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[2014] ZALAC 31
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Food And Allied Workers Union v In2food (Pty) Ltd (JA61/2013) [2014] ZALAC 31; (2014) 35 ILJ 2767 (LAC) (12 June 2014)
REPUBLIC OF SOUTH
AFRICA
IN THE LABOUR APPEAL
COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
REPORTABLE
CASE NO: JA61/2013
FOOD AND ALLIED
WORKERS
UNION Appellant
and
IN2FOOD (PTY)
LTD
Respondent
Heard:
28 May 2014
Delivered:
12 June 2014
Summary: Alleged
Contempt of court order by a Trade Union – what constitutes
proof of trade union participating in an unprotected
strike - meaning
to be attached to a Trade union and its members ‘continuing’
a strike - strike unprotected and violent-
Labour Court interdicting
continuation of strike- strikers ignored order- Labour Court finding
union also in contempt of court-
Contempt of court principles
restated- whether trade union culpable of breach of court order a
question of fact - mere fact
that its members are in contempt
of court order is insufficient to establish breach of court order by
trade union - No proof that
Trade union in its own right in breach of
the court order - Appeal upheld - Labour Court order set aside –
nevertheless sentiments
expressed by Labour Court about need for
Trade union accountability for adherence to court orders approved and
endorsed
Coram:
Tlaletsi DJP, et Coppin, & Sutherland AJJA
JUDGMENT
SUTHERLAND
AJA:
Introduction
[1]
This appeal is against an order of the
Labour Court which held the appellant union in contempt of a court
order and imposed a fine
of R500,000. The judgment is reported as
In2Food (Pty) Ltd v FAWU and Others
(2013) 34 ILJ 2589 (LC). The single ground of appeal is that there
was no evidence of a breach of the court order by the appellant.
As
such, the appeal turns on a finding of fact.
[2]
The relevant circumstances are summarised
as follows. The workers of the respondent embarked on an unprotected
strike on 14 February
2013. The strike was violent. An interdict was
obtained against the appellant union and the individual strikers on
Saturday 16
February 2013 to address the unlawfulness of the violence
and to bring about the cessation of the unprotected strike. The
relevant
orders were:
‘
1.1
That [union and the strikers]…..be interdicted and restrained
from continuing with their illegal and unprotected strike
action.
1.2 That the [union
and the strikers] be interdicted and restrained from preventing
employees, replacement labourers, members
of management, drivers,
clients, suppliers and visitors free movement and access to the
premises of the [employer]
1.3 That the striking
employees be interdicted and restrained from coming within 300 metres
of the premises of the [employer]
1.4 That the striking
employees be interdicted and restrained from harassing , assaulting
and intimidating any non-striking
employee, replacement
labourer driver or visitor to the premises.
1.5 That the striking
employees be interdicted and restrained from carrying any weapons and
blocking the access in any manner whatsoever.
1.6 That the striking
employees be interdicted and restrained from interfering with the
supply and collection of and goods dispensed
at the [employer’s]
premises and supplied to clients.’
[3]
After the interdict had been granted, the
violence did not abate and the strike did not stop. Pursuant to an
urgent application
brought before the Labour Court, a rule
nisi
was issued on 22 February 2013, calling upon the interdicted parties,
ie, the appellant and its members, to show cause why they
should not
be held in contempt. In the affidavits, an account is given of the
striking workers’ vandalism, thuggery and utter
disregard for
the order.
[4]
In regard to the conduct of the appellant
union
per se
,
there is an allusion in the respondent’s affidavit to the
actions of a union official, William Ditjoe. As the violent strike
escalated from its commencement on 14 February, the respondent’s
management wanted the appellant to intervene. It wrote on
15
February, stating “…despite 4 attempts by your union to
convince the workers to return to work they do not listen
to you and
it is clear that you have no control over them.”
[5]
Ditjoe’s response, also on 15
February, a day before the interdict was granted without opposition,
accused the respondent
of causing the strike by refusing to bargain.
He stated further: “We will not be responsible nor our members
held liable
to such action” (sic). By so stating, he evaded
remarking upon the patent unprotected status of the strike,
unjustifiably
asserted the workers could not be liable for such
conduct and implicitly disavowed any responsibility by the appellant
in relation
to the continuation of the strike, characterised as it
was by barbarism.
Prima facie
,
it would be reasonable to regard the stance evidenced by these
remarks as deplorable, however, other indications of the appellant
union’s reaction to the strike ameliorate such a perspective,
not least the respondent’s own assertion of the four
attempts
by the appellant to end the strike at its outset being in vain.
[6]
On the strength of the respondent’s
allegations the court
a quo
,
on the return day of the rule
nisi
,
held that “the union and its members are clearly in contempt of
the order issued.” The Court
a quo
then made this important policy statement:
‘
The
time has come in our labour relations history that trade unions
should be held accountable for the actions of their members.
For too
long trade unions have glibly washed their hands of the violent
actions of their members. This in a context where the
Labour
Relations
Act
66 of 1995
,
which has now been in existence for some 17 years and of which trade
unions, their office-bearers and their members are well aware,
makes
it extremely easy to go on a protected strike, as it should be
in a context where the right to strike is a constitutionally
protected right.
However, that right is
not without limitations. Firstly, the proper procedures set out in
s
64
of the LRA should be followed. And secondly, it must be in line
with the constitutional right to assemble and to picket peacefully
and unarmed, as entrenched in
s 17
of the Bill of Rights. Very
simply, there is no justification for the type of violent action that
the respondents have engaged
in in this instance. And alarmingly, on
the evidence before me, the union and its officials have not taken
sufficient steps
to dissuade and prevent their members from
continuing with their violent and unlawful actions. Instead, having
confirmed that it
represents and acts on behalf of its members, the
union's organizer, Mr Ditjoe, merely stated that the unprotected
strike was 'as
a result of your refusal to bargain. We will not be
held responsible nor our members held liable for such action'.
These actions
undermine the very essence of disciplined
collective bargaining and the very substructure of our labour
relations regime.
The applicant has
suffered losses of more than R16 million as a result of the
respondents' actions. I cannot disagree with Mr
Bekker
when he
says that a fine of R500,000 to be paid by the union is not
unreasonable in these circumstances.”
Was
a Breach proven?
[7]
Proof of contempt of a court order
requires, in particular, proof of the order, of due service on the
relevant party, and
of deliberate wilful disobedience.
Moreover, there must be proof beyond reasonable doubt. (
Fakie
NO v CCII Systems (Pty) Ltd
[2006] ZASCA 52
;
2006 (4) SA
326
(SCA) at
[42]
).
[8]
The true question for decision is whether
the evidence adduced about the appellant union’s conduct
contributes to proving
that the appellant committed a breach of the
order, as distinct from a breach by the individual union members on
strike. An examination
of the order reveals that only orders 1.1 and
1.2 apply to the appellant. In essence the appellant, no less than
the strikers individually,
were forbidden to “continue”
the strike. More specifically, they were forbidden from blocking
access to the premises
and inhibiting people entering and leaving.
The question is therefore whether evidence exists of the appellant
doing these things.
[9]
The principle upon which a juristic entity
is held to perform acts is by acting through its officials, agents or
members, acting
within the scope of a mandate from the juristic
entity to persist in given activity. What is required is proof that
the strike
and the blockade occurred in pursuance of a decision by
the appellant or of an agreement with its members to strike. In the
case
of a protected strike, the observance of the formalities by a
trade union in terms of
section 64
of the LRA would establish the
fact of the union’s complicity. In the case of an unprotected
strike the establishment of
the fact of union complicity is likely to
be by inference.
[10]
Mr Van der Riet contends that upon a
reading of the order of the court
a quo
,
insofar as it requires action or inaction on the part of the
appellant union, there has been no evidence adduced of a breach by
the appellant; ie no case is made in the papers that union in its own
right “continued” with the strike after 16 February,
nor
that it in its own right blocked entrances to the premises.
[11]
Mr Bekker, for the respondent was not able
to point to any evidence of a breach by the appellant in its own
right. The argument
he advanced was twofold; first, that the conduct
of the appellant’s members must be attributed to the appellant,
and secondly,
it could not have been misunderstood by the appellant
when it got the court order that an interdict to stop from
“continuing”
with the strike meant that it had to take
positive steps to bring the strike to an end. He relied on the
passages from the judgment
of the court
a
quo
, cited above.
[12]
The first difficulty from which these
submissions suffer does not flow from the proposition that a trade
union can or ought to be
vicariously liable for its members’
actions, but rather, derives from a confusion of two distinct bases
for liability that
can be incurred by a juristic person. The fact
that a trade union can be liable for the acts of its members does not
assist in
deciding whether the trade union, in its own right, has
breached a court order. This distinction was also not addressed in
the
judgment of the court
a quo
.
The upshot is that when there is evidence to implicate the union
vicariously in the unlawful acts of its members, there may well
be an
action available to the respondent for redress, but the liability of
the appellant for contempt of a court order is strictly
determined by
reference to what the court ordered the trade union, itself, to do
and the presentation of evidence that it did not
do as it was told.
[13]
The second difficulty from which these
submissions suffer is the dependence on a generous interpretation of
the term “continue”
in the order directing a cessation of
the strike, to imply that the appellant
,
a fortiori,
had to take “‘positive
steps” to bring the strike to an end. What might such positive
steps be that are to be
implied by stating that the appellant was not
to continue with the strike? Bearing in mind the quasi-criminal
sanction for a breach,
it is to be expected from the text of an order
that the party interdicted is left in no reasonable doubt as to what
exactly is
to be done or refrained from. The formulation of the order
against the appellant is vague, having not been insightfully framed
with logistics of proof of breach and of effective execution in mind.
An interdict order against a union should prudently state
plainly
what action is mandatory, and not elide the union’s obligations
with that of its members. The terminology of, “‘continuing”
the strike, whatever broad meaning might be attributed to that term,
is, in my view, too vague to be useful in a context where
quasi-criminal sanctions are at issue.
[14]
In other cases where contempt proceedings
have been prosecuted that degree of clarity in the orders has been
the point of departure
for the enquiries. The point is illustrated in
Security Services Employers’
Organisation and Others v SATAWU
(2007)
28 ILJ 1134 (LC). The union was directed by a court order to ensure
that copies of an order interdicting further strike
action were
brought to the attention of its members by affixing copies at various
places and to maintain such notices until the
workers all resumed
work. The union did not do so. Thus a breach was proven. Upon that
platform the court addressed the reasons
why there was a breach and
unsatisfied with the explanation concluded that a contempt had
occurred and fined the union R500,000,
suspended on certain
conditions. The liability of the union was based on its direct breach
of obligations imposed upon it. A further
example is that of
Supreme
Spring, a Division on Met Industrial v MEWUSA
(J 2067/2010) where the relief granted in the interdict specifically
instructed the union to take concrete action, ie to refrain
from
inciting the striking employees from participation in the strike. The
union official responsible thought it appropriate to
approach the
Management and try to negotiate a cessation of the strike in return
for the employer abandoning the court proceedings.
The court held
that this behaviour was inconsistent with the order directing the
union not to encourage or incite the strikers
to persist, held the
union in contempt, imposing a fine of R100,000 on the union and
imposing suspended terms of imprisonment on
named union officials. At
[18] – [20] it was reasoned by Van Niekerk J as follows:
‘
[18]
In my view, it was incumbent on the union delegation, given the terms
of the interim order, and in
particular the interim interdict against
encouraging or inciting the striking employees from continuing their
strike, to have unequivocally
advised their members to return to
work. To use the opportunity of the meeting with management to
attempt to negotiate conditions
attaching to a return to work was a
wilful and
mala fide
defiance of the order.
[19]
It does not assist the general secretary of the union to raise the
defence (which he appears
to do) that the union did not sanction the
strike and that it was therefore not in contempt of the court order.
If that were so,
it would not have been open to Thobejane and Makgoba
to continue to use the strike as a bargaining chip to secure the
demands that
they tabled in their meetings with the applicant’s
management. In so far as the union relies on its constitution and a
memorandum
addressed to union officials on 19 October, in my view,
this does not assist the union. The existence of the constitution and
the
fact that the strike that is the subject of these proceedings was
called other than in accordance with its terms does not necessarily
mean that the union did not at least tacitly support the strike that
took place on 18 and 19 October 2010. It is significant that
at no
stage did the union contact the applicant to distance itself from the
strike action. As I have already found, the actions
of the union’s
deputy general secretary and organiser on 19 October were to continue
to use the strike as leverage to obtain
concessions from the
applicant’s management despite the clear terms of the order.
[20]
On this basis, the union acted in contempt of the order granted on 18
October, as did Thobejane
and Makgoba in their capacities as union
officials. For the same reasons, those of the individual respondents
who were part of
the union delegation, in their capacity as shop
stewards, are in contempt. On the papers, these persons are
identified as Zungu
and Mbanyatha.’
[15]
The sole morsels of evidence that have been
invoked to contend that there was a culpable act of association
between the appellant
and its members who had engaged in a strike
improperly, were, first, the letter of 15 February, referred to above
and, secondly,
an email of 26 February, sent shortly before the
return day, in which a union official, Sipho Mhlahlo, in response to
talks that
had taken place with the respondent to resolve the strike
writes:
‘
We
seem to be on par with regard to the prevailing situation and I am
certain that we will resolve this matter real soon. I will
use my
influence and move my members toward resolving and ending the strike
today, I however will need your legal team to withdraw
the
application at the LC on Friday [ie the return day of the contempt
application] as there will no longer be a need to enforce
the claim
against the union. Of course this will only be done at court when we
meet. I assure you that in future things will be
different and we
will not have this sort of thing happening outside the confines of
the law…’
[16]
Mr Bekker contended that this email of 26
February was further evidence of the appellant exploiting the strike
as leverage to win
a bargaining advantage, thereby placing the
appellant in a position similar to that described in
Supreme
Spring Case
(Supra). That reading of
the text is not justified, as there is no conditionality to the
request to withdraw the application. A
better reading is a plea by
Mhlahlo to assist him to influence the strikers to cease striking by
facilitating a claim that he could
make to his members that he had
the ear of the management of the respondent. Effective negotiation
strategy often requires one
negotiator to assist his opponent to
enable him to influence the opposing constituency. Moreover, the
context in which this letter
must be construed is the circumstances
described in the respondent’s letter of 15 February to the
appellant, in which the
failed attempts of the appellant to persuade
the strikers to cease are remarked upon.
[17]
No more evidence exists to describe what
the appellant did after service of the order. The Affidavit of
Ditjoe, delivered on the
return day, addressing the initial interdict
application, alleges that the appellant had advised members to return
to work; however
no detail or corroborative information is given when
or how such a communication took place. The application of the rule
in
Plascon-Evans Paints Ltd v Van
Riebeeck Paints (Pty) Ltd
1984 (3) SA
620
(AD) at 673E F means that this allegation of the appellant union,
then the respondent
a quo
,
must be accepted as the version upon which the decision of the court
had to made. Accordingly, there is no evidence of the appellant
deciding to block or inciting or encouraging the blockage of the
entrance.
[18]
The respondent’s thesis that a trade
union, as a matter of principle, has a duty to curb unlawful
behaviour by its members
indeed enjoys merit. Indeed, the principle
of union accountability for its actions or omissions is beginning to
gain recognition,
as evidenced by the decision in
FAWU
V
Ngcobo
NO
2013 (12) BCLR 1343
(CC) where, as
it happens, the very appellant in this case, was held liable to its
own members for failure to prosecute the members
interests properly
in litigation. However, there is no room, upon that platform alone,
to build a case that the appellant, in its
own right, in this
instance, breached this order of court.
[19]
The sentiments expressed by the court
a
quo
which are cited above have been
rightly described by Alan Rycroft as a “…significant
moment of judicial resolve”.
(
Rycroft,
A “
Being held in Contempt for
non-compliance with a court interdict: In2food (Pty) Ltd v FAWU
”
(2013) 34 ILJ 2499). Indeed, the sentiments deserve endorsement, and
are adopted by this Court. Nevertheless, on the facts
of this matter,
the appellant has not been shown to have breached the order.
The
costs
[20]
Having regard to the overall equitable
considerations relevant to the regulation of the relationship between
the parties, it is
appropriate that this appeal should not attract a
costs order.
The
order
a)
The appeal is upheld.
b)
The whole of the order granted by the court
a quo
is
set aside.
c)
There shall be no costs order in either the
court
a quo
or in the appeal.
______________
Sutherland
AJA
I agree
_____________
Tlaletsi
DJP
______________
Coppin
AJA
APPEARANCES:
FOR
APPELLANT:
Adv JG Van der Riet SC
Instructed
by Cheadle Thompson Haysom Inc
K
Naidoo
FOR RESPONDENT:
Adv WP Bekker
Instructed
by Duvenhage Attorneys
M
F Duvenhage