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[2021] ZALAC 26
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Thobela and Others v Apollo Bricks (Pty) Ltd (JA 34/2019) [2021] ZALAC 26; [2021] 8 BLLR 787 (LAC); (2021) 42 ILJ 1940 (LAC) (31 May 2021)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
no: JA 34/2019
In
the matter between:
PAUL
THOBELA AND 52
OTHERS First
Appellant
NATIONAL
UNION OF MINEWORKERS Second
Appellant
and
APOLLO
BRICKS (PTY)
LTD Respondent
Heard: 19
November 2020
Delivered: 31
may 2021
Coram: Davis
JA
,
Murphy
AJA Savage AJA
JUDGMENT
DAVIS
JA
[1] This
case illustrates fundamental problems inherent in the regulatory
system which was set up in terms of the
Labour Relations Act 65 of
1995 (‘LRA’). Fundamental to this regulatory regime was
the objective of the expeditious
resolution of labour disputes. In
sharp contrast, the present case stretches back to September 2014,
following strike action by
employees of respondent, (first appellant
whom I shall refer to as the individual appellants) which commenced
on 4 September 2014
and ended 12 September 2014. Disciplinary action
was taken against the individual appellants, following upon which a
lengthy arbitration
hearing commenced on 11 March 2015. It culminated
in an award in which the arbitrator found that the dismissals of the
individual
appellants were substantially fair and had been effected
by way of a fair procedure. More than three years later, Whitcher J,
sitting
in the court
a quo,
dismissed an
application, wherein the appellants sought to have the award reviewed
and set aside.
[2] Leave
to appeal this judgment was granted on 25 March 2019. More than a
year later, the appeal was heard before
this Court. This long running
saga represents an unsatisfactory state of affairs which requires a
comprehensive examination of
the entire regulatory system in order to
bring it into alignment with the objective of the expeditious
resolution of labour disputes.
The
factual matrix:
[3] Notwithstanding
the length of the arbitration hearing and the voluminous evidence,
the scope of the dispute
was confined as a result of a detailed
pre-arbitration minute of 5 May 2015, to which I shall refer
presently.
[4] Suffice
to say of the facts: On 12 September 2012, the second appellant and
the respondent entered into a collective
agreement that included
specific picketing rules. On 1 September 2014, second appellant gave
notice to the respondent that it intended
to embark on industrial
action on 4 September 2014. There does not appear to be any dispute
that the industrial action embarked
upon, inter alia, by the
individual appellants included violent and obstructive behaviour.
This conduct prompted an application
by the respondent to the Labour
Court on 10 September 2014 at which Snyman AJ which issued an interim
interdict, which order subsequently
became final. The order provided
that:
‘
NUM
and all its members at the respondent’s workplace were
interdicted and restrained from:
-
Coming
within 100 meters of the respondent’s premises and entrances;
-
Harassing,
threatening, assaulting, intimidating or removing from the premises,
any member of management, non-striking employee,
client, independent
contractor, replacement labour or visitor to the respondent’s
premises;
Interfering
with the loading, supply; and transport of any goods or products
manufactured and dispensed at the premises;
NUM
and its members were ordered to comply with the terms and provisions
of the Agreement on Protected Strike and Picketing Rules
entered into
between the applicant union and the respondent;
NUM
was ordered to take all reasonable steps and measures to ensure
immediate compliance with this order by its members.’
[5] The
respondent contended that the individual appellants had not only
breached this order but had acted violently,
blocked entrances to
respondent’s premises and had intimidated those employees who
wished to continue to work. Accordingly,
a series of disciplinary
hearings were held in which each of the individual appellants were
charged as follows:
‘
1.1
Gross
misconduct: in that you, amongst other, made yourself guilty on one
or more of the following:
-
Threatening
violence, physical assault, intimidation, undermining the company’s
operations, ignoring picketing rules, interfering
with non-striking
employees, blocking entrances etc.
-
Such
conduct perpetrated had detrimental effect on the company, its
business and employees.
1.2
In
Breach of a Labour Court Order: on that you breached one or more of
the terms and conditions of the court order you, amongst
others, form
part of some of the employees who either came within 100 meters
radius from the company premises, intimidated, assaulted
employees,
blocked access to company premises and prohibited persons and traffic
from freely entering or exiting the premises,
prohibiting your
employer to conduct its normal business activities during a protected
strike.’
[6] After
examining the evidence, the arbitrator found, with the exception of
one allegation of assault, that the
respondent had proved, on a
balance of probabilities, that the individual appellants were guilty
as charged. Invoking the doctrine
of common purpose, the arbitrator
held:
‘’
.
.
applicant
had the responsibility to comply with the picketing rules to which
their union had agreed, and with the interdict. As
an individual
component of the group of strikers, each of them had a duty to ensure
that the group complied with the picketing
rules and the interdict.
Each of them had an opportunity to state his/her case at the
disciplinary hearing as well as the arbitration,
and to show shy her
or she should not be blamed. None of the applicants showed why he or
she should not be blamed. It is not necessary
to apportion blame on
any individual. On these considerations I find that a finding of
guilty of each applicant is justified on
the basis of the doctrine of
team misconduct.’
[7] The
arbitrator found that there was no basis by which to hold that the
disciplinary hearings had not been procedurally
fair and thus upheld
the dismissals of all the individual appellants. Appellants were
unsuccessful in their application before
the court
a
quo.
Significantly, for the purposes of this appeal
Whitcher, J ordered the second appellant to pay respondent’s
costs. This part
of the order became a major part of the second
appellant’s submissions before this court.
The
appeal:
[8] Although,
in general, an appeal of this nature requires this court to examine
the reasonableness of the award
of the Commissioner of 13 July 2015,
in terms of the approach set out in
Sidumo & another v
Rustenburg Platinum Mines Ltd
2008(2) SA 24 (CC) as well as
in
Herholdt v Nedbank Ltd
2013(6) SA 224 (SCA), the
enquiry, which this court is now required to undertake, was
significantly narrowed by the pre-trial
minute to which I have
already made reference. In this minute the issues which were placed
in dispute were set out in some detail
as follows:
‘
30.
PROCEDURAL
FAIRNESS-
30.1
The
Applicants allege the dismissals were
procedurally
unfair
as they were not permitted to be represented in the internal
disciplinary hearing by the Union Official of their choice
at the
internal hearings. The parties agree that this will be dealt with by
way of legal argument and that evidence about this
will not be
required.
30.2
The
Applicants claim that the Respondent acted
inconsistently
by
not dismissing at least 10 other employees who were committing the
same misconduct as the dismissed employees. The names of these
employees will be provided to the Respondent by 2 April 2015. The
parties agree that this aspect overlaps with substantive fairness.
30.3
There
are no other procedural aspects in dispute.
31.
SUBSTANTIVE
FAIRNESS:
-
The applicants allege the dismissals were substantively unfair for
the following reasons:
31.1
Applicants
1-36 were provoked by other employees into committing the misconduct
relating to the incidents in the extruder and robot
sections of the
plant as per the CCTV footage
31.2
Applicants
37-54 did not do anything wrong and are therefore not guilty as
charged.
31.3
there
are no further substantive issues in dispute.
31.4
Harshness
of sentence.’
The
appeal through the prism of the pre-trial minute:
[9] The
detailed contents of the pre-trial minute dictates that the
“reasonableness” enquiry is thus
confined to the findings
concerning the disputed issues which were expressly set out in the
pre-trial minute.
[10] Turning
to the question of substantive fairness, the question was raised
squarely in the pre-trial minute
as to whatever individual appellants
1 to 36 were provoked by other employees into committing misconduct;
hence the only question
for determination on appeal was whether
provocation had been proved on a balance of probabilities to justify
an argument that the
arbitrator had acted unreasonably in terms of
the established test.
[11] In
so far as the balance of the individual appellants were concerned it
was argued that “
they done nothing wrong.”
Again
it is to that specific question, as set out in the pre-trial minute,
and that question alone that we must turn.
[12] The
argument of appellants with regard to the defence of provocation
turned on evidence given by Mr Dlamini,
a packer employed by
respondent. He appeared on video footage which recorded events which
had taken place on 5 September 2014.
According to his evidence, he
and a number of strikers had proceeded to the Thankalani Hostel to
take tea.
En route
they passed a number of
non-striking workers who “
started calling our names
screaming.”
He further testified that “
they
called of us that are stupid”
and generally acted in a
provocative manner towards the striking workers. It was as a result
of this provocation, according to Mr
Dlamini, that the striking
workers became angry, confronted the non-striking workers. This
caused the violent clash between
the striking and non-striking
workers. Much was made by Mr Dlamini about one of the non-striking
workers who had “
showed us the middle finger.”
[13] It
was put to Mr Dlamini at the hearing that the events that were
captured on the video clip took place at
between 7h45 to 7h48 in the
morning. The confrontation could not have taken place at around 10h00
as he had testified, that is
at a time when it might have been
plausible that these workers were proceeding to the hostel to take
tea. It was not disputed by
appellants’ counsel that there no
evidence provided to contradict the time lines which appeared on the
video clip.
[14] A
further difficulty with Mr Dlamini’s evidence concerned the
clarity with which the strikers could
hear the insults and see the
middle finger from where these events were alleged to have taken
place, being outside the exclusion
plant. Again the evidence of
respondent’s witnesses was uncontested: there was a distance
between the exclusion plant and
the location of the striking workers
of between 135 and 150 meters. Mr Van der Meer on behalf of
respondent, estimated the distance
to between 180 and 190m. When this
evidence is viewed as the only evidence provided by the appellant
with regard to provocation,
it is not possible to find that the
following conclusion reached by the arbitrator was unreasonable:
‘
It
is improbable that the strikers entered the plant as a result of
provocation. Even if they had been provoked their conduct does
not
meet the standard that is set in our law that the response to
provocation is excusable and if the reaction is reasonable in
proportion to the provocation. The severity of the strikers’
conduct, the assaulting of one non-striking worker and abducting
others. . . is disproportionate to allege provocation that was
allegedly caused by a comment / showing of a finger/taking
photographs accordingly provocation cannot excuse the conduct.’
[15] On
appeal, counsel for the appellants could point to no evidence which
gainsaid this conclusion or point to
any further evidence which might
indicate that the arbitrator had not taken material facts into
account in coming to the conclusion
at which she arrived.
[16] The
second issue regarding substantive unfairness was that the balance of
the applicants, that is those who
were not identified in the video
but in photographs, had ‘not done anything wrong’ and
that therefore it was unreasonable
to find them guilty as charged.
The record contains a series of photographs showing striking workers
carrying short branches, other
workers with branches of considerable
length and yet others armed with potentially dangerous objects, all
marching in a determined
aggressive and purposeful fashion.
[17] For
this reason, on appeal, counsel for the appellants focussed attention
exclusively on two of the individual
appellants. There was
considerable debate regarding the involvement and identification of
Mr Service Mashobng. Appellant’s
counsels’ argument was
based on the founding affidavit of Mr Nica Rakau, in which he stated:
‘
The
arbitrator’s finding that Mashobeng was guilty of the charges
simply because he had admitted to participation in the strike
from
the 8
th
to
the 12
th
September
2014, when the said strike was protected, and there was no evidence
of him acting in breach of any workplace rule or standard,
the
picketing rules or the court interdict, is defective and
unreasonable
.’
[18] The
difficulty with this version of events is that it was contradicted
expressly by the production manager
of respondent, Mr Zane Richards,
who confirmed that he had seen Mr Mashobeng at between 14h00 to 15h00
on 4 September as part of
the group of striking workers who had
participated in violent action. Mr Richards’ evidence was
confirmed by both Mr Van
der Meer and Mr Mokoena. They
testified that, on 4 September, Mr Mashobeng had been one of the
strikers who had surrounded
the bus which had transported Mr Mokoena
to respondent’s premises on 4 September 2014. Whatever the
merits of the denial
by Mr Mashobeng that he was not on the premises
on 4 September 2014, he had conceded that he was at the gate of
respondent’s
premises on 8 September 2014, during the strike
and had continued to be there until the end of the strike.
[19] In
short, on his own evidence, there was no basis by which to find that
he had not participated therein and
therefore was not as guilty as
the balance of the individual appellants in respect of the events on
which the charges had been
based.
[20] The
remaining appellant, who was the subject of debate about
participation, was Ms Nakwana. Appellant’s
counsel noted that
the only evidence presented with regard to her was a picture of her
sitting on the side of the road which on
respondent’s premises.
This is admittedly a somewhat more difficult case in that there is no
direct evidence, whether on
the record, by way of video or
photographs which linked Ms Nakwana to the events which gave rise to
the charges against all the
individual appellants and the finding
that their dismissal was both procedurally and substantially fair.
[21] An
examination of the photographs indicates that Ms Nakwana was within
the prohibited area, that is the area
in terms of which striking
workers were interdicted from entering pursuant to the order granted
by Snyman, AJ on 10 September 2014.
It was also common cause that the
contents of this order had been conveyed to the shop stewards and
through them to the striking
workers. At the very least, Ms Nakwana
had breached the court order and encroached onto the prohibited area
where violent conduct
had taken place and the picketing rules had
been breached. This in turn, called for some explanation as to
why she had not
associated herself with the course of conduct of the
balance of the appellants. Nothing was forthcoming to gainsay the
finding
that she exhibited a common purpose together with the balance
of the individual appellants.
[22] In
summary, this dispute had to be determined in terms of the disputes
set out in the pre-trial minute. There
was no evidence to which
appellants’ counsel could refer to show that the arbitrator had
omitted relevant evidence when arriving
at her award. On the
available evidence, the conclusion reached by the arbitrator was
clearly reasonable.
Costs
[23] There
was one other issue which was raised on appeal and that is the
question of costs. The second appellant
contended that the court
a
quo
had erred in finding that, although second appellant was
not a party to the case, the averments in the founding affidavit were
sufficient
to justify that it had joined litigious battle against
respondent and that an adverse cost order was justified against it.
[24] It
is difficult to divine the precise basis of this opposition to the
cost order. In the founding affidavit,
deposed to by Mr Rakau, who
referred to himself as the Legal Unit Head of the National Union of
Mineworkers, he said:
“
I
am duly authorised to depose to this affidavit and institute these
proceedings.”
[25]
I
n
paragraph 8.12 of the replying affidavit, the deponent Mr Chauke, who
referred to himself as ‘an adult male shopsteward
of the
National Union of Mineworkers at the Respondent’ workplace’
stated as follows in paragraph 10 of his affidavit:
“
NUM
is not itself a party to these proceedings”.
This
statement is clearly at war with the balance of this affidavit and
that which was contained in the founding affidavit. In paragraphs
8-9
of this affidavit, for example, Mr Chauke states:
‘
Nica
Rakau is an official of NUM, the union of which the applicants are
members, and I, on my behalf and the applicants confirm
my authority
and that of Rakau, NUM and Mothobi Attorneys to institute these
proceedings on behalf of the applicants, and the applicants
and I
hereby ratify all what NUM, Rakau and Mothobi Attorneys have done in
these proceedings.
In
any case, the individual applicants are themselves parties to these
processing.’
[26] Manifestly
second appellant attempted by way of paragraph 10 of the Chauke
affidavit to ‘hedge its bet’
with regard to an adverse
cost order. However, it is clear that the proceedings were instituted
by an official of second appellant
who had been duly authorised. To
the extent that there is any doubt, the existence of authorisation
can be found by way of a reasonable
inference drawn from the relevant
affidavits. There is therefore no basis by which to disturb the cost
order.
[27] For
all of these reasons, the appeal is dismissed with costs.
Davis
JA
Murphy
AJA and Savage AJA concur.
APPEARANCES:
FOR
THE APPELLANTS: Adv ML Khomola
Instructed
by Mohale Incorporated.
FOR
THE RESPONDENT: Helena Strijdom
Helena
Strijdom Attorneys for the Respondent