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[2018] ZALAC 28
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Association of Mineworkers and Construction and Others v KPMM Road and Earthworks (Pty) Ltd (JA 147/2017) [2018] ZALAC 28; (2019) 40 ILJ 297 (LAC); [2019] 4 BLLR 340 (LAC) (31 October 2018)
IN THE LABOUR
APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case no: JA 147/2017
In the matter between:
ASSOCIATION OF MINEWORKERS AND
CONSTRUCTION
First
Appellant
INDIVIDUALS SET OUT IN ANNEXURE
“FA1” Second
Appellant
and
KPMM ROAD AND EARTHWORKS (PTY)
LTD Respondent
Heard: 25 September 2018
Delivered: 31 October 2018
Summary: Contempt of court of order
against both employees and union- employer failing to prove that
employees making common purpose
with those committing misconduct-
doctrine of common purpose restated – in respect of union,
court restating requirements
for contempt application- court finding
that order of the Labour Court unclear so as to enable union to know
what is expected of
it. Held that if an employer wishes to obtain
relief against a union in circumstances similar to that of the
present dispute, it
behoves its legal advisers to draft a notice of
motion which gives clear content to the obligations which it wishes
to impose upon
the union. Appeal upheld Labour Court’s judgment
set aside.
Coram: Waglay JP, Davis and
Sutherland JJA
JUDGMENT
DAVIS JA
Introduction
[1]
This
case concerns important implications for the use of contempt
proceedings in the fraught context of South African industrial
relations. The appeal before this Court is against an order of the
court
a
quo
in which the first appellant and the second to further appellants
(“the individual appellants”) were held to be in
contempt
of an order of Lagrange J of 18 July 2016 and in terms of which first
appellant was ordered to pay a fine of R 1 000 000.00
which
payment was suspended for three years on condition that the first
appellant was not held by the Labour Court to be in contempt
of any
order of the Labour Court during such period. The individual
appellants were ordered to pay a fine of R 1000 each, which
amounts
were immediately payable and could be deducted from their salaries.
[2]
The
material facts are largely common cause. Certain of the respondent’s
employees embarked on a protected strike on 15 July
2016. According
to respondent, a version which is denied by appellants, on 14 July
2016 the individual appellants intimidated non-unionised
employees.
On 15 July 2016, the individual appellants engaged in various
unlawful acts, including breaching the parameter of respondent’s
site in an attempt to remove non-striking employees blockading a
section of the highway, preventing non-striking employees and
the
respondent’s subcontractor’s employees from attending
work and intimidating non-striking employees.
[3]
On 15
July 2016, respondent’s attorneys addressed a letter to
appellant’s attorneys in which it was alleged that first
appellant’s members had engaged in these unlawful acts, to
which the reply came that first appellant had found them to be
without merit and therefore it denied the allegations. On 15 July,
first appellant provided respondent’s attorneys with an
undertaking that it would take reasonable steps to ensure that,
during the course of the strike, its members would conduct themselves
in a peaceful manner and refrain from any acts of violence and/or
intimidation and misconduct. According to the letter, “a
representative of our client (first appellant) has again this
afternoon addressed those members who were on strike and conveyed
the
content of the above undertaking to said members.”
[4]
In
terms of the founding affidavit, respondent averred that,
notwithstanding this undertaking, acts of intimidation and threats
continued both towards respondent’s non-unionised employees and
the employees of various subcontractors. Further incidents
then
occurred on 15, 16 and 17 July 2016.
[5]
Pursuant
thereto respondent’s launched an urgent application in the
Labour Court. On 18 July 2016, the Labour Court handed
down an order
in the following terms:
‘
2.1
Interdicting the second to further respondents from obstructing
access along the applicant site, which is made up of the portion
of
the N11 spanning approximately 27.5 kilometres, commencing
approximately 26.5 kilometres from Middelburg and ending
approximately
54 kilometres from Middelburg (‘the Site’);
2.2
Interdicting the second to further respondent from obstructing and
preventing any employees’ access to the site (including
the
applicant’s employees and/or employees of any of the
applicant’s sub-contractors);
2.3
Interdicting the second to further respondents from threatening,
intimidating, harming or assaulting any employees employed
or engaged
at the site (including the applicant’s employees and/or
employees of any of the applicant’s sub-contractors);
2.4
Interdicting the second to further respondents from threatening,
intimidating, harming or assaulting any persons utilising the
road
located at the site;
2.5
interdicting the second to further respondents from intimidating
subcontractors’ employees employed or engaged at the
site
(including the applicant’s employees and/or employees of any of
the applicant’s sub-contractors;
2.6
Interdicting the second to further respondents from assembling or
congregating within 2000 metres of the site in furtherance
of the
strike (or such other distance as this Honourable Court deems fit)
2.7
Directing the first respondent to take all reasonable steps within
its power to persuade the second to further respondents not
to engage
in unlawful action associated with the strike…’
[6]
On
respondent’s version, various incidents of unlawful conduct and
the intimidation continued to occur, notwithstanding this
order.
According to the answering affidavit, a memorandum of understanding
was signed on 19 July 2016 between first appellant and
five
subcontractors to respondent confirming that no acts of intimidation
or violence had been committed by first appellant or
its members
against these contractors after the first appellant had provided the
respondent with the undertaking on 15 July 2016.
On 19 July 2016, Mr
Mahlomuz, the regional organiser of first appellant in Mpumalanga
attended at the site office and communicated
the terms of the court
order to first appellant’s members. He informed them that in
terms of the order, individual employees
were interdicted from
assembling or congregating within 2000 metres of the respondent’s
site in furtherance of the strike.
He stated that, as a result of his
intervention, the employees vacated the site and congregated at the
local ground, “which
is well outside the 2000 metres
parameter”. He also confirmed that meetings were held on a
daily basis at the local grounds
where the individual appellants were
informed by the first appellant and their shop stewards of the status
of the strike and the
need to comply with the court order. On 20 July
2016, respondent’s attorneys sent further letters to first
appellant’s
attorneys alleging that there was a continuation of
the breach of the court order by first appellant’s members.
[7]
According
to certain of the subcontractors’ affidavits, the intimidation
ceased on 20 July 2016, by which time many of first
appellant’s
members had returned to work. On 25 July 2016, the strike was
temporarily suspended.
[8]
On 01
August 2016, respondent launched an
ex
parte
contempt application which was set down for hearing on 12 August
2016. It cited 56 individual appellants as respondents in this
application. On 12 August 2016, Whitcher J granted an
ex
parte
order in terms of which the appellants were required to show cause
why they should not be found guilty of contempt of court for
failing
to comply with the interim order. On the return day of 11 November
2016, the court
a
quo
heard argument as to whether the interim order should be confirmed.
Pursuant thereto, it found both first appellant and the individual
appellants to be in contempt of the order of 18 July 2016 and ordered
the appellants to be fined as indicated above.
The appeal
[9]
On
appeal, two separate issues were raised, namely whether the
individual appellants were guilty of contempt and whether the first
appellant could be found to be guilty of contempt. In respect of the
former, the court
a
quo
applied the principles of common purpose to determine the guilt of
the individual appellants. Sitting in the court
a
quo
,
Snyman AJ said the following in his judgment:
‘
Where
a group of striking employees continue with unlawful conduct in the
face of an interdict and order of this Court, it can be
said that,
even if contempt of Court is regarded as criminal behaviour, that
these employees continue to act with a common purpose.
It
is not necessary for an employer to establish a nexus between each
individual employee sought to be held in contempt of Court,
and the
misconduct or unlawful conduct perpetrated. Neither is it
necessary to identify every individual perpetrator. These
employees
continue to act for a common purpose, in support of the exercise of
their right to strike.
’
[10]
When
the matter was argued before this Court, on appeal, Mr Watt-Pringle,
who appeared together with Ms Darby on behalf of respondent,
conceded
that there was no basis by which to hold the individual appellants
guilty on the basis of the common purpose doctrine.
In the first
place, there was no mention in the founding papers of individual
employees being alleged to be in contempt on the
basis of common
purpose. Respondent was unable to identify which of the individual
employees were guilty of contempt. In short,
the concession was made
that the evidence could not justify the application of the common
purpose doctrine.
[11]
In
Makhubela
v S,
[1]
,
the Constitutional Court set out a series of requirements which are
necessary to justify the application of the doctrine of common
purpose. In the first place, it must be shown that the individual was
present at the scene where the violence was committed. That
individual must have been aware of the assault on the victim. The
individual must have intended to have made common cause with
those
who actually perpetrated the assault, that is he/she must have
manifested some common purpose with the perpetrators of the
assault
by himself or herself performing some act of association with the
conduct of the others. Finally, the individual must have
possessed
the requisite
mens
rea
.
[12]
In
this case, on these papers, none of the individual appellants, with
the exception of two, were even placed at the scene of the
incidents
giving rise to the alleged contempt. No evidence was produced that
these individual appellants were aware of the alleged
incidents,
giving rise to the alleged contempt or that they had manifested
common cause with those allegedly breaching the court
order. There
was certainly no evidence which justified a finding of
mens
rea
.
Significantly, two persons identified Kenneth Masenya and Sophia Utla
were not listed as amongst the second and further appellants
and the
list of names annexed to the court order, nor were they identified by
the respondent as members of the first appellant.
In none of the
incidents set out by the respondent in its founding affidavit are the
individual appellants identified as having
participated or having
been aware of these various incidents.
[13]
In
short, the finding of the court
a
quo
that the common purpose doctrine applied, in this case, is in clear
breach of the established principles of common purpose and,
accordingly, there was no legal basis by which the court
a
quo
could have come to its finding with regard to these appellants. It is
for this reason that the concession made by Mr Watt-Pringle
was a
wise one in the circumstances.
[14]
I
turn then to deal with the finding in respect of the first appellant.
The central finding of the court
a
quo
against first appellant is encapsulated in the following passage from
the judgment:
‘
I
am satisfied that in reality, all the first respondent did was to
convey the order to its members, tell them to comply, and then
washed
its hands of what may happen thereafter. This is evident from
the attitude and approach adopted by the first respondent
in the
answering affidavit which in essence seeks to place blame on the
applicant for trying to protect its business and non-striking
employees with a request for punitive costs and accepting no
responsibility, and also seeking justification on the basis of
contending
that it must be remembered that the strike was protected.
In short, the attitude of the first respondent was that of what
was
taking place was the applicant’s problem.
’
[15]
In a
similar fashion to this approach, Mr Watt-Pringle submitted on appeal
that first appellant should, at the very least, have
investigated the
alleged misconduct of its members and, having established the facts,
devised appropriate steps to deal with the
problem. If the
allegations were found to be true, then first appellant ought
reasonably to have appointed marshals to monitor
the conduct of its
members so that it could react appropriately to the facts that it had
established. The principles of the procedure
for civil contempt are
well established, having been set out luminously by Cameron JA in
Fakie
v CCII Systems (Pty) Ltd
[2006] ZASCA 52
;
2006 (4) SA 326
(SCA) at para 42. The applicant is required to prove
three requisites for the grant of the order, namely service or notice
of the
order, noncompliance and wilfulness and
mala
fides
in respect of this noncompliance. Having proved these requisites,
Cameron JA stated:
‘
once
the applicant had proved the order, service or notice, and
non-compliance, the respondent bears an evidential burden in relation
to wilfulness and mala fides: Should the respondent fail to
advance evidence that establishes a reasonable doubt as to whether
non-compliance was wilful and mala fide, contempt will have been
established beyond reasonable doubt.’
[16]
The
test of beyond reasonable doubt is important. As the Constitutional
Court said in
Matjhabeng
Local Municipality v Eskom Holding Limited and Others:
[2]
‘
The
civil contempt remedies of committal or a fine have material
consequences on an individual’s freedom and security of the
person. However, it is necessary in some instances
because disregard of a court order not only deprives the other party
of the benefit of the order but also impairs the effective
administration of justice. There, the civil standard of proof
beyond reasonable doubt – applies always.’
[17]
In
this case, respondent contends, in line with the judgment of the
court
a
quo,
that more was required of first appellant than the convening of
meetings where members were informed of the implications of a court
order. To that, as Mr Boda who appeared together with Ms Collet on
behalf of the appellant noted, the first appellant had shown
in its
answering affidavit that it had gone further and ensured that its
members would not congregate within the 2000 metres parameter.
There
is, therefore, a dispute as to what constitutes the taking of “‘all
reasonable steps within its power to persuade”.
Significantly,
both the court
a
quo
and Mr Watt-Pringle sought to give these words an expansive
interpretation. In short, respondent associated itself with the
findings
of the court
a
quo
,
that what the order envisaged was a continuous marshalling of the
striking employees and having the responsible union officials
continuously present “on the ground” to deal with
instances of a violation of the order. Furthermore, the employer
should be kept “constantly appraised of the efforts” of
first appellant.
[18]
The
very nature of these submissions indicates the core of the problem:
the wording of paragraph 2.7 of the order is too vague.
The words
thereof were open to a different interpretation which is evident from
the competing versions set out in the founding
and answering
affidavits. To contend, on the basis of such an open-textured order,
that the respondent had proved beyond a reasonable
doubt that the
first appellant had the requisite wilfulness or that it exhibited
mala
fides
which would justify such a finding of wilfulness and
mala
fides
(even though there is an evidential burden on the first appellant)
cannot be upheld in these circumstances.
[19]
This
finding should not be interpreted as giving succour to any form of
conduct by union members or other employees which constitutes
violence, intimidation or other unlawful behaviour pursuant to a
strike. The very purpose of the LRA is to ensure that industrial
conflict is regulated within the parameters of law, which manifestly
includes a punctilious adherence to the criminal law. However,
if an
employer wishes to obtain relief against a union in circumstances
similar to that of the present dispute, it behoves its
legal advisers
to draft a notice of motion which gives clear content to the
obligations which it wishes to impose upon the union.
[20]
It
may well be that the obligations which the court
a
quo
sought to read into the generalised formulation of para 2.7 of the
order could constitute the kind of guidance which is required
in a
suitable order. Once the notice of motion is so drafted, it is
possible for the union to argue what it may be able to do in
the
circumstances of the industrial dispute and for the court effectively
to engage in a dialogue with the parties in order to
craft an order
whereby the obligations imposed upon the union are clear to all
concerned. This did not happen in this case and,
accordingly, the
court
a
quo
erred in finding that the first appellant exhibited the requisite
wilfulness and
mala
fides
to justify the order it granted.
[21]
In
the circumstances, the appeal is upheld, including the costs of two
counsel and the order of the Labour Court is altered to read:
‘
The
application is dismissed with costs
.’
D Davis
Judge of Appeal
I
agree
B Waglay
Judge
President
I
agree
R Sutherland
Judge of Appeal
APPEARANCES:
FOR
THE APPELLANT: Adv
F Boda SC and Adv
S Collet
Instructed
by Larry Dave Attorneys
FOR
RESPONDENT:
Adv C
Watt-Pringle
SC and Adv F Darby
Instructed
by Knowles Husain Lindsay Attorneys
[1]
2017 (12) BCLR
1510
(CC).
[2]
2017 (11) BCLR
1408
(CC) at para 67.