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[2019] ZAFSHC 58
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Mafube Local Municipaliry v Mazibuko and Others (6148/2018) [2019] ZAFSHC 58 (30 May 2019)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE STATE DIVISION, BLOEMFONTEIN
Reportable:
NO
Of Interest to
other Judges: NO
Circulate to
Magistrates: NO
Case No:
6148/2018
In the
matter between:
MAFUBE
LOCAL MUNICIPALITY
APPLICANT
and
FANIE JAMES MAZIBUKO
1
st
RESPONDENT
BENNIE VOORMAN
MOHLAKOANE
2
nd
RESPONDENT
MORENA JAN
TSOTSETSI
3
rd
RESPONDENT
JEMINA PHINDI
NHLAPO
4
th
RESPONDENT
MMATSWERE SANA CYNTHIA TSOTSETI
5
th
RESPONDENT
FANIE JACOB
NHLAPO
6
th
RESPONDENT
RAYMOND
KHUMALO
7
th
RESPONDENT
ISHMAEL
MTHOLO
8
th
RESPONDENT
SOUTH AFRICAN MUNICIPAL WORKERS UNION
9
th
RESPONDENT
(MAFUBE LOCAL MUNICIPALITY
JUDGMENT
CORAM:
NAIDOO J
HEARD
ON:
16 May 2019
DELIVERED
ON:
30 May 2019
INTRODUCTION
[1] The applicant approached this
court on an urgent basis on 7 December 2018 and obtained an interim
order,
in terms of which a rule
nisi
was issued, returnable on
14 February 2019, calling on the respondents, to show cause why the
following orders should not be made
final:
1.1 The
unprotected strike
action by the respondents is declared illegal.
1.2 The respondents are interdicted
from:
1.2.1
Intimidating the applicant’s employees who are not
taking part
in
the
unprotected strike
from reporting for work and
performing their duties;
1.2.2
Instigating, encouraging or causing any other person to be
involved or take part in the said
unprotected
strike
, or cause
disturbance to applicant’s operation;
1.2.3
Making use of any other person, entity or association to
engage in the said
unprotected
strike;
1.2.4
Threatening and insulting the applicant’s management staff.
1.3 The Respondents and other members
of the 9
th
respondent who support the said
unprotected
strike
are ordered to report to their duties at the applicant and
render their services in respect thereof – (my underlining);
1.4 The respondents are ordered to
return all the keys of the applicant (including the offices and
facility keys)
[2] The orders mentioned in 1.1
to 1.4 above were to serve as an interim interdict with immediate
effect.
The order also made provision for the manner of service of
the application and court order. Adv PS Mphuloane appeared for the
applicant
in this court and Adv S Grobler appeared for the
respondents.
BACKGROUND
[3] The applicant alleges that
the respondents, who are employees of the applicant, embarked on a
violent,
unprotected strike, where they intimidated other employees
who were not participating in the strike, and took possession of
office
and other keys, forced employees out and locked their offices.
It appears that the reason for the strike was that the respondents,
who were not permanently employed, wanted the applicant to offer them
permanent positions. The respondents deny the applicant’s
version and allege that a dispute arose between them and the
applicant, over non-payment of certain third party contributions,
such as pensions, medical aid, Workmen’s Compensation and
income tax, to name a few. They approached the management of the
applicant, ostensibly to discuss these issues, but it seems that the
interaction degenerated into an acrimonious confrontation.
ISSUES
[6]
The
court is called upon to determine the following issues
:
6.1
The
one crisp issue raised by the respondents is that of jurisdiction.
They assert that this matter lay exclusively within the jurisdiction
of the Labour Court, therefore ousting this court’s
jurisdiction.
6.2 In its Replying Affidavit, the
appellant asserts that the Answering Affidavit of the respondents was
filed
late, has not been accompanied by a substantive application for
condonation, and should therefore be disregarded.
THE LAW
[7] Mr Grobler referred to
several cases in his Heads of Argument in support of his contention
that
this court is not vested with jurisdiction to hear this matter.
A convenient starting point would be to set out the relevant
provisions
of the Labour Relations Act 66 of 1995 (the LRA), which Mr
Grobler also referred to in asserting that the LRA supports his
contentions.
The respondents’ contention, in essence, is that
the applicant throughout its papers, and specifically in the relief
it seeks
in the Notice of Motion refers to an “unprotected
strike”, and as such, the conduct it seeks to interdict is
conduct
in furtherance of such a strike. Therefore section
68(1)(a)(i) clothes the Labour Court with exclusive jurisdiction to
hear this
matter.
[8] Section 68(1)(a)(i) provides
as follows:
‘
(1) In the case of
any
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, the Labour Court has
exclusive jurisdiction-
(a)
to grant an
interdict or order to restrain –
(i)
any person from
participating in a
strike
or
any conduct in contemplation or in furtherance of a
strike
; “
Section
157(1) and (2) further clarify the jurisdiction of the Labour Court
and when the High Court has concurrent jurisdiction
with the Labour
Court:
“
Jurisdiction of
Labour Court
(1
)
Subject
to the Constitution and section 173, and except where
this
Act
provides
otherwise, the Labour Court has exclusive jurisdiction in
respect of all matters that elsewhere in terms of
this
Act
or in terms of any
other law are to be determined by the Labour
Court.
(2
)
The
Labour Court has concurrent jurisdiction with the High Court in
respect of any alleged or threatened
violation of any fundamental right
entrenched in Chapter 2 of the Constitution of the
Republic of South
Africa, 1996, and arising from-
(a)
employment
and from labour relations
;”
[9] As I indicated, I was
referred to a number of decisions in which it was held that the
Labour Court has exclusive
jurisdiction to deal with all matters it
is empowered to deal with in terms of the LRA, including any strike
as referred to in
section 68(1) [
Sappi Fine
Papers (Pty) Ltd (Adamas Mill) v Paper Printing Wood and Allied
Workers Union and Another (1998) 19 ILJ 246 (SE); Transport
and
General Workers Union and Others v Kempton City Syndicate &
Another (2001) 22 ILJ 104 (W)
].
In the matter of
Mondi Paper v Paper Printing Wood
and Allied Workers Union & Others 1997 (18) ILJ 84 (D),
the
employer complained that in the course of strike action embarked upon
by its employees, they interfered with and sabotaged
its operation
and intimidated non-striking workers. The employer approached the
High Court and obtained a rule
nisi
interdicting certain
conduct of the employees. The court held that the notion that the
High Court had limited jurisdiction to interdict
intimidation while
other incidents and actions which amounted to improper picketing
should be referred to the Labour Court offended
against the court’s
duty to avoid proliferation and a multiplicity of costly court
actions. The court held that it had no
jurisdiction to have granted
the initial rule and discharged it.
[10] A copy of the judgment in
Central
University of Technology v The National Education, Health and Allied
Workers Union Case number 892/2006, an unreported judgment
handed
down on 25 May 2006
(CUT), and emanating from this Division, was
attached to Mr Grobler’s Heads of Argument. In that matter,
there were certain
threatened actions in the event of what were
essentially labour disputes not being resolved. The employer obtained
a rule
nisi
in the High Court, interdicting certain actions by
its employees. After analysing the evidence presented by the employer
and applying
the provisions of the LRA, the court, as per Van der
Merwe J (as he then was), held that the High Court did not have
jurisdiction
to grant the rule
nisi
and discharged it.
EVALUATION
[11] In the present matter, unlike in the
CUT matter, the applicant in no uncertain terms referred to an
unprotected
strike, and in fact sought relief to prevent further
unlawful conduct in the furtherance of that strike. It is not
necessary for
this court to analyse the meaning of “strike
action” in the context of the actions of the respondents, or to
determine
whether such actions constitute strike action. The
applicant declares that it is unprotected strike action, and bases
its case
thereon. To my mind, this matter falls squarely within the
province of the LRA, which is also clothed with exclusive
jurisdiction
to grant interdicts restraining unlawful conduct in the
furtherance of an unprotected strike The remarks of the court in
Mondi
and CUT, in this respect, are directly applicable and relevant
to the present matter. I accordingly align myself therewith.
[12] The applicant persisted with its insistence
that it moved its application in the correct forum. It did not deal
at all
with the provisions of the LRA, particularly section 68(1),
even when prompted by the court to do so during argument in court.
The applicant advocated the very notion of proliferation and
multiplicity of actions that was rejected and vilified in Mondi. Mr
Mphuloane asserted that the applicant was obliged to approach this
court on an urgent basis as a result of the unprotected strike
and
unlawful actions of the respondents. He argued that while this court
does not have jurisdiction in respect of the strike, the
unlawful
actions of the respondents clothed this court with the jurisdiction
to hear the matter and to have granted the rule
nisi
in December 2018.
[13] In my view, the disputes between the
parties and the actions of the respondents are matters regulated by
and provided
for in the LRA, which confers exclusive jurisdiction
upon the Labour Court to deal with such matters. The High Court has
concurrent
jurisdiction with the Labour Court only in the event of an
alleged or threatened violation of a fundamental and constitutionally
entrenched right. This was certainly not pleaded and was not the case
of the applicant. In the light of the provisions of the LRA,
which I
have outlined above and the dicta in the various cases I have
mentioned, the submissions of the applicant that this court
has the
jurisdiction to hear this matter are misplaced and unsustainable.
This court did not have jurisdiction to hear this matter
and to grant
the rule
nisi
it did
on 7 December 2018.
[14] With regard to the late filing of the
respondents’ Answering Affidavit, it is common cause that there
were
communications between the legal representatives of the parties
regarding this. The applicant’s legal representative indicated
that the respondents may file their Answering Affidavit late, and the
latter accepted that it may be done so without the need for
a
substantive application for condonation. Mr Mphuloane alleged that
the applicant’s attorney did agree to the late filing
of the
affidavit but said that “there are Rules”. Nothing
further or specific was said in this regard, nor was it reduced
to
writing that the applicant expected a substantive application for
condonation to be filed. Mr Grobler denied that the understanding
between the parties was that a substantive application for
condonation should be brought, and I am inclined to accept that this
is the more probable outcome of the interactions between the parties.
In any event, nothing much turns on the late filing of the
Answering
Affidavit, except a possible advantage that the applicant is
belatedly seeking in order to oust the valid defence put
up by the
respondents. The court exercises the discretion it has and grants
condonation for the late filing of the Answering Affidavit,
to the
extent necessary.
ORDER
[15] In the circumstances, I make the
following order:
The
rule
nisi
dated 7
December 2018 is dismissed with costs
S. NAIDOO, J
On
behalf of Applicant:
Adv.
P Mphuloane
Instructed
by:
Ntsoane Attorneys
Pretoria
c/o Pieter Skein Attorneys
22 Capt Proctor Street
Bloemfontein
(Ref: Pieter Skein)
On
behalf of Respondents: Adv.
S Grobler
Instructed
by:
Kramer Wiehmann & Joubert Inc
KWJ Building
24
Barnes Street
Westdene
Bloemfontein
(Ref: J Nortje/ N015318)