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[2008] ZALCCT 7
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Southernwind Shipyard (Pty) Ltd v NUMSA and Others (C700/2008) [2008] ZALCCT 7 (7 November 2008)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT CAPE TOWN
Case
No: C700/2008
REPORTABLE
In
the matter between:
SOUTHERNWIND
SHIPYARD (PTY) LTD
Applicant
and
NUMSA
First Respondent
B
JACOBS & 173 OTHERS
Second
to 174
th
Respondent
(Those
names are listed in annexure
“
A”
to the Founding Affidavit
)
JUDGMENT
MOSHOANA
AJ
INTRODUCTION
[1]
On 24 October 2008 I issued the following order:-
1.
Having heard the parties and considered the
papers, I hereby make the following order, which shall be supported
by reasons to be
filed in due course:
1.1
The
rule nisi
issued on 26 September 2008 is hereby
discharged with costs.
[2]
What follows hereunder shall be the reasons for such an order.
BACKGROUND
FACTS
[3]
On 30 May 2008, the Applicant brought an application on an urgent
basis. Basson J issued a
rule nisi,
which was returnable on 13
June
2008
temporarily interdicting the Respondents from participating in the
strike or any conduct in contemplation or in furtherance
thereof
pending the return day of the
rule nisi
. The Respondent
opposed the application on the return day and a temporary interdict
was extended by agreement to 20 June 2008.
On that day the matter was
heard by Nel AJ, who at the conclusion of argument, reserved judgment
and
further extended the interdict until the date
of his final order. On 19 September 2008, Nel AJ issued an order in
the main application
in which he discharged the rule and ordered the
Applicant to pay the Respondent’s costs of suite. At the time
of issuing
the order, Nel AJ did not furnish reasons for the said
order.
[4]
On 23 September 2008 at 16H38 the First Respondent gave the Applicant
a written notice that it will start its strike action
on Monday 29
September 2008.
[5]
On 25 September 2008, the Applicant’s Attorneys of record
responded to the Notice of Intention to Strike by sending a
letter
informing the Respondents that the Applicant had instructed them to
apply for Leave to Appeal against Nel AJ’s order,
but they were
not able to do so in the absence of his reasons for the order. The
Applicant’s Attorneys then requested the
First Respondent to
agree to the continued existence of the interdict granted on the 30
May 2008, pending the determination of
the appeal. The First
Respondent refused to give such a consent.
[6]
In anticipation that the strike would commence on Monday 29 September
2008, Applicant instituted the present application as
a
matter
of urgency on the morning of Friday, 26 September 2008 and enrolled
it for hearing at 14H15 that afternoon. It had served
the Respondents
with the said papers at about 07H59, 08H19 and 19H20 respectively.
[7]
In the present application, the Applicants on 26 September 2008
sought the following order:-
1.
That the
rule
nisi
do issue calling 1 - 174th
Respondents to show cause, if any, on a date and at a time still to
be determined, why an order should
not be granted in the following
terms:-
1.1
Reviving the
rule
nisi
issued on 30 May 2008 in
Application proceedings between the above parties under Case
Number: C340/08 in this Honourable Court (the first
application),
which
rule nisi
was discharged by the Honourable
Mr Acting Justice Nel in an order contained in his judgment in the
first application dated 19 September
2008;
1.2
Ordering that the provisions of the said rule shall operate as an
interim order and
interdict pending the final determination of:-
1.2.1
Applications to be timeously instituted by the Applicant interms of
Section 166
of the
Labour Relations Act No.66of 1995
, in the Labour
Court (and, if still necessarythereafter in the Labour Appeal Court)
for leave to appeal against the aforesaid order
discharging the said
rule nisi
and;
1.2.2
In the event of leave to appeal been granted an appeal to
the
Labour Appeal Court to be timeously instituted by the Applicant,
against the aforesaid order discharging the said rule.
1.3
Ordering that the costs of this application shall stand over for
later determination in the aforesaid
applications for leave to appeal
alternatively the aforesaid appeal.
2.
Further or alternative relief.
[8]
On 26 September 2008, Acting Justice Cele issued an order that the
draft order as amended was made an order of court. The said
draft
order read as follows:-
1.
A
rule nisi
is hereby issued calling upon 1
st
– 174
th
Respondents to show
cause, if any, on 24 October 2008 why an order should not be granted
in the following terms:-
1.1
Reviving the
rule
nisi
issued on 30 May 2008 in
application proceedings
between the above parties under Case Number: C340/08 in this
Honourable Court (the first application),
1.2
Ordering that the provisions of the said
rule nisi
shall operate as an interim order and interdict pending:-
1.2.1
The final determination of applications in
terms of
Section 166
of the
Labour
Relations Act No.66 of 1995
to be timeously instituted by the
Applicant in the Labour Court and if necessary, in the Labour Appeal
Court, for leave to appeal
against the order (contained in the
judgment of the Honourable Mr Acting Justice Nel dated 19
September 2008 in the
first application) discharging the said
rule nisi and;
1.2.2
In the event of such leave to appeal been
granted,
the final determination
of such appeal to the Labour Appeal Court same to be timeously
instituted by the Applicant.
2. The
provisions of paragraphs 1.1 and 1.2 above shall operate
as an interim order and
interdict pending the return date of the
rule
nisi
as aforesaid.
3.
Service of this order upon the Respondents
shall take place asfollows:-
3.1
By telefaxing one copy of this order to
First Respondent
on its fax number: (021) 945- 1796 or by
delivering a copy thereof to an official of the First Respondent at
its offices at Harry
Gwala House, 61–64 Voortrekker Road,
Bellville;
3.2
By posting one copy of this order on each
of the four
official notice boards of the Applicant at its
factory premises at Rian Avenue, Athlone Industria 1, Cape Town.
4.
The Respondents are granted leave to
anticipate the return day
of the
rule nisi
on 48 hours notice to the Applicant.
5.
Should the Respondents intend to oppose the
application, they
are
required to file the following documents:-
5.1
A notice of their intention to oppose the
matter containing
an address at which they will accept notices
and service of all documents in this application;
5.2
An answering affidavit within ten days
after the service of this order upon them;
5.3
A list of documents that are material and
relevant to the application.
[9]
As ordered, the Respondents filed the necessary papers opposing the
application. Meanwhile on 26 September 2008, between 10H15
and 10H51
that morning, the employees had commenced the strike action.
[10]
On 02 October 2008 Nel AJ furnished reasons of his order in a
detailed judgment. On 17 October 2008, the Applicant filed with
the
Registrar a Notice of Application for Leave to Appeal in terms of
Rule 30.
On 22 October 2008, Nel AJ, in terms of
Rule 30
(3)(A)
directed the Respondent in the application for leave to appeal to
file its submissions, if any, on or before 30 October
2008 and that
the Applicant must file any reply on or about 04 November 2008. It is
apparent that Nel AJ indicated that he was
available to hear argument
in the application for leave to appeal on 06 November 2008 if a court
is available.
[11]
On the return date 24 October 2008, the matter came before me for
either to confirm the rule or discharge it.
ARGUMENT
[12]
In court, Advocate Van der Riet SC appearing for the Respondents
contended that I should discharge the rule. He contended that
the
Applicant needed to show that it will be successful on appeal and it
needed to prove that the balance of convenience favours
it. He
further contented that the balance of convenience actually favours
the Respondents, in that they needed to engage in a strike
for it to
be meaningful and achieve the purpose of which it was intended
(whilst the iron is still hot). He further argued that
what the
Respondents are demanding is not what is dealt with in the Main
Agreement. In short, he stated that the demand of the
Respondents was
for the Applicant to grant all the hourly paid employees the same
bonuses which had been granted to the supervisors.
This is confirmed
by the letter dated 14 April 2008, signed by a Union Official. He
submitted that the Applicant had not actually
negotiated the issue of
the bonus with the supervisors. He submitted that what had actually
happened was that for some unknown
reasons, the General Manger of the
Applicant promised the supervisors some bonuses if they successfully
launched the Yacht 1006.
This is supported by a letter dated 18 March
2008, by General Manager, which in parts reads as follows:-
“
Due
to the successful launch of the Yacht 1006 I am granting you the
bonus I said I would. Not only is the bonus a
demonstration
of my word
but is an
appreciation of the hard work and effort you have displayed in
meeting the completion dates”. (
My
emphasis).
[13]
On the other hand, Advocate Growe SC for the Applicant contended,
after having filed lengthy Heads of Argument, that the application
should be treated the same way as an application for leave to
execute. He contented that the Applicant has met all the requirements
for such an application and that the court must then confirm the
rule. In the main, he argued that there are prospects of success
in
appealing the order made by Nel AJ. He pointed out parts of the
judgment which in his belief, Nel AJ erred and on that basis
the rule
should be confirmed. In particular he stood firm on his argument that
the demand was for negotiations of the bonus, which
is dealt with in
the Main Agreement, accordingly the strike is unprotected as the
issue in dispute is one to be dealt with in terms
of the Main
Agreement.
[14]
He referred the court to an award of a Bargaining Council, which, in
his submissions, contradicts the judgment by Nel AJ, on
what he
contended to be similar points. He further contended that in holding
that the Applicant had not complied with the provisions
of
Section
68(2)
of the
Labour Relations Act, Nel
AJ was in clear error. He
submitted that the issue, whether the provisions of
Section 68(2)
were met, was a discretion to be exercised by the
court of the first instance, in this regard, referring to when Basson
J heard
the matter. She had exercised her discretion in hearing the
application and therefore it was not open for Nel AJ to reconsider
the issue, so the argument went. He contended that on that aspect
alone the judgment of Nel AJ is bound to be overturned on appeal,
therefore there exists prospects of success and accordingly the rule
should be confirmed.
ANALYISIS
[15]
In this matter, what is common cause is that the
rule nisi
of
30 May 2008 was discharged. The question then becomes whether this
Court can revive that rule? In answering that question, it
is
apposite to quote what the Learned Author Erasmus on Supreme Court
Practice has said:-
“
The
noting of an appeal against the refusal of a final order where
interim interdictory relief was granted (but the final relief
refused) that does not revive the interim order unless the parties
have specifically agreed to the continued existence of the interdict
pending an appeal. A party who desires further protection by way of
interdict pending the determination of the appeal could also
make
application for the renewal of the interdict. Where an interim order
is not confirmed,
irrespective of the wording used, the
application is effectively dismissed. There is accordingly no order
that can be revived by
the noting of the appeal and there is nothing
that can be suspended. Interdicts, which endure until a specified
event, fall away
on the happening of the event. Should an appeal be
noted against the decision which formed the conditional event, the
interdict
does not remain operative nor does it revive. Where
application for leave to appeal was delivered against an order
setting aside
an order which was granted in an ex-parte application
for attachment to found or confirm jurisdiction, the court held that
the
ex-parte attachment order was ex lege the uniform rules of
limited duration pending the determination of the application to have
it set aside. Once set aside, a notice of appeal could not have a
positive effect of creating an order, which did not exist. It
therefore does not revive or perpetuate the order discharged or set
aside. An appeal in a Criminal matter does not suspend the
conviction
and sentence or the civil consequences of a conviction such as
disqualification to act as a Director or in certain elective
offices”.
[16]
Effectively what the Learned Author is saying is that an Applicant,
such as the one before me, has two options. The first option
is to
seek an agreement to have the interdict issued
earlier to continue to exist. The second option is to bring another
application for
an interdict, I may add, which ought to be considered
on its own merits, whether the court should grant or refuse it.
[17]
In this matter, it is common cause that the Applicant attempted the
first option but it failed. It therefore follows that what
was then
left for it to do was to obtain a further interdict, hence this
application. I need to comment at this stage and say:
when an
Applicant who brings an application for an interim relief pending the
determination of an application for leave to appeal
or the appeal
itself, the factors would be those which a court would consider when
granting an interim interdict. Such factors
are well known, but most
importantly the Applicant need to show a
prima facie
right. I
do not agree with Advocate Growe SC when he submitted that this
application should be treated like an application for
leave to
execute. On the contrary in an application for leave to execute there
must have been a positive order that is executable.
Where a rule had
been discharged, there exists no order and it is as good as nothing
has happened.
[18]
In the matter of
MV Snow Delta:Serva Ship Ltd V Discount Tonnage
Ltd
2000 (4) SA 746
at 751 – 752
Harmse JA had the
following to say:-
“
It
is convenient at the outset to say something about the judgment of
Selikowitz J. The ratio of the decision was based on
SAB
Lines (Pty) Ltd v Cape Tex Engineering Works (Pty) Ltd
1968 (2) SA
535
(C
), where Corbett J had
held that the granting of interim relief as an adjunct to a rule nisi
is to provide protection to a litigant
pending a full investigation
of the matter by the court of the first instance. Once that interim
order is discharged it cannot
be revived by the noting of an appeal.
This approach was and still is generally accepted as correct.
Dissenting views were, however,
expressed in
Du
Randt v Du Randt
1992 (3) SA 281
(E)
and
Interkaap Ferreira Busdiens
(Pty) Ltd v Chairman National Transport Commission, and Others
1997
(4) SA 687
(T).
The essence of
these judgments was that Corbett J had failed to have regard to the
common law rule as received by our courts that
an appeal suspends the
execution or, in other words of
Rule 49
(11), the operation and
execution of an order (
cf Reid
and Another v Godart and Another
1938 AD 511
).
Unfortunately, the criticism was based upon a misunderstanding of the
concept of suspension of execution. For instance, an order
of
absolution from the instance or dismissal of a claim or the
application is not
suspended pending an appeal, simply
because there is nothing that can operate or upon which execution can
be levied. Where an interim
order is not confirmed, irrespective of
the wording use, the application is effectively dismissed and there
is likewise nothing
that can be suspended. An interim order has no
independent existence but is conditional upon confirmation by the
same court (albeit
not the same judge) in the same proceedings after
having heard the other side”.
[19]
He went further to say:-
“
Any
other conclusion gives rise to an unacceptable anomaly. If an
Applicant applies for an interim order with notice and the
application is dismissed, he has no order pending the appeal; on the
other hand the Applicant who applies without
notice and obtains an ex-parte order coupled with a rule nisi
and
whose application is eventually dismissed, has an order pending the
appeal”.
[20]
I am in full agreement with the sentiments expressed in that
judgment.
[21]
In
Ismail v Keshavjee
1957 (1) TPD 684
, Dowling J at page 688
A said the following:-
“
It
seems to me that if a litigant desires further protection by way of
interdict pending the determination of an appeal he must
make
application therefore. The court, in the light of the full knowledge
of the facts brought to light at the trial may or may
not renew the
interdict. In my opinion the noting of an appeal does not
automatically revive an interdict granted pendete lite”.
[22]
From the authorities reviewed above, it is very clear that once an
interim interdict is discharged same is gone and cannot
be revived,
except by agreement or through making a fresh application.
[23]
What was strange for the Court in respect of the interim order that
was granted on 26 September 2008 was that it sought to
revive the
interim interdict, which on proper consideration of the authorities
cited above, such an order could not be revived.
The true position,
therefore is that an Applicant, if it seeks further protection has to
bring a fresh application which sets out
the basis upon which the
court should grant a temporary interdict. In this matter, it is clear
to me that the demand of the Respondents
is not one that is dealt
with in the Main Agreement. It therefore follows that this Court
cannot interdict a strike that complies
with the provisions of the
Act. It does seem that the only basis upon which the Applicant
contends that the strike is
unprotected is that
the provisions of
Section 65(1)(a)
, which provides that no person may
take part in a strike or a lock-out or in any conduct in
contemplation or furtherance of a strike
or a lock-out if that person
is bound by a Collective Agreement that prohibits a strike or
lock-out in respect of the issue in
dispute, has been offended.
[24]
In my judgment, the issue in dispute, being the demand that they be
paid the same the bonus, is not regulated by the Main Agreement,
it
does not prohibit any strike on the demand. It does appear that the
General Manager of the Applicant took a cavalier approach
in
promising only the supervisors the bonus for the successful launch of
Yacht 1006. If one has careful regard to this, the supervisors
would
ordinarily be supervising employees and I assume for the purposes of
this judgment that those employees should be the hourly
paid
employees. The First Respondent is demanding that those employees be
paid the same bonus. They definitely have contributed
towards the
successful launch of the Yacht 1006. It seems to me that in fairness,
there exists no basis upon which they should
not be paid the same
bonuses. It ought to be considered that the demand of the Respondents
is that they be paid the same bonuses.
That does not prevent the
Applicant, if it wishes to avert the strike or the continuation
thereof, to propose that payment of the
bonus be made t
o
them but not the same amount as that of the supervisors. I mention
this point simply because Advocate Groewe SC submitted that
if the
application is not granted the Applicant stand to loose about R1 700
000.00 (On Million Seven Hundred Thousand Rand). This,
taking into
consideration that in the nature of strikes, demands are met but more
often than not, not all. It would be unrealistic
to say that the
Applicant in fact is likely to suffer harm of paying R1 700 000.00.
On the other hand the Applicant could negotiate
with the Respondents
to a point where they understand the basis upon which the
differentiation came about and they may jettison
their demand. All of
these are not impossible. These are the considerations that I applied
my mind to in refusing to confirm the
rule. This is so despite my
misgivings around the question whether an interim interdict may be
revived or not.
[25]
The Applicant’s Representative placed much emphasis on the fact
that in terms of
Section 68(2)
, Nel AJ was wrong in finding that he
can refuse to grant an order in terms of that provision. He argued
that the judgment is ignorant
of the fact that the subsection
provides that the court may permit a shorter period of notice if
certain requirements are satisfied.
I do not intend to decide this
issue contrary to what Nel AJ has said, however I have the following
to say. In my view it is incumbent
for the court on the return day to
still satisfy itself whether
the requirements of
Section 68(2)
are met. This is so if regard is had to the plain
wording used in the subsection which is:-
“
The
Labour Court
may not
grant
any order in terms of subsection (a) unless 48 hours of the
application has been given to the
Respondent”.
[26]
It is clear that reference being made to any order, it includes the
one contemplated in subsection 1(a), which is amongst others
to grant
an interdict or to restrain. It does not really matter whether on
interim or on a final basis. Again the section is clear,
it is that
the Labour Court and not the Labour Court sitting at a particular
stage. This in my view requires the Labour Court,
at any stage,
before granting an order to exercise its discretion whether it should
permit less than 48 hours. Exercise of that
discretion, would depend
upon whether on the facts the requirements in (a) – (c) are
met.
[27]
It is indeed correct what Brassey AJ said in
Polyoak (Pty) Ltd v
Chemical
Workers Industrial Union and Others 1999 (20) ILJ 392 (LC)
,
where he said the following at page 394 H –
395 B:-
“
Many,
but by no means all of these shortcomings are excusable when an
application is brought as a matter of urgency. In the press
of
circumstances, the court may be quick to grant interim relief when it
does so, when it does no more than oblige the Respondents
to refrain from doing what in any event they should not do. By the
time
the return day arrives, however, the dust is settled, and then
it becomes necessary for a court to consider whether a case has been
made out for the relief sought. That an interim order has been
granted in no way prevents this process, for, being interlocutory,
it
serves to dispose of none of the issues that arise in the case. The
absence of opposition moreover, cannot cure deficiencies
in the
papers. Being uncontroverted, the allegations in the Founding
Affidavit can be accepted unless they are baseless or fanciful
and
they must still embody evidence on which the court can act. Failure
to oppose an application in no way constitute an act of
submission to
the relief sought. On the contrary, Respondents in an application
that makes out no case has a right to assume that
the court will
arrive at this conclusion without the aid of argument from them. On
the return day, in short, the court must be
satisfied that a proper
case has been made out for each facet of relief sought”.
[28]
As I have pointed out earlier, in an application to interdict a
strike in terms of
Section 68
, the Labour Court has exclusive
jurisdiction to grant an interdict or an order to restrain.
Subsection (2) thereof states that
the Labour Court may not grant any
order unless 48 hours notice of the application has been given to the
Respondent. In my view,
it was common cause that a shorter notice was
given and on that basis alone, the relief could not be granted since
it is contrary
to the provisions of
Section 68(2).
Further, even if
Nel AJ was to grant that order, he could have done so if he was
satisfied on the facts that a shorter period is
permitted. It may
well be so that Basson J was satisfied at the time hence she granted
an interim order, but that interim order
could only live until then.
For Nel AJ to issue another order either confirming or discharging,
he had to consider the application
with all the facets for the relief
sought. Accordingly, in my view this point cannot succeed on appeal.
Nonetheless as I have pointed
out, I refuse to confirm the rule,
simply on the basis that the requirements of granting an interdict
pendete lite
has not been met.
CONCLUSION
[29]
It is therefore my considered opinion that a court cannot revive an
interim interdict, but a court can issue a further temporary
interdict, if all the requirements are met. It is for these reasons
that I had issued the order I had referred to earlier.
[30]
In
National Council of SPCA v Open Shore
[2008] ZASCA 78
;
2008 (5) SA 339
SCA
the
court repeated the requisites for a right to claim an interim
interdict as follows:-
(a)
A
prima facie
right.
What is required is proof of facts that
establish the existence
of a right in terms of substantive law;
(b)
A well grounded apprehension of irreparable harm if the interim
relief is not granted and the ultimate
relief is eventually granted;
(c)
The balance of convenience favours the granting of an interim
interdict;
(d)
The Applicant has no other satisfactory remedy.
[31]
The court went further to say the following:-
“
The
following explanation of meaning of reasonable apprehension was
quoted with approval in
Minister
of Law and Others v Nordien and Another
,
a reasonable apprehension of injury has been held to be one which a
reasonable man might entertain on being faced with certain
facts. The
applicant for an interdict is not required to establish that on a
balance of probabilities flowing from undisputed facts,
injury will
follow he has only to show that it is reasonable to apprehend that
injury will result. However, the test for apprehension
is an
objective one. This means that on the basis of the facts presented to
him the Judge must decide whether there is any basis
for the
entertainment of a reasonable apprehension by the Applicant”.
[32]
I can say no more, particularly because this is an application for an
interim interdict. In the matter referred to above, the
Supreme Court
of Appeal although it was divided refused to grant an order for an
interim interdict on the basis that the requirements
were not met. I
accordingly did the same with the order that I had
referred to above.
_______________
G.
N MOSHOANA
Acting
Judge of the Labour Court
Date
of Hearing
:
24 October 2008
Date
of Judgment: 07 November 2008
APPEARANCES
For
the Applicant: Adv
Growe SC
Instructed
by
Dykman Attorneys
For
the Respondent: Adv Van Der Riet SC
Instructed
by
Cheadle Thompson &
Hayson Inc.