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[2008] ZALCJHB 92
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Xstrata Coal SA (Pty) Ltd v National Union of Mineworkers and Others (J2286/08) [2008] ZALCJHB 92 (20 November 2008)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT JOHANNESBURG
CASE
NUMBER: J2286/08
In
the matter between:
XSTRATA
COAL SA (PTY) LTD
Applicant
and
NATIONAL
UNION OF MINEWORKERS
First
Respondent
PERSONS
LISTED IN ANNEXURE A
TO
THE NOTICE OF MOTION
Second to Further Respondents
JUDGEMENT
NGALWANA
AJ
Introduction
[1]
This is an extended return day in an application for all three forms
of interdict known to man. The applicant seeks confirmation
of
a rule nisi issued by this Court on 27 October 2008. The rule
was returnable on 28 November 2008 but the respondents anticipated
that day on 14 November 2008. On the latter date judgment was
reserved and the rule consequentially extended to Monday 17
November
2008. On that date the rule was further extended until 20
November 2008 owing to some administrative confusion.
[2]
The applicant seeks confirmation of the rule nisi in relation to
[2.1]
a declaratory interdict that the conduct of certain named members of
the first respondent constitutes an
unprotected strike in breach of
the requirements of
section 64
of the
Labour Relations Act, 66 of
1995
;
[2.2]
a prohibitory interdict restraining those named respondents from
breaching their contracts of employment
and provisions of the
collective agreement, and restraining the first respondent from
inciting and supporting an unprotected strike
by its members;
[2.3]
a mandatory interdict directing the named respondents to comply with
their employment contracts and collective
agreements, and directing
the first respondent to intervene with a view to ensuring that its
members comply with the requirements
of the
Labour Relations Act as
regards strike action, on the one hand, and the terms and conditions
of their employment contracts and collective agreements on
the other.
[3]
The respondents oppose confirmation of the rule nisi.
Common
Cause Facts
[4]
The following facts are common cause.
[5]
On 15 October 2008 representatives of the first respondent and a
number of the named respondents delivered a memorandum of nine
grievances and demands to the management of the applicant. The
grievances ranged from allegations that the applicant does
not comply
with its own procedures, on the one hand, to white workers being paid
higher salaries than black workers at the same
level on the other.
All the issues raised in the memorandum are matters of mutual
interest
[6]
The following day, on 16 October 2008, the ninth respondent (MP
Medupe) who is one of the dump truck drivers was given a warning
by a
traffic officer in the applicant’s employ for driving in excess
of the required speed limit. He was driving in
excess of 60km/h
in a 40km/h zone.
[7]
From 17 October 2008 to date Mr Medupe and 85 other drivers have been
driving at markedly reduced speeds despite the interim
order granted
on 27 October 2008.
[8]
As a result of the reduced speeds, the applicant’s production
levels at ATCOM open cast mine have reduced by up to 62%.
[9]
The applicant is a coal producing and exporting entity in competition
with local and international coal mining companies.
The bulk of
its production is exported and its major customers are offshore
companies.
[10]
The applicant’s ATCOM mine is contracted to supply
[10.1]
1.5 million tons of coal per year to Total Coal SA (Pty) Ltd;
[10.2] 1.5 million
tons of coal per year to a Spanish energy utility; and
[10.3]
1 million tons of coal per annum to an Italian energy utility.
[11]
Failure by the applicant’s ATCOM mine to supply these amounts
of coal impact negatively not only on the applicant’s
business
but also that of the customers.
[12]
The second to further respondents are all employed at the applicant’s
ATCOM mine.
The
Dispute
[13]
While the applicant avers that the reduction in production levels is
attributable solely to a go-slow embarked upon by the
second to
further respondents and supported by the first respondent, the
respondents aver that these production levels reduced
inevitably when
one of their own (Medupe) was warned by a traffic officer for driving
in excess of the required speed limit.
[14]
The respondents’ version is in my view far-fetched and cannot
reasonably be believed. It is too much of a co-incidence
for a
memorandum of grievances and demands to be delivered to management on
15 October 2008 only for production levels to reduce
by up to 62%
hardly two days later as a result of wide-spread reduction in the
pace of work.
[15]
There is no dispute that there is no pattern of speeding at the
applicant’s ATCOM mine. There is also no dispute
that the
warning issued to Medupe was not the first to truck drivers in the
mine, and that there have been nine such warnings since
April 2008.
None of those warnings resulted in a dramatic reduction in
production levels and marked reduction in speed levels.
Mr
Maimane for the respondents could not explain this seeming
co-incidence that a speeding warning to one driver following a
memorandum
of demands to management should now result in safety
concerns giving rise to general speed reduction when no such concerns
and
resultant speed reduction followed nine other previous warnings.
[16]
That the respondents are engaged in unprotected strike action is
beyond question on the facts of this case. The dispute
that the
respondents seek to generate as regards the real cause of the
reduction in production levels is simply spurious and does
not
warrant serious consideration even though I have carefully considered
its veracity.
Finding
[17]
In the circumstances, the rule nisi is confirmed with costs,
excluding the wasted costs of Monday 17 November 2008.
____________________
Ngalwana
AJ
Appearances
For
the applicant:
Mr GA Fourie
Instructed
by:
Perrott Van Niekerk Woodhouse
For
the respondents:
Mr Maimane
Instructed
by:
KD Maimane Inc
Date
of hearing:
14
November 2008
Date
of judgment:
20 November 2008