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[2013] ZALAC 12
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Democratic Union of Security Workers (DUSWO) and Others v Royal Serve Cleaning (Pty) Ltd (CA5/2012) [2013] ZALAC 12 (31 May 2013)
REPUBLIC OF SOUTH AFRICA
THE LABOUR APPEAL COURT OF SOUTH
AFRICA, CAPE TOWN
JUDGMENT
Reportable
Case no: CA5/2012
THE DEMOCRATIC UNION OF
SECURITY WORKERS (DUSWO)
..........................................................
First
Appellant
DUSWO MEMBERS EMPLOYED BY
THE RESPONDENT
....................................................
Second
and Further Appellants
and
ROYAL SERVE CLEANING (PTY) LTD
......................................................
Respondent
Delivered: 31 MAY 2013
CORAM: WAGLAY JP, TLALETSI
JA,COPPIN aja
JUDGMENT
___________________________________________________________________
TLALETSI, JA
Introduction
[1] This is an appeal against the
whole order of the Labour Courtper Conradie, AJ, in an urgent
application brought by the respondent
against its employees (second
and further appellants) and their union (the first appellant).
[2] In the application the respondent
sought orders to the following effect:
‘
2.1.
Ordering
the respondents to comply with the picketing rules issued on 8 July
2011 by the CCMA;
2.2.
Interdicting and restraining the first respondent from calling upon,
inciting or encouraging its members who are employed by
the
respondent to participate in unlawful gathering or demonstrating on
the premises of the Victoria and Alfred Waterfront and
the
respondent’s premises at Cnr Howard and Gardener Way,
Pinelands, Cape Town, in breach of the picketing rules established
by
the CCMA;
2.3.
Interdicting and restraining the second to further respondents from
participating in any unlawful gathering or demonstration
on the
premises of the Victoria and Alfred Waterfront and the respondent’s
premises at Cnr Howard and Gardener Way, Pinelands,
Cape Town, in
breach of the picketing rules established by the CCMA;
2.4.
That the second to further appellants be interdicted and restrained
from marching through the premises of the Victoria and
Alfred
Waterfront and the respondent’s premises at Cnr Howard and
Gardener Way, Pinelands, Cape Town;
2.5.
Interdicting and restraining the second to further respondents from
unlawfully disrupting and disturbing the peace at the premises
of the
Victoria and Alfred Waterfront including overturning of refuse bins
and obstructing members of the public in the ordinary
cause of their
visit or business to the Victoria and Alfred Waterfront; and the
appellant’s premises at Cnr Howard and Gardener
Way, Pinelands,
Cape Town;
2.6.
Interdicting and restraining the second to further respondents from
in any way interfering and obstructing access to an egress
from the V
and A Waterfront and the applicant’s premises;
2.7.
Interdicting and restraining the second to further respondents from
intimidating, assaulting or threatening any employee of
the
applicant,
2.8.
Authorising the South African Police Service to take such action as
it may lawfully be permitted to take in the event that
any of the
second to further appellants refuses to comply with the instructions
of the Sheriff or the obstruction of the Sherriff
in the execution of
his duties, save that this Order shall not preclude or limit the
South African Police service from exercising
any power which it may
have in terms of any law; and
2.9.
That the provisions of paragraphs 2.1 to 2.7 operate as an interim
interdict pending the return day of the application.
2.10.
That the costs of this application shall stand over the return day.
2.11.
That pending the return date the parties agree to be bound by,
implementand do all things necessary to resolve the dispute
between
them by way of the process set out in the agreement annexed hereto
marked “A.”’
1
[3] On 14 July 2011, without any
opposition by the appellants, the Labour Court granted the respondent
relief in the form of a rule
nisi which was returnable on 15 August
2011. On the return date, the respondent sought confirmation of the
rule with costs. This
time the appellants opposed the confirmation of
the rule, but it was nevertheless confirmed with costs. On 17
February 2012, the
Labour Court granted the appellants leave to
appeal to this Court.No costs order was made. What follows is a
factual background
relating to the dispute between the parties.
Factual background
[4] The respondent carries on business
in the cleaning services industry. Part of the respondent’s
business involves cleaning
the premises of its clients. Lexshell 44
General Trading (Pty) Ltd, commonly known as the Victoria and Alfred
Waterfront (V and
A Waterfront),is one of the respondent’s
clients. The second and further respondents were employed by the
respondent and
were allocated to clean the premises of the V and A
Waterfront.
[5] Following a transfer of part of
the V and A Waterfront, the respondent acquired the employees in
terms of Section 197 of the
Labour Relations Act.
2
The first respondent (‘the
union’), acting on behalf of its members, demanded improvements
to theterms and conditions
of employment of its members. The union,
thereafter, referred a dispute to the Commission for Conciliation,
Mediation and Arbitration
(“the CCMA”). The dispute was
certified unresolved, entitling the union to embark on strike action.
[6] A dispute arose between the union
and the respondent concerning picketing rules. The parties acquired
the services of the CCMA
to resolve their dispute relating to
picketing rules. On 7 July 2011, the union notified the respondent
that its strike would commence
on Monday 11 July 2011 at 06:00. At
this time, there were still no picketing rules either agreed upon, or
determined by the CCMA.
[7] It is common cause that late in
the afternoon of Friday 8 July 2011, the CCMA issued the picketing
rules and transmitted the
document to that effect by e-mail, to the
first appellant’s General Secretary, Piet Mabaso (“Mabaso”)
who is
said to have left the office for Johannesburgthe same day.
However, the CCMA did not send a copy of the picketing rules to the
first appellant’s Cape Town offices or to
itsorganiserresponsible for the strike, namely, Ntsikelelo Bizo
(“Bizo”).
[8] On 11 July 2011, the employees
embarked on a strike at 06h00. They picketed outside their workplace
at the V and A Waterfront.
Angelo Hendricks (“Hendricks”)
who is the respondent’s Regional Human Resources Manager
arrived at the V and
A Waterfront. Hendricks informed Bizo that the
picketing rules issued by the CCMA prohibited the employees from
among others, picketing,
gathering, or demonstrating in any way on
the premises of the respondent’s clients and that they were
acting in breach of
the picketing rules. Bizo,in response, informed
Hendricks that he did not know of any picketing rules.
[9] Hendricks stated that upon being
advised to leave the premises, some employees refused to leave the
premises and at least eight
of them gathered at the entrance to the
changing facilities and proceeded to picket on the premises chanting,
singing and blowing
vuvuzelas.Others proceeded slowly through various
streets and corridors. Along the way, some overturned and emptied
refuse bins,
uprooted plants and blatantly marched through
flowerbeds. However, according to Bizo upon being shown the picketing
rules by Hendricks,
he instructed the employees to leave the premises
and they complied with his instructions and left the premises. They
left the
premises peacefully without causing any damage or
disruption. Bizo, who was the responsible union official and a
marshall on the
day, averred that he was satisfied that the picketing
rules were not breached and he was very strict with the employees. He
disputed
that any of the union members were responsible for the
scattered papers depicted on the photographs and contended that there
was
nothing untoward with the photographs.
[10] Hendricks mentioned, further,
that he received reports that on the same morning, the employees took
up positions contrary to
picketing rules in the area around the
respondent’s offices in Pinelands and destroyed the area,
ripped up plants and scattered
litter at the entrances to its
premises. He also received reports from non-striking staff members
that striking employees at the
train station and bus station in Cape
Town had prevented employees from coming to work at the V and A
Waterfront.
[11] However, according to Bizo, the
employees, who were at the V and A Waterfront, proceeded directly to
Pinelands. The employees
were led by him and Elvis Dlamini (shop
steward). Neither of them wasaware of any scattering of litter or
vandalising of plants
as alleged by Hendricks. He, further, denied
that the photographs, attached to the founding affidavit, depicted
any unlawful conduct
by the union members.
[12] Bizo mentioned further that on
Tuesday 12 July 2011, the union members held their picket in
compliance with the picketing rules
at the entrance to the V and A
Waterfront from approximately 10h00 to 13h00. The South African
Police Services members were present
monitoring the situation and did
not intervene since there were no complaints. At 13h00, they went to
the respondent’s Pinelands
premises where they held another
peaceful picket in compliance with the picketing rules from
approximately 14h30. However, he mentioned
that soon after their
arrival some union members made a small fire, on a driveway in
Pinelands using cardboard. This incident was
brought to his attention
and he immediately told the union members responsible that they were
not permitted to make the fire and
the members responsible
immediately put out the fire and apologised for their conduct.
According to him, the police who were present
did not even intervene
since they were satisfied that the organiser had the situation under
control.
[13] According to Bizo, at
approximately 16h00, Hendricks invited him aside in order to give him
a document which he described as
an offer. When Bizo attended at the
respondent’s offices with Dlamini and another shop steward,
Siyabulela Maphikana,they
were instead presented with the “Court
papers” pertaining to this matter. They signed to acknowledge
receipt. Whilst
inside the offices, they received reports that the
gathering of union members had been dispersed for no reason by the
police using
a water cannon r.
[14] As already pointed out, the
matter was placed on the roll for hearing on 14 July 2011. In light
of the denial of the appellants
to any wrongdoing and their
commitment to conduct themselves in a lawful manner and to abide by
the picketing rules, the rule
nisi
was issued by consent. The
parties further agreed to a temporary cessation of industrial action
and for the appointment of a mediator
to assist them to resolve the
substantive dispute relating to the alleged deferential conditions of
employment. However, this dispute
could not be resolved by the
appointed mediator.
[15] On the return date, that is 16
August 2011,the respondent moved for the confirmation of the rule
nisi
with costs . This was opposed by the appellants. In the
main, the appellants contended that the respondent was not entitled
to
the confirmation of the rule
nisi
since the requirements
for the relief sought had not been met, and that no costs order
should be made against the appellants.
Judgment of the Court
a quo
[16] In its judgment, the court below
held that Bizo disposed to an answering affidavit on behalf of the
appellants and later to
a supplementary answering affidavit in which
he claimed not to have seen the respondent’s supplementary
affidavit when he
deposed to the answering affidavit. The court found
him not to be truthful because, according to the Labour Court, Bizo
dealt with
an issue of the employees making fire at the respondent’s
Pineland premises which issue was only raised in the respondent’s
answering affidavit.
[17] As regardsthe requirements for
final relief, the Labour Court held that the respondent had
established a clear right in that
it was entitled to expectthe
appellants to behave in an orderly and lawful manner in pursuance of
their strike; that the respondent
hadestablished an injury committed
or reasonably apprehended in that on the respondent’s version,
the striking employees
were gathered at the V and A Waterfront in
areas which were off limits in terms of the picketing rules and,
further, that the commercial
relationship with its client, the V and
A Waterfront, could be affected by the unlawful conduct of the
appellants given the tough
stance which the V and A Waterfront
clearly took in respect of the strike action on its premises.
[18] With regard to the requirement of
no other alternative remedy available to the respondent, the Labour
Court considered the
provisions in the picketing rules providing for
the convenor of the Shopstewards and Company Managers to, as soon as
possible,
endeavour to resolve any alleged breach of the picketing
rules by either party. The Labour Court found the process proposed
not
to be a reasonable alternative remedy in circumstances where a
party to the agreement has already acted in flagrant violation of
the
rules in question and, further, where any unlawful conduct needed to
be addressed without further delay.
[19] In awarding costs against the
appellants, the Labour Court held the view that even if there was an
on-going relationship between
the parties it saw “no reason why
the respondent should not be entitled to its costs” and that if
the union regarded
the relationship to be important it should then be
expected that they would do everything possible to ensure that
picketing rules
are communicated and any picketing is in terms of
those rules. The Labour Court concluded that “the fact that
Bizo was not
honest in his second affidavit is also a consideration
in awarding costs against the respondents”. In addition to
confirmation
of the rule
nisi,
the appellants were ordered to
pay the costs of the application.
The appeal
[20] The grounds of appeal upon which
the judgment and order of the Labour Court is challenged are, in
essence, that the Court erred
in granting final relief in
circumstances where the pre-requisite therefore had not been met;
erred in finding that Bizo was a
liar because he claimed not to have
had sight of Hendrick’s supplementary affidavit when deposing
to his first affidavit;
and erred in awarding costs against the
appellants.
[21] The respondent is not opposing
the appeal. In this Court, counsel for the appellants argued that the
respondent had failed
to show that it had a clear right to an
interdict; the alleged injury was in dispute and based on hearsay and
that neither the
respondent, nor the Court below, referred the matter
to oral evidence; that there was an adequate alternative remedy
provided by
the picketing rules;and that the finding, that Bizo was a
liar, was wrong in fact and in law.
[22] The nature of the remedy the
respondent applied for in the court
a
quo
is a final interdict
intended to secure a permanent cessation of unlawful conduct on the
part of the appellants. In order to be
granted such relief, the
respondent had to establish on a balance of probabilities all of the
three well-known requisites, namely
(i) a clear right on its part,
(ii) an injury actually committed or reasonably apprehended, (iii)
the absence of any other satisfactory
remedy available to it.
3
All three requirements must be present
and be supported by evidence. The respondent had to establish that it
had a clear right in
that it expected the appellants not to breach
the picketing rules, and that the applicants wrongfully and
unlawfully breached the
picketing rules or that the respondent had a
reasonable apprehension that the applicants would breach the
picketing rules and finally
that it had no adequate, alternative
relief.
4
[23] The appellants have denied the
allegations averred by the respondent. They in particular denied that
they had any knowledge
of the existence of the picketing rules when
the strike action started; and averred that as soon as the rules were
brought to its
official’s attention, the striking employees
picketed within the parameters of the rules. They denied any
wrongdoing on their
part. Their denial is not a bold one since they
give an account of their activities. Furthermore, some of the
averments made on
behalf of the respondents are based on hearsay
evidence which was challenged by the appellants as incorrect.
[24] The effect of the denial on the
part of the appellants meant that there is a dispute of fact. In the
event, a final interdict
should only be granted in motion proceedings
if the facts as stated by the respondents together with the admitted
facts in the
applicant’s affidavits justify such an order. The
position was authoritatively stated by Harms DP as follows:
5
‘
Motion
proceedings, unless concerned with interim relief, are all about the
resolution of legal issues based on common cause facts.
Unless the
circumstances are special they cannot be used to resolve factual
issues because they are not designed to determine probabilities.
It
is well established under the
Plascon-Evans
rule
that where in motion proceedings disputes of fact arise on the
affidavits, a final order can be granted only if the facts averred
in
the applicant's (Mr Zuma's) affidavits, which have been admitted by
the respondent (the NDPP), together with the facts alleged
by the
latter, justify such order. It may be different if the respondent's
version consists of bald or uncreditworthy denials,
raises fictitious
disputes of fact, is palpably implausible, far-fetched or so clearly
untenable that the court is justified in
rejecting them merely on the
papers. The court below did not have regard to these propositions and
instead decided the case on
probabilities without rejecting the
NDPP's version.’
In
casu,
having not referred the
matter to oral evidence to resolve the disputes of facts, the Labour
Court ought to have decided the disputed
facts in favour of the
appellants and not grant the final relief.However, the court seems to
have incorrectly accepted the respondent’s
version despite the
factual disputes and averments based on hearsay allegations.
[25] I agree with the contention by
the appellants that the finding by the Labour Court that Bizo lied
when he denied knowledge
of the existence of the supplementary
affidavit at the time when he deposedto his answering affidavit is
incorrect. This is a finding
that could not have been made on the
papers, especially, since Bizo gave reasons for his denial. It is a
matter that could only
have been resolved through oral evidence.
[26] In light of my finding that the
matter should have been decided in favour of the applicants, I am of
the view that the finding
by the Court below,that the picketing rules
did not provide the respondent with an adequate remedy, is not the
correct one. Such
a finding cannot stand since the respondent had
failed to establish that there was an injury actually committed or
reasonably apprehended.
In fact, at the time when the rule was
confirmed, the striking employees had been back at work for a period
in excess of a month.
The interdict granted would have been to
interdict conduct which had already taken place. The object of an
interdict is the protection
of an existing right and is not a remedy
for the past invasion of rights.
6
It is, therefore, not necessary to
make any determination as to whether the picketing rules provided an
adequate remedy to the respondent
that would render the granting of
the interdict incompetent under the circumstances.
[27] The appeal should, therefore,
succeed and it would be in accordance with the requirements of the
law and fairness that the
appellants should not be awarded costs in
this Court since the appeal was not opposed. It would also be unfair
and not in accordance
with the requirements of the law to make any
order as to costs in the court below.
Order
[28] In the result, the following
order is made:
1. The appeal succeeds and the order
of the Labour Court is set aside and substituted as follows:
‘
The Rule
Nisi
is discharged and the application is dismissed with no order as to
costs.’
2. There shall be no order as to
costs.
_____________________
Tlaletsi JA
Judge of the Labour Appeal Court
I agree
______________________
Waglay JP
Judge President of the Labour Appeal
Court
I agree
______________
Coppin AJA
Acting Judge of the Labour Appeal
Court
Appearances:
For the Appellant: Adv S Harvey
Instructed by: Marieke van Rooyen
Attorneys, Stellenbosch
For the Respondent: No appearance
1
Annexure
A is not relevant for the determination of the appeal and is
therefore omitted.
2
Act
66 of 1995.
3
Sanachem
(Pty) Ltd v Farmers Agricare (Pty) Ltd and Others
[1995] ZASCA 2
;
1995 (2) SA
781(A)
at 788J–790C.
4
Diepsloot
Residents and Landowner’s Association v Administrator, TVL
[1994] ZASCA 24
;
1994 (3) SA 336
(A) at 344 H-J.
5
National
Director of Public Prosecutions v Zuma
[2009] ZASCA 1
;
2009 (2) SA 277
(SCA) at
para 26.
6
Condé
Nast Publications Ltd v Jafee
1951 (1) SA 81
(C) at 86C-J;
Phillip Morris Inc and Another v Marlboro Shirt Co SA Ltd and
Another
1991 (2) SA 720
(A) at 735 B.