the
interim order.
The respondents have accordingly raised two issues for
determination. The first is whether the applicant is their employer.
The
second issue is whether they have conducted themselves in an
unlawful manner, as alleged by the applicant.
[9]
I am of the view that it is immaterial whether the respondents were
employed by the applicant
or C-Force. The purpose of the application
was to stop and prevent what the applicant perceived to have been
unlawful conduct on
the part of the respondents and others. A
business entity has a right to conduct its business free of
interference, disruption
and threats to its employees and customers.
Such an entity has the right to protect its business operations. The
applicant’s
case was that its business operations were
adversely affected by the respondents’ alleged unlawful
conduct. It accordingly
had a right to protect its business
operations. The right not to have its business operations disrupted
exists irrespective of
whether the applicant was the respondents’
employer. By approaching this court, the applicant sought an order
that its business
operations be protected. I am satisfied that when
the applicant approached the court, it had established a right worthy
of protection.
I will now determine whether the applicant has
demonstrated that the respondents interfered with the applicant’s
right by
having unlawfully disrupted its business operations, as
alleged by the applicant, entitling the applicant to protection in
the
form of an interdict.
[10]
The respondents denied that they were engaged in an unprotected
strike, claiming that there was “
nothing illegal or unlawful
about the gathering that the workers held
” and that they
did not prevent persons or vehicles from having access to and from
the premises. They denied that the “
gathered workers
[disrupted] the applicant’s business operations because
vehicles were allowed to come in and out of its premises.
There were
no threats to violence
”. The first respondent stated that
at approximately 10h35 on 12 April 2023 he received a call from
Mr Benadie who requested
him to “speak to the workers because
they were having an unlawful protest outside the premises of the
employer”. He
said that, upon arrival, he established that the
workers had been granted permission by the Nelson Mandela
Metropolitan Municipality
(the municipality) to gather outside the
premises. The first respondent did not say what he did after
realising that the municipality
had permitted the gathering. The
applicant’s case in that regard was that the first respondent
made common cause with the
other respondents regarding the gathering.
[11]
Had the respondents delivered their answering affidavits before the
interim order was granted, this court,
given the dispute as to the
facts, would have had to decide whether to grant the interim
interdict by taking the facts as set out
by the applicant together
with any facts set out by the respondents which the applicant could
not dispute, and to consider whether,
having regard to the inherent
probabilities, the applicant could on those facts obtain final relief
at the trial.
[1]
As it turned
out, the respondents did not deliver answering affidavits before the
grant of the interim interdict. They made submissions
on the facts
set out in the applicant’s founding affidavit regarding the
jurisdiction of this court. When I issued the interim
interdict, I
was satisfied that the applicant had established the requirements of
an interim interdict entitling its business to
be protected pending
the return date.
[12]
Now that the applicant seeks a final interdict against the
respondents, the consideration is different. A
final interdict may be
granted if those facts in the applicant’s affidavit which had
been admitted by the respondents, together
with the facts alleged by
the respondents, justify such an order. However, where disputes
raised by a respondent are not real,
genuine or bona fide and the
court is satisfied as to the inherent incredibility of the
applicant’s factual averments, it
may proceed on the basis of
the correctness of the facts set out by the applicant and include
this fact among those upon which
it determines whether the applicant
is entitled to the final relief which it seeks.
[2]
[13]
As pointed out above, the respondents denied that they acted
unlawfully when they were outside the premises
on 12, 13,14 and 21
April 2023. The first respondent said that on 12 April 2023 Mr
Benadie called him to talk to the workers, including
the respondents,
on their own version, who “
were
having an unlawful protest
”
outside the premises. It is accordingly common cause that the
respondents protested on 12 April 2023. Although the respondents
alleged that the municipality granted them permission to protest at
the premises on 12 to 14 April 2023, the documents relating
to the
permission granted by the municipality, showed that on 4 April 2023
the second and fourth respondents, on behalf of the
“
Illegally
dismissed workers of CHEP
”,
applied for 68 employees to protests at the premises between 08h00
and 17h00 on 12 April 2023. On 6 April 2023 the municipality
and the
second respondent, representing the “
dismissed
Chep workers
”, concluded an
agreement in writing wherein the respondents were granted permission
for the gathering to take place at the
premises between 08h00 and
13h00 on 12 April 2023.
[14]
In clause 18 of the agreement the parties agreed to cause “no
disruption”. In the
context of the application for permission
to gather, the “no disruption” must be interpreted to
mean that the respondents
undertook not to disrupt the applicant’s
business operations during their gathering. The respondents did not
stick to their
undertaking. Mr Benadie would not have called the
first respondent if the activities of the respondents did not disrupt
the applicant’s
business operations. Mr Benadie said that,
instead of them protesting or demonstrating in an area that did not
cause any disruption
to the applicant’s business, they did the
opposite by causing an obstruction to the flow of vehicular traffic
to and from
the premises. The respondents’ response to Mr
Benadie’s allegation in that regard was a bald denial. The
events of
13 and 14 April 2023 that Mr Benadie described in his
founding affidavit also attracted a bald denial. On the applicant’s
version, the respondents blocked a truck from entering the premises
on 21 April 2023. That evidence was similarly met with a bare
denial
and argumentative material, the respondents contending that they
could not have acted in that fashion in the presence of
members of
the South African Police Service. In my view, the respondents’
denial of the facts set out by the applicant relating
to their
conduct on 12, 13, 14 and 21 April 2023 is so far-fetched that it
must be rejected on the papers. The decision whether
a final
interdict should be granted must accordingly be made on the basis of
the facts set out in the applicant’s affidavits.
[15]
The respondents submitted that, on the applicant’s own version,
the conduct about which it complained
has stopped since the interim
order was granted. This court should accordingly not confirm the rule
nisi and thereby making the
interdict final. In his founding
affidavit Mr Benadie said that the applicant was concerned about
statements by the respondents
that “the applicant will not be
allowed to resume [its business operations] until their demands are
met” and that they
would continue with their unlawful conduct
“until such time as their demands are met”. In his
replying affidavit Mr
Benadie said that, pursuant to the granting of
the interim order, “there has been no further gatherings which
have taken
place. The interim order was accordingly necessary and
effective deterring the respondents from their unlawful conduct …
”. The interim order accordingly has had the desired effect.
The applicant nevertheless sought the interim order to be made
final
because “having it made final, would continue to have the
desired effect”.
[16]
Mr de la Harpe, counsel for the applicant, submitted that, if regard
is had to the confrontation
between the applicant and the respondents
in 2022 and 2023, it is highly probable that the unlawfulness would
repeat itself in
the near future, hence the applicant’s
contention that a final interdict “would continue to have the
desired effect”.
An interdict is not the proper remedy where
there is no reasonable apprehension that the infringement complained
of will be repeated.
[3]
[17]
What has been quoted above from Mr Benadie’s affidavits was the
only evidence relevant to the applicant’s
apprehension of
harm. An applicant is required to set out facts to show that he
has good grounds for fearing that he will
suffer irreparable harm
unless a final interdict is granted. The applicant has not set out
facts from which it could reasonably
be inferred that the respondents
were about to perform an act which would be in violation of the
applicant’s right to conduct
its business without unlawful
interference by the respondents. I am not satisfied that it could
reasonably be concluded that the
events of 2022 and 2023 was evidence
of an intention on the part of the respondents to continue what they
had done in the past
two years.
[4]
In the result, it would not be proper, on the facts (or absence
thereof) of this case, to confirm the rule nisi that was issued
on
25 April 2023. It must accordingly be discharged.
[18]
The discharge of the rule does not mean that the respondents were
substantially successful in the litigation.
The applicant was
entitled to approach the court to obtain an interim order to protect
its business operations against unlawful
conduct of the respondents
and other unlawful protestors. The respondents persisted with their
denial of unlawful conduct up to
the hearing, despite the
overwhelming evidence against them. Had they not acted in that
fashion, litigation would not have taken
place with its attendant
legal costs. In the circumstances, it would be just and equitable to
order the respondents to pay the
applicant’s costs of the
application. The first respondent sought to avoid a costs order
against himself by submitting that
it was Mr Benadie who called him
to the premises. It is correct that the first respondent’s
attendance at the premises was
as a result of a request by Mr Benadie
for his presence to assist with the unlawful activities of the
respondents. However, he
did not assist to get the other respondents
to stop their unlawful conduct. To the contrary, on the applicant’s
version,
he made common cause with their unlawful conduct. The costs
against the respondents shall include the costs of the hearing on 25
April 2023 when the respondents opposed the granting of the rule
nisi, the costs of the hearing on 16 May 2023 and 7 November 2023,
but shall exclude the costs of the hearing on 5 October 2023 when the
application was postponed because the respondents had not
received
the application papers. Each party shall pay its or his own costs
occasioned by the postponement of the hearing on 5 October
2023.
[19]
In the result, it is ordered that:
1.
The rule nisi granted on 25 April 2023 is discharged.
2.
The first to ninth respondents shall pay the costs
of the application, jointly and severally, the one paying
the other
to be absolved, such costs to include the costs of the hearing on 25
April 2023, 16 May 2023 and 7 November 2023.
3.
Each party shall pay its or his own costs
occasioned by the postponement of the hearing on 5 October 2023.
GH
BLOEM
Judge
of the High Court
APPEARANCES
For
the applicant:
Mr
DH de la Harpe SC, instructed by Cox Yeats, Durban and Netteltons
Attorneys, Makhanda.
For
the respondents:
In
person, save for the seventh respondent.
Date
heard:
7
November 2023
Date
of delivery of the judgment:
21
November 2023
[1]
Webster
v Mitchell
1948 (1) SA 1186
(W) at 1189.
[2]
Plascon
Evans Paint Ltd v Riebeeck Paints (Pty) Ltd
1984 (3) SA 620
(AD) at 634E-635C.
[3]
Condé
Nast Publications Ltd v Jaffe
1951
(1) SA 81
(C) at 86.
[4]
Stauffer
Chemicals Chemical Products Division of Chesebrough-Ponds (Pty) Ltd
v Monsanto Company
1988 (1) SA 805
(T) at 809E-G.