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[2020] ZALAC 68
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Commercial Stevedoring Agricultural & Allied Workers Union and Others v Oak Valley Estates (Pty) Limited and Another (CA11/19) [2020] ZALAC 68; (2022) 43 ILJ 1241 (LAC) (17 November 2020)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, CAPE TOWN
Reportable
Case
no: CA11/19
In
the matter between
:
COMMERCIAL
STEVEDORING AGRICULTURAL
&
ALLIED WORKERS
UNION First
Appellant
LIST
OF PERSONS APPEARING IN ANNEXURE
‘
A’
AND ‘B’ OF THE NOTICE OF
MOTION Second
Appellant
and
OAK
VALLEY ESTATES (PTY)
LIMITED First
Respondent
BOLAND
LABOUR (PTY)
LTD Second
Respondent
Heard:
07
May 2020
Delivered:
17
November 2020
Summary:
Interdict
---employees interdicted from participating in criminal
acts----Labour Court’s order too broad and amounting to
eviction of employees from their homes located at the employer’s
premises.
Labour
Court jurisdiction ---S 69 not empowering Labour Court to adjudicate
violation of picketing rules in the absence of conciliation
Conciliation perquisite for Labour Court’s jurisdiction.
Coram:
Phatshoane
ADJP, Davis JA and Murphy AJA
JUDGMENT
DAVIS
JA
Introduction
[1] This
appeal against the judgment of the court
a quo
of 21 June 2019
raises important questions regarding the legal regime governing
picketing by employees who may or may not belong
to a trade union. It
also trenches upon the specific parameters within which an interdict
can be granted in circumstances where
it is alleged that the action
of employees and/or the members of the union have extended beyond the
right to picket peacefully.
Factual
background
[2]
The
background to the order granted by the court
a
quo
can
be traced to negotiations concerning allegations raised by
appellants
[1]
of significant
discrimination on the part of first respondent after the first
appellant had commenced organising at the premises
of the first
respondent in 2018.
[3] According
to Mr Karel Swart, the national organiser of first appellant ,these
engagements with the first respondent
proved to be fruitless.
Accordingly, first appellant declared a dispute which could not be
resolved. Thereafter a protected strike
was declared which was to
commence on 6 May 2019. Prior thereto, on 2 May 2019, a set of
picketing rules were issued by the Commission
for Conciliation,
Mediation and Arbitration (‘CCMA’) for the purposes of
this proposed strike.
[4] According
to the founding affidavit deposed to by Mr Christopher Rawbone-
Viljoen, the managing director of
first respondent, during the week
of 6 to 10 May 2019 there were numerous infringements of the
picketing rules by the appellants.
In particular, Mr Rawbone-Viljoen,
stated that on 5 May 2019, five men had entered first respondent’s
farm and attempted
to set fire to the veld surrounding first
respondent at two separate places. On 6 May 2019, some of the second
appellants left
the hostel accommodation situated on the premises
wearing masks or balaclavas in breach of the picketing rules. On 7
May 2019,
some of the second appellants moved out of the demarcating
picketing area and attempted to force their way to the main entrance
of the first respondent’s property which, in turn, necessitated
that first respondent had to call the public order police
service in
order to ensure that the second appellants returned to the designated
picketing area. On 9 May 2019, a delivery truck
belonging to the
first respondent and driven by one of its employees was subjected to
an attack by way of unnamed persons throwing
rocks at the truck as it
was being driven on the N2 highway. This resulted in a shattered
window on the driver’s side of
the truck and damage to the side
door thereof. According to Mr Rawbone-Viljoen, between 13 and 16 May
2019, further incidents took
place, including what he referred to as
very high levels of intimidation such as the blocking of the N2
highway as well as the
main entrance and access road to first
respondent’s farm.
[5] On
17 May 2019, first respondent’s attorneys addressed a letter to
first appellant in terms of which
an undertaking was sought that by
14h00 on that day first appellant’s members would refrain from
picketing outside of the
designated picketing area, desist from
wearing masks in breach of the picketing rules as well as the
carrying of dangerous weapons
and the obstructing of the entrances to
the premises failing which the first respondent would apply to court
for an interim interdict.
The undertaking which was sought was not
given. Consequently, the respondents approached the Labour Court
which on 20 May 2019
granted an interim interdict by way of a rule
nisi. On 29 May 2019, Rabkin-Naicker J, sitting in the court
a
quo
, heard argument on the anticipated return date of the rule
nisi.
The
order and reasoning of the court
a quo
[6] On
21 June 2019, Rabkin-Naicker J granted an order in favour of the
respondents. The significance of the contents
of this order to the
appeal before this Court requires that it be reproduced in full:
’
1.1 The
second and further respondents whose names are set out in Annexure
“A1” and “B1”
attached to this judgment are
interdicted from participating in any unlawful or criminal acts in
support of furtherance of their
protected strike;
1.2 The
first respondent is directed to call upon the individual respondents
to desist from unlawful and/or
criminal acts in support or
furtherance of their protected strike.
1.3 The
second to further respondents are interdicted and restrained from:-
(a) Intimidation,
harassing, assaulting:
(i) any
employee of the first and/or second applicants whether such employee
is employed on a
temporary, casual, fixed term, fixed purpose or
permanent basis; or
(ii) any
other persons involved in or connected with the conduct of the first
applicant’s operations
or the business of the second applicant
at Oak Valley Farm, Grabouw (“the farm”), and/or
(iii) any
customers of, visitors to, supplies and other business associates of
the first applicant wishing
to visit the farm or do business with or
support the first applicant at the farm;
(b) From
in any way preventing any of the persons referred to above from
gaining access to the farm and premises
at Oak Valley, Grabouw,
Western Cape from which first applicant conducts its business
(hereinafter “the premises”);
(c) From
in any way preventing any of the persons referred to above from
leaving the premises;
(d) From
in any way unlawfully interfering with or obstructing the normal
operations of the first applicant’s
business at the farm and on
the premises;
(e) From
attending at the premises at any time save for the purpose of
presenting themselves for the execution
of their duties in accordance
with their contracts of employment with the Applicants;
(f) Prohibiting
the individual respondents from being within 800 metres of the
perimeters of any entrance
to the premises for purposes other than
those referred to in paragraph 1.3 (e) hereof or for purposes other
than the peaceful and
orderly picketing of the premises in accordance
with the picketing rules;
(g) Prohibiting
the individual respondents from damaging any property of the first or
second applicants;
(h) prohibiting
the individual respondents from setting fire or attempting to set
fire to any property of
the first applicant;
2.4 the
first respondent is interdicted and restrained from instigating,
inciting the second to further respondents
in engaging, inciting or
instigating in any unlawful conduct;
2.5 the
first respondent is directed to call on its members, including the
individual respondents to desist
from unlawful conduct as set out
above and comply with the agreed Picketing Rules and the terms of
this order.’
[7] In
granting this order, Rabkin-Naicker J was required to deal with a
number of different arguments put before
the court a quo by counsel
for the appellants. It was firstly contended that, in the event that
there were existing picketing rules
and that it was alleged that
there was a material breach thereof, the parties were bound to refer
the matter to the CCMA before
any of the parties were entitled to
approach the Labour Court for interdictory relief. This argument was
rejected by the court
a quo on the basis that s 69 (12) of the Labour
Relations Act 66 of 1995 (‘LRA ‘) provides:
‘
If a party has
referred a dispute in terms of subsection (8) or (11), the Labour
Court may, in addition to any relief contemplated
in s 68(1), grant
relief, including urgent interim relief, which is just and equitable
in the circumstances and which may include
an order-
(a) directing
any party, including a person contemplated in subsection (6) (a), to
comply with a picketing
agreement or rule;
(b) Varying
the terms of a picketing agreement or rule; or
(c) Suspending
a picket at one or more of the location designated in the collective
agreement, agreed
rule contemplated in subsection (4) or rules
determined by the Commission.’
[8] In
the view of the learned judge in the court a quo, the powers set out
in s 69 (12) needed to be read as an
addition to its exclusive
jurisdiction to interdict conduct in furtherance of a strike that
does not accord with Chapter IV of
the LRA. Thus in terms of s 69 (1)
of the LRA, the right to picket was set out as being for the purpose
of peacefully demonstrating
support for a strike. Therefore the court
was required to read s 69 (1) together with s 69(12). This meant that
the powers of the
Labour Court in respect of interdicting conduct
pursuant to a strike had to be read together with s69(12) of the LRA.
For this
reason, the objection to the jurisdiction of the Labour
Court interdicting conduct that breached picketing rules when the
impugned
conduct had to be located within the context of a strike had
no merit.
[9] There
was a further objection raised by counsel for the appellants, namely
that the rule nisi had been couched
in language which was far too
expansive in that it referred to ‘a third group of respondents
(being) those people who associate
themselves with individual
respondents and make common cause with them and physically support
the respondents in the criminal and
unlawful conduct referred to
thereafter.’ Counsel for the respondents did not pursue the
necessity of citing unidentified
respondents in this manner. Thus,
Rabkin-Naicker J declined to confirm part of the order which
concerned the obstruction of the
N2 highway outside of Grabouw and
which the founding affidavit in support of the application referred
to as ‘related protest
action’. In the view of the
learned judge, the phrase employed in s 69 of the LRA, namely a
picket by its members and supporters’
had to be read
restrictively ‘to cover employees who are not members of the
union and support the protected strike’.
It cannot be
interpreted to mean the public in general over whom a registered
union has no authority.’ However, she refused
to accept the
argument put up by the appellants that the failure to identify
individual employees in relation to specific unlawful
acts in breach
of the picketing rules meant that interdictory relief could not be
granted.
The
appeal
[10] With
the leave of the court
a quo
, appellants have approached this
Court on appeal. Three specific grounds of appeal have been raised:
(i) The
order of 21 June 2019 prohibits people from accessing their homes;
(ii) It
interferes with appellants freedom of movement;
(iii) Its
wording is vague and thus incompetent in law as it amounts to a
general and imprecise decree to
act lawfully.
Does
the interdict amount to an eviction order?
[11] The
central argument raised by Ms de Vos on behalf of appellants was that
the order prevented the second to
further appellants from being
within 800 meters of the entrance of the first respondent’s
farm for purposes other than complying
with their contracts of
employment or picketing in accordance with the picketing rules. In
her view, the interdict was in effect
an eviction order, given that
the second to further respondents resided on the farm as part of the
terms and conditions of their
employment and the order prevented them
from free access to their homes.
[12] It
was admitted on the papers by Mr Rawbone-Viljoen that the individual
employees resided in hostel accommodation
which was located on the
first respondent’s farm. It is therefore difficult to follow
the argument of Mr Stelzner ,on behalf
of the respondents, that all
that was required from the appellants was that they should have
accepted a tender from respondents
to offer changes to the proposed
component of the order which may have affected their right to enter
and exist their homes. If
it is correct, as it must be given the
affidavit deposed to by Mr Rawbone-Viljoen that the individual
employees reside on the farm,
then it follows that both paragraphs
1.3 (e) and (f) of the order which was granted represent obstacles to
their free and fair
access to their own accommodation. The order is
clear: individual appellants can only attend at the premises of first
respondent
for the purposes of presenting themselves for the
execution of their duties in accordance with their contracts of
employment’
(para 1.3 (e)) and they are prohibited from being
within 800 metres of the premises of any entrance to the premises for
purposes
other than presenting themselves for the execution of their
duties in accordance with their contract of employment (para1.3 (f)).
Whatever tender may have been made, these paragraphs remain in the
order of the court a quo.
[13] Mr
Stelzner argued that the appellants had never raised the issue of
eviction expressly in their papers before
the court a quo. This
submission raises the question as to whether the order constituted a
form of eviction, at least by implication
which on and of itself
would suffice to make out a case in favour of appellants .This
precise issue was canvassed by the Constitutional
Court in
Zulu
and others v eThekwini Municipality and others
2014 (4) SA 590
(CC) (
Zulu
). Dealing with an impugned order which authorised
the municipality to ‘take all reasonable steps to prevent any
persons from
,inter alia, occupying the Lamontville property which
was the subject matter of the order, Zondo J (as he then was) said at
para
24:
‘
There is nothing
in that part of the order to suggest that the occupation of the
property that was to be prevented did not include
continuing
occupation that it commenced prior to the granting of the order.
Indeed, the order seems wide enough to include the
prevention of the
continuation of such occupation. That means that in terms of that
part of the order the appellants could be prevented
from continuing
to occupy the Lamontville Property.’
Significantly,
Zondo J then went on to say at para 25:
‘
Preventing the
appellants from continuing to occupy the property would amount to
their eviction because they would be precluded
from either returning
to their homes after a temporary absence or because they would be
kicked out of their homes to prevent them
from continuing to occupy
the property. This means that, to this extent, that part of the
interim order is an eviction order.’
[14] That
is precisely what the effect of the impugned section of the order
granted by the court a quo implicated;
it trenched upon the rights of
the individual employees to enjoy peaceful access and egress from
their domestic residences. The
fact that counsel for the respondents
might have invited the court
a quo
to add any qualification as
the court may have considered necessary to make it absolutely clear
that the order was not intended
to infringe on the individual
appellants right of accommodation under their contracts of employment
is of no moment. It is a qualification
that had to have been inserted
into the express wording of the order so granted if it was not to
fall foul of the dictum set out
in
Zulu supra
by Zondo J.
[15] This
point is reinforced by the following observation contained in para 20
of the judgment in
Zulu
:
‘
It was clearly not
the intention of the respondents or indeed of the [MEC] to secure the
eviction of the [appellants] or the persons
who were already in
occupation at any of the properties including the Lamontville
Property through the order.’
This
observation however did not prevent the conclusion of court to which
I have already made reference.
[16] Although
the appellants also contended that the order restricted their freedom
of movement, this argument
was also targeted against para 1.3 (f) of
the order which I have already addressed and which, in my view, falls
foul of the approach
set out by the Constitutional Court set out in
Zulu, supra
.
[17] I
turn, therefore, to deal with the argument concerning the link
between the individuals to whom the order
is addressed, and the
conduct complained of by the respondents. It will become apparent
that this particular issue is linked to
an evaluation of the argument
concerning the precise nature of unlawful conduct as raised by the
appellants
The
link between individuals and the impugned conduct
[18] The
court
a quo
rejected the requirement of establishing a link
between the individuals who were interdicted and the impugned
conduct. In this the
court
a quo
adopted the view that the
respondents’ failure to identify the individual employees in
relation to specified unlawful acts
in breach with the picketing
rules did not render interdictory relief incompetent. It did so for
the following reason:
‘
The applicants
have set out a number of incidents relating to breach of the
Picketing Rules in their founding papers including intimidation
of
non-striking employees, the failure to keep to the picketing area,
the wearing of balaclavas in contravention of the said Rules
and an
attempt by the picketers to force their way through the first
applicant’s main entrance. They have also provided photographs
of some of these incidents.’
[19] Ms
de Vos contended that the respondents had used an impermissible
approach by assuming that all the people
who were protesting had
committed unlawful acts. In her view, respondents had tarred everyone
with the same brush and assumed that
all members of the first
appellant had behaved in the same fashion. It appears that initially
relief was sought against a broad
category of people. Upon the rule
nisi having being granted a number of employees desisted with strike
action. Thereafter, the
first respondent sought relief against only
against those people who persisted with the strike. The lists of
names attached to
a supplementary affidavit consisted of those
individuals who persisted with their strike action after the rule
nisi had been granted.
[20] Ms
de Vos contended that the list of employees who were interdicted was
not equivalent to a list of people
who might have engaged in unlawful
acts. Indeed the first respondent conceded that it could not identify
each individual who may
have committed an unlawful act. All that Mr
Rawbone-Viljoen could state in his affidavit was that both members of
this group (‘and
the various individual respondents whose names
are listed annexures A and B’) were present at the scene where
the various
acts of violence had been committed and thus breaches of
the picketing rules occurred. These individuals would have been aware
of the conduct of those around them. Hence, at the very least, they
then had supported the conduct of their co-workers. For this
reason,
these individuals had intended to make common cause with those who
actually perpetrated the offences, and they thereby
manifested common
purpose with the perpetrators by themselves performing some act of
association ‘with the conduct of the
others by being part of
the group and intended to support them in their conduct.’
[21] Ms
de Vos contended that no evidential basis had been provided by the
respondents for this allegation of common
purpose. There was no
evidence as to who had acted in association or with whom they had
acted. In short, there was no act of association
pleaded to justify
the order so granted.
[22] In
support of her argument, Ms de Vos referred to the judgment in
Rhodes
University v Student Representative Council of Rhodes University and
others
(
Concerned Staff at Rhodes University as Interveners
)
[2017] 1 All SA 617
(ECG) (
Rhodes).
In this case, the court
dealt with the question of interdictory relief sought against
students of the university engaging in unlawful
activities on the
applicant’s campus and those persons engaging in or associating
themselves with unlawful activities on
the applicant’s campus.
The question arose as to whether certain of the respondents to whom
order would apply would be subjected
to ‘an impossible standard
(that they) were not to be tainted by unlawfulness simply because
they are part of the crowd which
acted unlawfully.’ (para 55)
In this the court made reference to
South African Transport and
Allied Workers Union v Garvas and others
2013 (1) SA 83
(CC) at
para 53:
‘
Nothing said thus
far detracts from the requirement that the right in s 17 must be
exercised peacefully. And it is important to
emphasise that it is the
holders of the right who must assemble and demonstrate peacefully. It
is only when they have no intention
of acting peacefully that they
lose the constitutional protection.’
[23] Significantly,
the court in R
hodes
, considered that the assertions of certain
of the respondents ‘that they had done nothing wrong’ was
disingenuous in
that ‘there was no expression of contrition or
undertaking not to engage in such activities in the future. Of course
they
were at all times entitled to exercise their freedom of
expression, protest, picket and demonstrate lawfully in the limits of
s
17. I must accept that but for granting of the interim interdict
however chilling that may have been and even if this was
impermissibly
beyond that which ought to have been granted without
some interdict even of lesser breadth, it is possible that their
unlawful
activity would have continued.’ (para 93) In
Rhodes
,
the court was faced with affidavits from certain of the students to
whom the order applied denying that they had acted illegally.
The
fact that the court found that there had been no expression of
contrition or any undertaking not to engage in such activities
in the
future was considered to be fatal to their defence together with the
fact that but for the relief the unlawful activity
would have
continued.
[24] Ms
de Vos also relied on the judgment of Wallis JA in
Hotz and others
v University of Cape Town
2017 (2) SA 485
(SCA) (
Hotz
.).
This judgment does concern the question of the breadth of an
interdictory order that may be granted. In
Hotz
, Wallis JA
concluded that the University was entitled to a final interdict.
However the one granted by the court
a quo
was too broad in
that it infringed upon the appellants right to freedom of movement as
guaranteed in s 21 (1) of the Constitution
of the Republic of South
Africa, 1996. It also restricted their right to exercise the right to
freedom of association with others
who shared their view of problems
encountered in universities in South Africa. It also constituted a
substantial intervention in
their social lives. See paras 79 –
80. For these reasons, the order of the court
a quo
was
altered by way of a significant narrowing of its wording and hence
scope. OF added significance about the judgment in
Hotz
to the
present dispute is the rejection by the court of the argument that
the university was not entitled to a final interdict.
In particular,
Wallis JA said:
‘
Given the
vehemence with which the appellants expressed their complaints
against the university and its management it was probable
that they
would have continued their protests and the actions related to it if
able to do so … In the absence of any undertaking
from the
appellants not to repeat the conduct described above, the university
had a reasonable apprehension that unless an interdict
was granted
the students would continue with conduct of the same type in breach
of its rights.’ (para 75)
[25] In
summary, neither the judgment in
Hotz
nor in
Rhodes
supports the argument raised on behalf of appellants, namely that
it was impermissible to grant an order against the various individual
employees, notwithstanding that some of them may not have comported
themselves illegally.
[26] Mr
Stelzner on behalf of respondents referred to the replying affidavit
of Mr Rawbone-Viljoen in which it
was stated that ‘respondents
cannot identify these individuals other than on the basis of their
past action and threatened
future actions. They are not employees of
either of the applicants and are not known by name are any of the
applicants’ representatives
in this application. They are
however readily identifiable both with individuals and in a group
with reference to their actions
to describe on the body of the
affidavit and in the order.’
[27] Mr
Stelzner submitted that this paragraph referred to a third category
of appellants against whom an order
was originally sought but in
respect of which respondents abandoned their relief at the time the
final order was sought. In other
words, this paragraph did not refer
to any employees but to an unidentified group to whom the respondents
were unable to identify.
[28] There
is a further concern based on principle rather than on a particular
factual matrix. None of the judgments
relied upon by the appellants,
in particular neither that of
Hotz
,
Rhodes
or
Garvas
dealt with the situation of illegal picketing in circumstances
where an employer was unable to identity some of the picketers even
where the entire group of protestors were employees and from which
group some had acted illegally. On the- evidence, in this case,the
first respondent was able to name certain individuals who
participated in what it considered to be unlawful acts together with
a further group of unnamed but clearly unidentifiable individuals.
The case made out by respondents was that the acts complained
of
would continue unless an order was granted. To insist in the fraught
context of an industrial relations dispute that an employer
can only
gain relief against those employees which it can specifically name
from a group which was involved in unlawful activity
is surely a
bridge too far in that it could render an employer, in significant
part remediless, notwithstanding a clear apprehension
of harm.
[29] In
addition, the order as Mr Stelzner correctly pointed out would serve
only as a starting point. If there
was a contempt application brought
on the basis of conduct in breach of the order so granted, it would
have to be shown with greater
precision that a specified individual
had the necessary
mens rea
to breach the order of court. In
short, a bystander who had not breached the picketing rules would
have nothing to fear from an
order being so granted in that he or her
conduct would not have been in breach of the order. No illegal act
had been perpetrated
by such a person. To be in contempt, it would
also have to be shown that the respondent had knowledge of the order
and its contents.
See the instructive judgment in this connection in
Matjhabeng Local Municipality v Eskom Holdings Limited and others
2017 (11) BCLR 1408
(CC). In addition, the names set out in
annexures A and B are examined, it was possible for certain of the
employees so affected
by the order, if they so wished, to have
provided an undertaking that they would not participate in any
further illegal activity
and have shown some requisite contrition of
a kind which was set out in both the
Rhodes
and
Hotz
judgments. In short, once the third category had been removed
from the order, to this extent the order granted by the court a quo
was competent.
[30] There
is however a further issue which requires examination and that is
whether an order dealing with breaches
of picketing rules is
competent without any initial recourse to CCMA
The
proper approach to disputes regarding compliance with picketing rules
[31] Ms
de Vos contended that the court
a quo
did not have
jurisdiction to consider whether the picketing rules, in this case,
had been breached without this issue having been
referred initially
to the CCMA. In short, she contended that, if the respondents sought
an order directing the appellants to comply
with the picketing rules,
it had to ensure compliance with s 69 (12) (
a
) of the LRA
which empowers a court to direct any party to comply with the
picketing agreement or rule after the matter has been
referred to the
CCMA and it has failed to resolve the dispute. See s 69 (11) of the
LRA. In short, the submission was that the
court
a quo
did not
have jurisdiction until such time as the dispute regarding compliance
with the picketing rules had been referred to the
CCMA in terms of s
69 (8) which provides:
‘
(8) Any
party to a dispute about any of the following issues, including a
person contemplated in subsection (6)
(a), may refer the dispute in
writing to the Commission-
(a) an
allegation that the effective use of the right to picket is being
undermined;
(b) an
alleged material contravention of subsection (1) or (2);
(c) an
alleged material breach of a collective agreement or an agreement
contemplated in subsection (4);
or
(d) an
alleged material breach of a picketing rule determined in terms of
subsection (5).’
[32] The
only authority cited by the respondents as a counter to this
submission was a judgment of Landman J in
Lomati Mill Barberton (A
Division of Sappi Timber Industries) v PPWAWU and others
[1997] 4
BLLR 415
(LC) at 417 (
Lomati)
. In
Lomati
, the court was
approached as a matter of urgency to resolve dispute which had arisen
in regard to picketing rules. Although the
court referred to s 69 of
the LRA, Landman J, because of the urgency of the matter, effectively
condoned the absence of conciliation
by relying on s 157 (4) of the
LRA in order to assume jurisdiction and thereby grant urgent relief.
But s 157 (4) of the LRA headed
‘Jurisdiction of the Labour
Court,’ is no authority for the proposition that it should
override the express wording
of s 69. Section 157 (4) (a) provides
that the Labour Court may refuse to determine any dispute other than
an appeal or review
before the court, if the court is not satisfied
that an attempt was made to resolve the dispute through conciliation.
No reason
was offered in the judgment in
Lomati
or by Mr
Stelzner as to why this provision should empower the Labour Court to
assume jurisdiction on some pragmatic ground of urgency,
when there
is a clear architecture provided by the legislature for dealing with
picketing disputes.
[33] This
is made clear by the wording of s 69. In particular, s 69 (10) is
couched in peremptory language; that
is the Commissioner ‘must
attempt to resolve the dispute through conciliation’. In turn,
this implies that in order
for the Labour Court to have jurisdiction
to determine a dispute under s 69 (8) of the LRA, the dispute must be
conciliated by
the CCMA. By attempting to assume jurisdiction on a
rather vague ground of equity, the approach adopted in
Lomati
ignores the very express provision concerning the function of the
conciliation process in the case of picketing disputes, in particular
that set out in sections 69 (8) – (10) of the LRA.
[34] In
my view, s 69 (10) constitutes a requisite for the preLabour Court to
assume jurisdiction. Section 157
(4) presupposes that a court has
jurisdiction to determine the dispute but then refuses to do so for
various reasons.There is nothing
in this section that provides the
Labour Court with the power to condone the fact that it does not have
jurisdiction in terms of
s 69 in the first place nor is there any
express provision that a court can ignore the carefully calibrated
conciliation process.
In summary, the approach taken in
Lomati
is
incorrect and should not be followed in future. This finding has
implication for parts of the order which was granted by the
court
a
quo;
that is those parts of the order which relate to allegations
that the picketing rules had been breached. These allegations, on the
basis of the reasoning adopted above, should have been referred to
the CCMA for resolution.
Conclusion
[35] In
the result, there are a number of components of the order granted on
21 June 2019 that have to be set aside.
In particular paragraphs 1.3
(b) and (c) of the order which concern alleged breaches of the
Picketing Rules together with paras
1.3 (e) and 1.3 (f) which have
been found to be in effect to have been an eviction order.
[36] There
was a cross-appeal lodged by respondents regarding the failure of the
court a quo to make a cost order
in favour of the respondents. In the
light of the approach adopted, the cross-appeal should fail. As the
appellants should have
been materially successful in this appeal,
costs should follow the result. As the respondents should only have
met with limited
success before the court a quo, no order as to costs
pursuant to that application should be granted.
The
order
[37] For
all of the reasons set out the following order is granted.
1. The
appeal against the order of the Labour Court of 21 June 2019 is to
the extent set out
is upheld with costs.
2. The
order of the Labour Court is set aside and replaced with the
following order:
2.1 The
second and further respondents whose names are set out in Annexure
“A1” and “B1”
attached to this judgment are
interdicted from participating in any unlawful or criminal acts in
support of furtherance of their
protected strike;
2.2 The
first respondent is directed to call upon the individual respondents
to desist from unlawful and/or
criminal acts in support or
furtherance of their protected strike.
2.3 The
second to further respondents are interdicted and restrained from:-
(a) Intimidation,
harassing, assaulting:
(i) any
employee of the first and/or second applicants whether such employee
is employed on a temporary,
casual, fixed term, fixed purpose or
permanent basis; or
(ii) any
other persons involved in or connected with the conduct of the first
applicant’s operations
or the business of the second applicant
at Oak Valley Farm, Grabouw (“the farm”), and/or
(iii) any
customers of, visitors to, supplies and other business associates of
the first applicant wishing
to visit the farm or do business with or
support the first applicant at the farm;
(b) From
in any way unlawfully interfering with or obstructing the normal
operations of the first applicant’s
business at the farm and on
the premises;
(c) Prohibiting
the individual respondents from damaging any property of the first or
second applicants;
(d) prohibiting
the individual respondents from setting fire or attempting to set
fire to any property
of the first applicant;
2.4 The
first respondent is interdicted and restrained from instigating,
inciting the second to further respondents
in engaging, inciting or
instigating in any unlawful conduct;
2.5 The
first respondent is directed to call on its members, including the
individual respondents to desist
from unlawful conduct as set out
above and comply with the agreed Picketing Rules and the terms of
this order;
2.6 There
is no order as to costs.
Davis
JA
Phatshoane
ADJP and Murphy AJA concur.
APPEARANCES:
FOR
THE APPELLANTS: Seri
Law Clinic
FOR
THE RESPONDENTS: Basson Blackburn Inc
[1]
These were the respondents before the court a quo. In this
judgements, I shall refer to these parties as the appellants and the
applicants before the court a quo as the respondents.