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2014
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[2014] ZAFSHC 206
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South African Municipal Workers Union v Grootboom and Others (A263/2013) [2014] ZAFSHC 206 (11 December 2014)
IN THE HIGH COURT OF SOUTH AFRICA
FREE STATE DIVISION, BLOEMFONTEIN
Appeal No.: A263/2013
DATE: 11 DECEMBER 2014
In the appeal of:
THE SOUTH AFRICAN MUNICIPAL
WORKERS
UNION
..........................................................
Appellant
And
SIPHO
GROOTBOOM
...........................................
1st
Respondent
GODFREY
MOLEHENG
.......................................
2nd
Respondent
SINDELANI
THOMAS
..........................................
3rd
Respondent
G D
THIBELETSA
.................................................
4th
Respondent
B G
SIKOTI
...........................................................
5th
Respondent
D Y
MDLELENI
.....................................................
6th
Respondent
M J
MALIEA
.........................................................
7th
Respondent
M
SWARTS
............................................................
8th
Respondent
M J
MASHIBINI
...................................................
9th
Respondent
V E
BOCIBA
.......................................................
10th
Respondent
S K
PHORI
.........................................................
11th
Respondent
S S
SIBOKA
.......................................................
12th
Respondent
T J
KHOHO
.......................................................
13th
Respondent
M E
MASHIBINI
...............................................
14th
Respondent
L T
MAKUTSU
.................................................
15th
Respondent
T
KGOHLOKOANE
.........................................
16th
Respondent
CORAM: VAN DER MERWE J, DAFFUE J et
MOENG AJ
JUDGMENT: VAN DER MERWE, J
HEARD ON: 3 NOVEMBER 2014
DELIVERED ON: 11 DECEMBER 2014
[1] On 23 May 2013, on the application
of the appellant, Fischer AJ issued a rule nisi operating as interim
interdict with immediate
effect, calling upon the respondents to show
cause why the following order should not be made final:
“3.1 The first, second and third
respondents are interdicted and restrained from further, whether
directly or indirectly,
instructing, coaxing, cajoling or in any
other manner persuading any of the other respondents before court or
any other person,
to assault, threaten, harass, molest or in any way
intimidate the applicant’s provincial and regional employees;
3.2 The fourth to sixteenth respondents
are interdicted and restrained from directly or indirectly,
assaulting, harassing, threatening,
molesting or in any other way
cause any form of harm to the applicant’s provincial or
regional employees;
3.3 The first to sixteenth respondents
are ordered to immediately hand over to the sheriff of this court,
the keys kept by them
of the applicant’s provincial and
regional offices in Bloemfontein, situated at Cricket Street, and to
allow access to these
offices to the applicant and its employees;
3.4 The first to third respondents are
interdicted and restrained from further holding any meetings in the
name of the applicant,
to congregate in any manner or fashion under
the name of the applicant and to either individually or collectively,
attend to or
visit the provincial or regional offices of the
applicant;
3.5 The first to sixteenth respondents
be ordered to pay the costs of the application jointly and severally,
payment by the one,
the other to be absolved, on a scale as between
attorney and own client.”
[2] On the extended return date
thereof, De Wet AJ discharged the rule nisi with costs. The appeal is
against this order. In the
absence of De Wet AJ leave to appeal to
this court was granted by Molemela J.
[3] The appellant formally withdrew the
application against the sixth and seventh respondents when it filed
its replying affidavits.
Before us the appellant rightly did not
persist in the appeal in respect of the eighth, ninth and thirteenth
respondents. A reference
below to the respondents should therefore be
understood as excluding the sixth, seventh, eighth, ninth and
thirteenth respondents.
Read with the rule nisi, the appeal therefore
concerns two groups of respondents. These are the first, second and
third respondents
on the one hand and the fourth, fifth, tenth,
eleventh, twelfth, fourteenth, fifteenth and sixteenth respondents
(the worker respondents)
on the other.
[4] The appellant is a duly established
trade union. It is recognised as such by the Mangaung metropolitan
municipality (the municipality).
The appellant has a regional office
at City Hall, Bloemfontein and a provincial office in Cricket Street,
Bloemfontein. The respondents
are all employed by the municipality in
its water and sanitation department. The first to third respondents
were part-time shop
stewards of the appellant in this department.
[5] After the municipality became a
metropolitan municipality, its staff establishment had to be
restructed. The appellant negotiated
with the municipality in this
regard. By 16 May 2013 the respondents and other employees of the
appellant employed by the municipality,
had for some time been
dissatisfied with the process of restructuring. In a petition
directed to the appellant, these workers inter
alia called for the
removal of the full-time shop stewards of the appellant at the
municipality. These are employees of the appellant.
[6] On 16 May 2013 the appellant in
turn decided to suspend the first to third respondents as its
part-time shop stewards. Letters
of suspension were served on them on
Friday 17 May 2013.
[7] On Monday 20 May 2013 a group of
approximately 175 employees of the water and sanitation department of
the municipality gathered
and moved to the appellant’s regional
office and thereafter to the appellant’s provincial office. On
21 May 2013 a
group of about 500 employees of the municipality
gathered and again moved first to the regional office of the
appellant and then
to its provincial office.
[8] The evidence of the appellant was
that on 20 and 21 May 2013 the groups of employees harassed,
threatened and assaulted its
employees at its regional and provincial
offices. De Wet AJ rejected the respondents’ denial hereof as
clearly untenable
and farfetched and this finding was rightly not
challenged on appeal. The harassment, threats and assaults of the
appellant’s
employees were clearly intended to disrupt the
affairs of the appellant. The appellant’s evidence was also
that on 20 May
2013 the group of workers locked the appellant’s
regional office and took the key away and that on 21 May 2013 it did
the
same in respect of the provincial office. As a result the
appellant was unable to obtain access to any of these offices. The
respondents
actually admit that the fourteenth respondent and another
person locked the regional office after, according to the
respondents,
the appellant’s staff left the office unattended
for no apparent reason. The respondents did not explain what happened
to
this key so that it follows that it must have been taken away by
the employees. In the light thereof that the respondents themselves
say that when the group of employees attended the provincial office
they were angry and frustrated and insisted that the provincial
offices also be locked, the evidence of the appellant in this regard
can safely be accepted. It is clear to me that on each occasion
these
groups of employees had a common goal to disrupt the affairs of the
appellant by intimidation of its employees and closure
of its
offices.
[9] The rule nisi called for a
consideration of whether the first to third respondents caused the
groups of workers to gather and
to act as aforesaid. The court a quo
failed to do so. The person that served the letters of suspension on
the first to third respondents
declared under oath that at the time
they inter alia said ‘that they shall make sure that the
applicant closes its doors
in Bloemfontein’. This evidence was
met with a bare denial. I am convinced that in these circumstances
the bare denial did
not result in a real, genuine or bona fide
dispute of fact. (See Wightman t/a JW Construction v Headfour (Pty)
Ltd & Another
[2008] ZASCA 6
;
2008 (3) SA 371
(SCA) para 13.) As I have said,
what the first to third respondents said on the Friday, is exactly
what happened on the following
Monday and Tuesday. In the
circumstances the probabilities are overwhelming that the events of
20 and 21 May 2013 were instigated
by the first to third respondents,
irrespective of whether they were then present or not.
[10] It is common cause that the worker
respondents were part of the aforesaid groups of workers on 20 and 21
May 2013. The court
a quo nevertheless refused to grant relief to the
appellant, mainly on the ground that unless it proved that a
respondent personally
committed an act of harassment, threatening or
assault, the appellant had to prove a common purpose on the
principles applicable
to criminal law. This approach is erroneous and
too narrow. Criminal law principles are not applicable. The trite
requirements
for a final interdict must be applied. The worker
respondents were part and parcel of and clearly made common cause
with the groups
of workers that invaded the clear rights of the
appellant to undisturbed possession of its offices and to carrying on
of its business.
[11] The first to third respondents and
the worker respondents committed or participated in actual injury and
invasion of rights
in respect of the appellant. As this is falsely
denied by them, it does not lie in the mouths of the respondents to
say that further
invasion of rights was not reasonably apprehended. I
am satisfied that the appellant at least reasonably apprehended
further injury
and invasion of its rights. This is inter alia
evidenced by the fact that the number of the group of the workers
grew considerably
from 20 May 2013 to 21 May 2013, that the keys of
the offices were not returned and that according to the respondents
their grievances
remained unresolved.
[12] It follows that the rule nisi
should have been confirmed in respect of the respondents. I do not
think that a special costs
order is justified.
[13] The following order is made:
1. The appeal is upheld.
2. The appellant is ordered to pay the
costs of appeal of the eighth, ninth and thirteenth respondents. The
first, second, third,
fourth, fifth, tenth, eleventh, twelfth,
fourteenth, fifteenth and sixteenth respondents are jointly and
severally ordered to pay
the costs of appeal of the appellant.
3. The order of the court a quo is set
aside and replaced with the following:
“1. The rule nisi is discharged
in respect of the sixth, seventh, eighth, ninth and thirteenth
respondents, with costs.
2. Paragraphs 3.1 and 3.4 of the rule
nisi are confirmed in respect of the first, second and third
respondents.
3. Paragraph 3.2 of the rule nisi is
confirmed in respect of the fourth, fifth, tenth, eleventh, twelfth,
fourteenth, fifteenth
and sixteenth respondents.
4. Paragraph 3.3 of the rule nisi is
confirmed in respect of the first, second, third, fourth, fifth,
tenth, eleventh, twelfth,
fourteenth, fifteenth and sixteenth
respondents.
5. The first, second, third, fourth,
fifth, tenth, eleventh, twelfth, fourteenth, fifteenth and sixteenth
respondents are jointly
and severally ordered to pay the costs of the
application.”
C H G VAN DER MERWE, J
I concur
J P DAFFUE, J
I concur
L B J MOENG, AJ
On behalf of the appellant: Adv S
Grobler
Instructed by: Kramer Weihmann &
Joubert
BLOEMFONTEIN
On behalf of the respondents: Adv S
J Reinders
Instructed by:Jacobs Attorneys
BLOEMFONTEIN
/mvheerden