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[2015] ZAGPPHC 662
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Eskom Holdings Soc Limited v Persons Listed in Annexure A to the Notice of Motion and Others (27605/2015) [2015] ZAGPPHC 662 (12 June 2015)
IN THE COURT OF SOUT
AFRICA
GAUTENG DIVISION,
PRETORIA
CASE NO: 27605/2015
In the matter between:
ESKOM
HOLDINGS SOC LIMITED
Applicant
and
THE
PERSONS LISTED IN ANNEXURE A
TO
THE NOTICE OF MOTION
1
st
Respondent
NATIONAL
UNION OF METAL
WORKERS
2
nd
Respondent
OF
SOUTH AFRICA (NUMSA)
NATIONAL
UNION OF MINE WORKERS
3
rd
Respondent
BUILDING
CONSTRUCTION AND
4
th
Respondent
ALLIED
WORKERS UNION
UASA-
THE UNION
5
th
Respondent
METAL
ELECTRICAL WORKERS UNION
6
th
Respondent
OF
SOUTH AFRICA
MITSUBISHIHITACHI
POWER
7
th
Respondent
AFRICA
(PTY) LIMITED
ACTOM
(PTY)
LIMTED
8
th
Respondent
ALSTOM
S& E AFRICA (PTY)
LIMITED
9
th
Respondent
AVENG
GRINAKER (PTY)
LIMITED
10
th
Respondent
BASIL
READ (PTY)
LIMITED
11
th
Respondent
KARRENA
-CONCOR JOINT
VENTURE
12
th
Respondent
ELB
ENGINEERING SERVICES (PTY)
LIMITED
13
th
Respondent
LOW
PRESSURE SERVICES
CONSORTIUM
14
th
Respondent
OVIVO
AQUA SA (PTY)
LIMITED
15
th
Respondent
RULA
BULK MATERIALS HANDLING (PTY)
LIMITED
16
th
Respondent
THYSSENKRUOO
PDNA ENGINEERING (PTY) LIMITED
17
th
Respondent
MEDUPI
POWER STATION JOINT
VENTURE
18
th
Respondent
STANDBY
SYSTEMS SA (PTY) LTD
19
th
Respondent
CLYDE
BERGERMANN AFRICA (PTY)
20
th
Respondent
LEPHALALE
SITE SERVICES
21
st
Respondent
JUDGMENT
A.C
BASSON, J
[1] An urgent
application served before this Court
on 7 May 2015 and
was postponed
to 15 May 2015 for further argument. On 15 May 2015 this Court
granted an order,
inter
alia, evicting with immediate
effect the individual respondents listed in Annexure "A" to
the Notice of Motion from three
accommodation sites identified in the
order as the "Marapong Contractors Village", "Section
30" and "Portion
7". The three accommodation sites
("the premises") relate to the Medupi Power Station
("Medupi").
[4]
The
applicant in
this
application - ESKOM Holdings SOC Limited - brought an
application
in
terms
of
section
18
of
the
Superior
Courts
Ac
t
[1]
for
l
eave
to
execute on the order of this court dated 15 May 2015 pending the
outcome of any appeal process but only to the following limited
extent: That those person who
are
presently
in
occupation
of
the
premises
known
as
Maropong
Contractors
Village
and
Portion
7 are to
be
evicted and that they
be
provided
with
alternative accommodation at Shalela Building.
[5] The application for
leave to execute was heard simultaneously with the application for
leave to appeal brought by the second
respondent (the National Union
of Metalworkers of South Africa ("NUMSA")). At the hearing
of · he application
for leave to appeal counsel on behalf of
NUMSA confirmed that NUMSA was not opposing the application for
leave to execute.
NUMSA, however, persisted with its
application for leave to appeal. (This application is dealt with in a
separate judgement.)
[6] I do not intend for
purpose of this brief judgement repeating what is set out in the
papers that served in the main application
nor with what is contained
in the judgement handed down pursuant to the urgent application.
Suffice to point out that a large number
of employees have refused to
vacate the three accommodation premises despite a direct instruction
to do so. Detailed facts have
been placed before the court in the
main application showing the extent of the damage that was caused to
the applicant's security
and access control system by some of the
individuals who have remained on the premises (despite an instruction
to vacate the premises).
Some of these individual occupiers also make
it impossible for the applicant to gain entry to the premises in
order to urgently
repair and restore the security system. The
applicant explained that there exists an urgent need to repair and
restore security
control systems at the accommodation premises of the
applicant and that, unless this is done urgently, no employee of any
of the
contractors will be allowed to access the premises and take up
occupation in any one of the three premises.
[7] I have already
referred to the fact that, despite an instruction that all employees
who occupy the accommodation premises return
home, a substantial
number of individual respondents refused and are still refusing to
vacate the premises. The vast majority of
workers have, however,
returned to their respective homes.
[8] At the time when the
papers were filed approximately 205 individuals occupied the
premises. This number subsequently reduced
to approximately 120
people at the time of the hearing. Presently approximately 50 people
spread across two residences (Maripong
Contractors Village and
Portion 7) remain in occupation of the accommodation premises. As
will be pointed out herein below, these
50 people are effectively
preventing the thousands of other employees who are willing and able
to return to work from doing so.
They are doing so notwithstanding
the fact that alternative accommodation was and is still offered to
them. In fact, the court
order dated 15 May 2015 provides for
alternative accommodation: In an attempt to minimise any possible
harm to those who are refusing
to vacate the accommodation, the
applicant is ordered to provide alternative accommodation to them
until such time the access control
system has been repaired and
restored and until such time as the contractors inform the workers to
return to work. However, by
refusing to vacate the premises, the
applicant is prevented from repairing and restoring the security,
system. As already pointed
out, this situation has the effect that
thousands of other workers are prevented from returning to the
accommodation sites. In
this regard it was submitted on behalf of the
applicant that the financial impact of this is significant not only
for the applicant,
but for the economy as a whole: The Medupi Power
Plan cannot resume its normal operational activities under these
circumstances.
(I will return to this point where I discuss the
balance of convenience.)
[9] The order of 15 May
2015 was served by the Sheriff on the accommodation premises on
Saturday 16 May 2015. On Monday 18 May 2015
the applicant's attorneys
became aware of an application for leave to appeal. The Sheriff of
Court was then instructed not to proceed
with the actual eviction of
the individual respondents who are still occupying the Maropong
Village and Portion 7 accommodation
sites.
[10] The Extension 30
accommodation site has, however, since been vacated and the repair
work on the access control was completed
on 28 May 2015. This site is
accordingly ready to be accommodated by employees but can only
accommodate 378 individuals. The applicant
therefore urgently needs
to restore the security systems at the other two premises in order to
accommodate all the other (returning)
employees that need to be
accommodated. In light of this fact, it was submitted on behalf of
the applicant that there exist exceptional
circumstances that would
justify the execution of the order.
[11] It should be pointed
out that the identities of the 50 individuals who are occupying the
premises are unknown. In this regard
NUMSA has taken no measures to
establish whether any of its members are even part of those who are
presently still in occupation
of the premises. According to the
applicant NUMSA's
locus
standi
is
therefore at best questionable. I have however already referred to
the fact that NUMSA is not opposing this application. In fact
not one
of the respondent unions is opposing this application.
[12] I have already
referred to the fact that because these 50 odd individuals are
refusing to vacate two of the residences and
take up the alternative
accommodation provided to them, the applicant is unable to repair and
restore the security and access system
at these two accommodation
sites. A number of contract employees have now on the instruction of
various contractors returned to
work. Because the applicant is unable
to provide safe and secure accommodation for such employees at the
accommodation premises
occupied by the occupying respondents,
contractors - to the extent possible - have had to provide returning
workers with temporary
alternative accommodation in the Lephalae
area.
[13] The breakdown of the
accommodation requirements are set out in the founding affidavit.
Briefly, Portion 7 and Marapong Village
(the two accommodation sites
still occupied) are capable of providing between them approximately
4600 contractor employees with
accommodation. This accommodation is
currently urgently needed. Section 30 which has had access control
repaired is only able to
accommodate some 378 contractor employees.
All in all there is a need for the applicant to accommodate
approximately 3626 of the
contractors' employees. This number will
grow by approximately 160 individuals per day in line with the
contractors' intended remobilisation.
Until the applicant can access
the accommodation sites at Portion 7 and Marapong it can only provide
accommodation (using temporary
alternative including lodges in the
area) to approximately 3010 out of the 3626 of the contractors
'employees. There is therefore
a shortage of accommodation for
approximately 616 of the contractors' employees who are unable to be
accommodated.
[14] 1972 of the 3626 of
the contractors' workers that the applicant is able to currently
accommodate are being accommodated at
alternative accommodation sites
that has been secured by contractors in light of the fact that the
applicant is not able to gain
access to the Maropong and Portion 7
accommodation sites. Once the project is in full production, the
applicant will be required
to accommodate approximately 4934 of the
contractors' employees. Because of the shortage of accommodation due
to the fact that
the Marapong and Portion 7 accommodation sites are
unavailable, approximately 1164 individuals will not be able to be
accommodated.
[15] The applicant
further explained that it is currently required to pay for the
alternative accommodation for all those workers
who have returned to
the Medupi site to work and will now also have to pay wages to those
workers who are unable to be accommodate
on-site and who will
therefore have to remain at their homes.
[16] The applicant
submitted that, in light of the aforegoing, exceptional circumstances
exist which justify the execution of the
order. It was further
submitted that the applicant will suffer irreparable harm if an order
of execution is not granted but
that the same is not true in respect
of the second and third respondents should the order sought be
granted.
[17] I have considered
the papers and I am satisfied, on a balance of probabilities, that
the second and third respondents will
suffer no irreparable harm
should the order to execute be granted pending the outcome of any
appeals against the order of 15 May
2015. I am in agreement that this
is particularly so in circumstances where the second respondent has
failed to indicate to this
court whether any of their members are
even among those currently in occupation of the premises in question.
This court simply
does not know whether any NUMSA members are amongst
those still occupying the premises. In fact, even when the main
application
was argued the court, apart from the despondent, did not
know whether any of NUMSA's members were even amongst those occupying
the premises. According to the deponent to the founding affidavit in
this affidavit the second and third respondents have not, to
the best
of his knowledge, even visited the accommodation premises to
determine whether any of its (NUMSA's) members were among
those in
occupation of the premises or if so what the views of those members
are.
[18] I am therefore
satisfied that no harm will be suffered by any of the occupying
residents should the execution of the order
be granted in light of
the fact that the order granted on 15 May 2015 itself addresses any
prejudice that may be suffered by the
occupying residents: It is
required in the order that all occupying residents who vacate the
premises must be provided with alternative
accommodation in the
Shalela Building in Lephalale until such time as the applicant
notifies the contractor respondents that the
accommodation premises
are ready for occupation in terms of the relevant policies. The order
further provides that this order shall
not affect the rights
otherwise enjoyed by any of the parties to the application.
[19] I am on the other
hand persuaded on a balance of probabilities that the applicant will
suffer irreparable harm if the order
is not granted: Not only can the
applicant not repair and restore the damaged security and access
control system, it cannot accommodate
the large volumes of individual
employees who are returning to work and who are tendering the
services. Effectively the 50 odd
remaining employees are preventing
thousands of other employees from returning to work and take up the
accommodation provided to
them by the applicant.
[20] In the event the
following order is granted:
1.
Those persons who are present in occupation of the premises
known as
Marapong Contractors Village and Portion 7 are to be evicted.
2.
Those persons who are evicted as contemplated in
paragraph ·1
of this order are to be provided with alternative accommodation at
Shalela Building.
3.
The Sheriff is directed to comply with paragraph
5 of the order of
this order dated 15 May 2015.
4.
is no order as to costs
AC BASSON JUDGE OF THE
HIGH COURT
[1]
Act 10
of
2013: "18
Suspension
of decision pending appeal
(1)
Subject to subsections (2) and (3), and unless the court under
exceptional circumstances orders otherwise,
the operation and
execution of a decision which is the subject of an application for
leave to appeal or of an
appeal, is suspended pending the decision of the application or
appeal.
(2)
Subject to subsection (3), unless the court under exceptional
circumstances orders otherwiS•3,
the operation and execution of
a decision that is an interlocutory order not having the effect of a
final judgment, which is
the subject of an application for leave to
appeal or of an appeal, is not suspended pending the decision of the
application or
appeal.
(3) A
court may only order otherwise as contemplated in subsection (1) or
(2), if the party who applied to the
court to order otherwise, in
addition proves on a balance of probabilities that he or she will
suffer irreparable harm if the
court does not so order and that the
other party will not suffe< irreparable harm if the court so
orders.
(4) If a
court orders otherwise, as contemplated in subsection (1)
(i)
the court must immediately record its reasons for doing so;
(ii)
the aggrieved party has an automatic right of appeal to the next
highest court;
(iii)
the court hearing such an appeal must deal with it as a matter of
extreme urgency; and
(iv)
such order will be automatically suspended, pending the outcome of
such appeal.
(5) For the
purposes of subsections (1) and (2), a decision becomes the subject
of an application for leave to appeal
or of an appeal, as soon as an
application for leave to appeal or a notice of appeal is lodged with
the registrar in terms of
the rules.'