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[2013] ZAFSHC 150
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South Afriacn Municipal Workers Union v Grootboom and Others (2013/2013) [2013] ZAFSHC 150 (12 September 2013)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No. : 2013/2013
In the matter between:-
THE SOUTH AFRICAN
MUNICIPAL WORKERS
UNION
...........................................................................................
.Applicant
and
SIPHO GROOTBOOM
.........................................................
1
st
Respondent
GODFREY MOLEHENG
.....................................................
2
nd
Respondent
SINDELANI THOMAS
.........................................................
3
rd
Respondent
G D THIBELETSA
...............................................................
4
th
Respondent
B G SIKOTI
.
.........................................................................
5
th
Respondent
D Y MDLELENI
....................................................................
6
th
Respondent
M J MALIEA
........................................................................
7
th
Respondent
M SWARTS
..........................................................................
8
th
Respondent
M J MASHIBINI
...................................................................
9
th
Respondent
V E BOCIBA
......................................................................
10
th
Respondent
S K PHORI
.........................................................................
11
th
Respondent
S S SIBOKA
......................................................................
12
th
Respondent
T J KHOHO
........................................................................
13
th
Respondent
M E MASHIBINI
.................................................................
14
th
Respondent
L T MAKUTSI
....................................................................
15
th
Respondent
T KGOHLOKOANE
...........................................................
16
th
Respondent
_______________________________________________________
HEARD ON:
5
SEPTEMBER 2013
_______________________________________________________
JUDGMENT BY:
DE WET, AJ
_______________________________________________________
DELIVERED:
12 SEPTEMBER 2013
_______________________________________________________
[1] On the 23
rd
May 2013 applicant applied for an urgent interdict against the
respondents pending the final adjudication of the application.
[2] Fischer AJ found that
the application was urgent and a rule
nisi
was issued calling
upon the respondents to show cause on 20 June 2013 why the following
order should not be made final:
2.1. The first, second
and third respondent 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 intimate (sic) the applicant’s provincial and regional
employees;
2.2. The fourth to
sixteenth respondents are interdicted and restrained from directly or
indirectly, assaulting, harassing, threatening,
molesting or any
other way cause any form of harm to the applicant’s provincial
or regional employees;
2.3. 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 of the applicant and its
employees;
2.4. 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;
2.5. The first to
sixteenth respondents be ordered to pay the costs of the application
jointly and severally, payment by one, the
other to be absolved, on
the scale as between attorney and own client.
[3] On the 1
st
August 2013 the rule
nisi
was extended to 5 September 2013 by
Rampai AJP and the respondents were ordered to file their opposing
affidavits on or before
16 August 2013 and the applicants to file
their replying affidavits on or before 23 August 2013.
[4] The dispute
engendered by the application centres around
inter alia
the
allegations that
4.1. applicant is a trade
union in the local sfere of government representing members employed
by the Mangaung Municipality;
4.2. as a result of the
restructuring of the Mangaung Municipality, applicant entered into
negotiations with regard to the placement
of its members in the new
municipal structure and apparently the members of applicant became
frustrated with the protracted negotiations
and the dissatisfied
members thereafter signed a petition during March 2013 calling for
the removal of applicant’s employees,
being the fulltime shop
stewards.
[5] It is alleged and
denied that as a result of first, second and third respondents’
actions described as industrial espionage
in the founding papers,
applicant decided to suspend them as part-time shop stewards of the
applicant and letters of suspension
was subsequently served on first,
second and third respondents on 17 May 2013.
[6] The first, second and
third respondents then allegedly called a meeting on 21 May 2013 and
after the meeting a mob arrived at
the regional offices of applicant
at City Hall, Bloemfontein and members or employees of applicant
identified as Mogorosi, Maphatlalatse
and Nkalai were thereafter
assaulted and the keys were taken and doors were locked by the mob.
The keys have since disappeared.
[7] The mob thereafter
went to the provincial offices of the applicant situated at Cricket
Street, Bloemfontein and there again
threatened employees of
applicant. The offices were also locked and the keys taken.
[8] The allegation by
applicant is that the respondents were members of the mob who
perpetrated the aforesaid actions at both applicant’s
regional
offices and at the provincial offices.
[9] Charges were laid at
the South African Police and an ID parade held and it is alleged by
applicant that fourth to sixteenth
respondents were identified as
perpetrators. Strangely enough, first, second and third respondents
were apparently not identified
as such.
[10] The first, second
and third respondents are believed by applicant on the circumstances
to be behind the intimidation, threatening
and assaults on
applicant’s employees and the general disruption of the
applicant’s activities complained about.
[11] The respondents deny
the allegations that they assaulted or harmed any of the applicant’s
officials and that they disrupted
any of applicant’s
activities, as alleged or at all.
[12] The respondents
allege that a certain Mr Lebatsa and fourteenth respondent led ±
175 employees of the Mangaung Municipality
Bloemfontein on 20 May
2013 to applicant’s offices situated at the City Hall,
Bloemfontein to enquire about the grievances
raised already during
March 2013.
[13] First, second and
third respondents were not present. Neither were sixth, seventh,
eighth, ninth and thirteenth respondent
present.
[14] On the respondents’
version respondents four, five, ten, eleven, twelve, fourteen,
fifteen and sixteen must have been
present at the meeting and during
the march on the offices of the applicant.
[15] According to the
respondents on their arrival at the City Hall, applicant’s
employees left the offices without addressing
the mob and as they
left the offices unattended Mr Lebatsa and fourteenth respondent
locked the offices (what happened to the keys
is still a mystery) Any
threat or confrontations are denied.
[16] The mob then went to
the applicant’s Cricket Street offices, but the provincial
secretary, Mr Magagula, was not present
and Mr Lebatsa then discussed
the matter with a lady, Me Selilo, who then gave him Mr Magagula’s
cellphone number.
[17] The angry and
frustrated employees then insisted that Me Selilo close the Cricket
Street offices of the applicant and the offices
were then locked and
Me Selilo took the keys with her.
[18] The respondents deny
that anybody was assaulted by any of the employees and definitely not
by the respondents present. They
furthermore deny that anyone was
threatened or harassed at any stage and the respondents present did
not interfere with any of
applicant’s functions.
[19] Respondents allege
that on 21 May 2013 ± 500 employees of the municipality went
to the applicant’s offices at
the City Hall. They found the
offices locked and they then went to the Cricket Street premises of
the applicant where they found
the gates to the offices locked and
closed.
[20] Nobody was assaulted
or threatened or interfered with on 21 May 2013 neither by the
employees nor by any of the respondents
present. First, second and
third respondents never arranged any meeting or march and did not
intice anybody to threaten, harass
or physically assault any of the
applicant’s employees.
[21] From the replying
affidavit – annexure “R2” - it is clear that an
employee of the applicant sustained injuries
during the
abovementioned mob action. Second, eighth, ninth and thirteenth
respondents are identified in the replying affidavit
as being present
at the meeting on 20 May 2013 and during the mob action thereafter.
[22] The ninth respondent
is identified as having grabbed Mr Nkolai by the scruff of the neck.
The allegation is in fact new evidence
appearing for the first time
in the replying affidavit and the respondents had clearly no
opportunity to deny same.
[23] To obtain a final
interdict by way of application, an applicant must establish
a clear right,
an injury actually
committed or reasonably apprehended or an actual or threatened
invasion of that right; and
the absence of a similar
protection by any other ordinary or suitable remedy in law.
See:
Minister of Law and Order, Bophuthatswana, and Another v
Committee of the Church Summit of Bophuthatswana and Others
1994 (3) SA 89
(BGD) at
98C.
[24] The second essential
for the granting of a final interdict means a breach or infraction of
the right which has been shown or
demonstrated and the prejudice that
has resulted therefrom. The term “injury” is used as a
translation of Van der Linden’s
“een gepleegde
feitlikheid” (a fact committed).
[25] From this second
essential it is clear that in order to succeed the applicant must
also show who in fact committed the complained
of injury. The
allegations supplied by the deponents in the founding affidavits are
extremely vague. There is just no evidence
on which any of the
respondents are properly identified as perpetrators in specific
instances.
[26] I bear in mind that
in an application for final relief it is trite that factual
disagreements are to be dealt with in accordance
with the rule in
Plascon-Evans Paints (Pty) Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A) and that it should be dealt with mainly on the
allegations made by the respondents.
See:
Thint (Pty) Ltd v National Director of Public
Prosecutions and Others; Zuma v National Director of Public
Prosecutions and Others
2009 (1) SA 1
(CC)
2009
(1) SA 1
(CC).
[27] The respondents’
version that no violence, assaults, threats with assault,
intimidation, etc. occurred on the 20
th
May 2013 are
clearly untenable and farfetched. It is difficult to perceive an
angry and frustrated mob going to the applicant’s
offices to
raise their grievances behaving in a calm and orderly manner, as the
respondents aver. It is also difficult to perceive
that the employees
of the applicant in City Hall would have fled the scene without sound
reason for doing so.
[28] Even if I reject the
specific version of the respondents regarding what happened at the
meetings on 20 May 2013 and even the
version of what happened and
transpired on 21 May 2013, the applicant still need to prove which of
the respondents has assaulted,
intimidated or harassed any of the
applicant’s officials. The applicant was clearly well aware of
the problem that he faced
and in his replying affidavit he states:
“
I have been
advised that if in fact the court finds that the respondents were
part of the mob that descended upon the applicant’s
offices in
the Bram Fischer Building as well as Cricket Street they are guilty
by means of association. They clearly had a common
interest and for
purposes of these proceedings, these will more than suffice and
entitle the applicant to the relief it finally
seeks.”
[29] The applicant is
clearly relying on a common purpose in proving its case against the
respondents and probably so as a result
of the fact that there is no
direct evidence indicating what each and every one of the individual
respondents did or did not do
on 20 or 21 May 2013. In order to
succeed with the application on the basis that the respondents acted
with a common purpose and
to prove a common purpose, the applicant
had to prove the following:
(i) that the respondents
have been present at the scene where the assault and other conduct
complained of was being committed;
(ii) they must have been
aware of the improper conduct;
they must have intended
to make common cause with those who were actually perpetrating the
deeds;
they must have
manifested their sharing of a common purpose with the perpetrators
of the deeds by themselves individually performing
some act of
association with the conduct of the others;
they must have the
necessary
mens rea
.
See:
S v Mgedezi
and Others
1989 (1) SA 687
(A).
[30] In
S v Khumalo
en Andere
[1991] ZASCA 70
;
1991 (4) SA 310
(A) 343J it was held
“
Wat bewys
moet word, is die opset van elke beskuldigde. As gepoog word om
daardie opset af te lei van die geestesgesteldheid van
‘n
groter groep mense, kan so ‘n afleiding alleen geregverdig word
waar die Hof geen redelike twyfel het nie dat al
die lede van die
groep wel so ‘n eensgesinde opset gehad het en dat die
beskuldigde deel van die groep was in die sin dat
hy daardie opset
gedeel het.”
I may add that in a civil
matter the deduction will be made on a balance of probabilities.
[31] As already indicated
there is no or very little evidence of any individual respondent
(other than respondent 9 in the replying
affidavit) committing any
act complained about by the applicant.
[32] There are factual
disputes relating to the presence of respondents 1, 2, 3, 6, 7, 8, 9
and 13 either at the meeting or at any
of the gatherings at
applicant’s premises on 20
th
May or 21
st
May 2013. Of the remaining respondents not one is identified in the
founding papers as a perpetrator of any of the acts complained
about
by the applicant, probably because the applicant was under the
impression and as a result of urgency that it would suffice
if he
identifies the respondents as members of the mob.
[33] It is also trite
that an interim interdict cannot be confirmed in the absence of facts
justifying a reasonable apprehension
that the harm complained about
is likely to be repeated.
[34] The only evidence in
this regard is the allegation that fourth to sixteenth respondents
had at the identification parade “collectively
intimate”
that they shall continue in their actions.
[35] Not only is the
identification parade in dispute but it is not clear what actions, if
any, they referred to and who specifically
uttered the threats. There
is no indication at all that the actions referred to, if I accept
that they were uttered refer to anything
unlawful.
[36] I accordingly make
the following order:
The provisional order
granted by Fischer AJ on 23 May 2013 is uplifted.
The application is
dismissed with costs.
________________
P.J.T. DE WET, AJ
On behalf of applicant:
Adv S. Grobler
Instructed by:
Kramer Weihmann &
Joubert
BLOEMFONTEIN
On behalf of respondents:
Adv S.J. Reinders
Instructed by:
Jacobs Attorneys
BLOEMFONTEIN
/spieterse