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[2009] ZALCJHB 98
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Minister of Correctional Services v Police And Prison Civil Union (POPCRU) (J1152/09) [2009] ZALCJHB 98 (4 August 2009)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
IN JOHANNESBURG
CASE
NO: J1152/09
In
the matter between:
MINISTER
OF CORRECTIONAL SERVICES
APPLICANT
and
POLICE
AND PRISON CIVIL RIGHTS UNION
(POPCRU)
RESPONDENT
JUDGMENT
Nyathela
AJ
Introduction
[1]
Applicant approached court on an urgent
basis on 04 June 2009 seeking an interim relief interdicting members
of the respondent from
engaging in certain conduct. A rule nisi was
granted on 04 June 2009 and the return date is 13 August 2009.
[2]
Respondent anticipated the return date and
the matter was set down to be heard on 23 June 2009.
[3]
On 23 June 2009, the matter was postponed
to Monday the 29
th
June 2009 to allow applicant to file its replying affidavit.
The
parties
[4]
The applicant is the Minister of
Correctional Services and is cited in his official capacity as the
Minister responsible for the
Department of Correctional Services.
[5]
The respondent is POPCRU, a duly registered
trade union acting in terms of
section 200
of the
Labour Relations
Act 66 of 1995
.
The
facts
[6]
On 04 June 2009, applicant approached court
on an urgent basis without filing an affidavit and without notice to
the respondent.
[7]
Applicant presented to court oral evidence
of one Ezekiel Khosa and as a result the court granted an interim
order as follows: “IT
IS ORDERED THAT:
1. The rules of court are
dispensed with and the matter is disposed of on urgency;
2. A rule nisi is hereby
issued, calling upon the Respondent to show cause on the 13
th
August 2009 or soon thereafter why the following order should not be
made final.
2.1 Interdicting and
restraining the Respondent and/or its members from engaging in an
unprotected strike and any conduct in furtherance
thereof;
2.2 Interdicting and
restraining the Respondent and/or its members from blocking and/or
preventing employees of the Applicant and/or
the public from entering
or leaving the premises of the Applicant;
2.3 Interdicting and
restraining the Respondent and/or its members from interfering or
intimidating the employees of the Applicant
in the execution and/or
furtherance of their duties;
2.4 Interdicting and
restraining the Respondent and/or its members from coming within a
distance of 200m from the premises of the
Applicant save where they
do so for purposes of the execution of their duties or rendering of
services.
2.5 Interdicting and
restraining the Respondent and/or its members from picketing within a
distance of 200m from premises of the
Applicant.
2.6 The respondent is to
pay the costs of this application.
3. Prayers 2.1 to 2.6
above serve as an interim order”.
[8]
The return day is the 13
th
August 2009. Respondent anticipated the return day and approached
court on 23 June 2009.
[9]
The case was postponed to 29 June 2009 by
agreement between the parties and to allow the Respondent to file its
papers. The costs
of the postponement were reserved.
[10]
Applicant’s filed its papers 29 June
2009.
POINT
IN LIMINE
[11]
Respondent raised points in limine and
argued as follows:
11.1
The applicant has improperly abused the
process of this Honourable Court to obtain an order to which it was
not entitled, and regardless
of the merits of its application, in
circumstances where there was no good reason to proceed on an
ex
parte
basis, and where it failed to
place all relevant facts before the court. Neither the Labour
Relations Act 66 of 1995 (LRA) nor
the Labour Court Rules make
provision for
ex parte
applications of this nature.
11.2
In terms of section 68(2) of the LRA, at
least 48 hours notice must be given of an application to interdict a
strike action or conduct
in furtherance thereof. While the notice
period may be reduced on good cause shown, it cannot be waived. The
court lacks jurisdiction
to interdict an alleged unprotected strike
action or any conduct in furtherance thereof.
Analysis
Points
in limine
[12]
The first point in limine deals with Rule
7(1) of the Labour Court Rules provides that “
An
application must be brought on notice to all persons who have an
interest in the application”.
Marion
Fouche’ in her book titled
Rules
of the CCMA and the Labour Courts Butterworths
2006
, at
page 75 commented on this sub-rule as follows: “
If
no relief of a final nature is sought against any person, an ex parte
application is brought, which need not be served on any
person other
than the Registrar of the court”.
I
accept the views expressed by the author in this regard as the
prejudice which the respondent may suffer is removed by the fact
that
the order is merely an interim order for which it has an opportunity
to respond before a final order is granted and to even
anticipate the
return date. The point in limine is therefore dismissed.
[13]
The second point in limine is that
applicant should have complied with the notice period stipulated in
section 68(2) of the LRA.
In its answering affidavit, the respondent
made reference to Mr Khosa’s evidence that applicant has been
designated as an
essential service. Although respondent disputed
certain aspects of the evidence, it did not dispute the fact that
applicant has
been designated as an essential service as testified to
by Mr Khosa. I therefore accept that applicant has been designated as
an
essential service.
[14]
Section 68(4) of the LRA provides as
follows: “
Subsection (2) and (3)
do not apply to an employer or an employee engaged in an essential
service or a maintenance service.
In
view of my finding that applicant is an essential service, I conclude
that the notice period referred to in section 68(2) of
the LRA is not
applicable in this matter. The point in limine is therefore
dismissed.
Merits
[15]
In Polyoak (Pty) Ltd v Chemical Workers
Industrial Union & Others (1999) 20 ILJ 392 (LC) at 395 the court
held as follows: “
Four prayers are
typically included in the notice of motion for which there is either
no basis in law or none that is laid in the
papers.
1
The first is one in which an
interdict is sought against all strikers when acts of misconduct are
alleged only against a portion
of them. Generally speaking, a person
can only be restrained by interdict if the evidence demonstrates
that, as a matter of probability,
he or she will commit the act in
question within the period encompassed by the proposed order. The
conclusion is competent when
the evidence shows that person has
undertaken or agreed to commit the act or that an inference to this
effect can be drawn from
the fact that he or she has previously done
so. In the absence of evidence identifying the respondent as a
prospective perpetrator
or accomplice in the acts of a perpetrator,
however, he or she cannot be interdicted, and it matters not that the
person is one
of a group of strikers containing malefactors or that
his or her interests as striker happen to be promoted by the
wrongdoing in
question. Our law knows no concept of collective
guilt”.
[16]
In this matter, applicant maintained
throughout the proceedings that the alleged demonstrations took place
during lunch time only
at the following centres: viz: Pretoria,
Baviaanspoort, Zonderwater, Boksburg, and Leeukop. In both Mr Khosa’s
testimony
and the applicant’s replying affidavit, applicant
maintained that centres like Johannesburg did not participate in the
picketing.
It is therefore clear that an interdict which applies to
all centres will not be appropriate as not all the centres
participated
in the picketing. I accept the reasoning in the Polyoak
case above that even though other centres have POPCRU members it will
be
inappropriate to interdict them if they are not participating in
the picketing. Mr Khosa’s testimony further indicates that
the
Johannesburg Centre actually refused to participate in the picketing
on the ground that such picketing was unprotected. This
is a clear
indication that there is no probability that the other centres will
participate in the picketing given the reasons for
Johannesburg’s
non participation in the picketing. In the circumstances, I find that
the interdict should be limited only
to the centres mentioned by Mr
Khosa on page 13 line 17 of the record.
[17]
AD order 2.1: This order was granted on the
assumption that members of the respondent were engaged in an
unprotected strike. One
key element of a strike is that it should
involve a refusal, retardation or obstruction of work by employees.
In this matter, it
is common cause that the picketing in which
members of the respondent were involved only took place during lunch
hour. Applicant
has never contended that the picketing also took
place during office hours. In the circumstances, I find that the
picketing did
not involve a refusal, retardation or obstruction of
work and thus it cannot be classified as a strike in terms of section
213
of the LRA. Since the assumption that members of respondent were
engaged in a strike is incorrect, this order cannot stand.
[18]
AD order 2.2 and 2.3: In paragraph 46 of
the Answering affidavit, the respondent denied that its members
blocked access gates during
the demonstrations. Respondent further
maintained that the SAPS was present at the scene of the picketing
and if there were incidents
like blockades etc, their members would
have been arrested. According to the respondent the SAPS never
intervened as the demonstration
was peaceful. Apart from making a
bare denial, applicant has never disputed the specific facts made by
the respondent in its affidavit
in this regard. In the circumstances,
I find that the picketing was peaceful as contended by the
respondent. I therefore conclude
that orders 2.2. and 2.3 cannot be
justified as the conduct complained of neither took place nor did
members of respondent threaten
to embark on such conduct.
[19]
AD 2.4 and 2.5: Applicant has not disputed
the fact that members of the respondent in the affected centres had
been granted permission
by the relevant Local Authorities hold the
gatherings / picketing in question. The said picketing/ gatherings
were therefore lawful.
However, applicant’s contention is that
members of respondent breached the conditions of the permission
granted in that they
amongst others wore their uniform mixed with
respondent’s T-shirts etc. It is for this reason that
respondent sought order
2.4 and 2.5.
[20]
To substantiate its case, applicant
submitted Annexure KM3 which is a photo album containing photos
allegedly taken by one Johan
Welden, at the Boksburg Management Area
during the picketing. It should be mentioned that these photo album
was only introduced
by applicant in its replying affidavit. Mr Khosa
never mentioned in his evidence the said photos existed. The photos
are therefore
new evidence which was introduced in the replying
affidavit. I cannot accept such evidence since the replying affidavit
is not
meant to introduce new evidence. Furthermore, respondent had
no opportunity to deal with the authenticity and admissibility of
such evidence. Moreover, this evidence even if it had been accepted
only deals with what is alleged to have been non compliance
with the
condition of the permission granted at the Boksburg Management Area.
In the light of the Polyoak decision referred to
above, applicant
cannot be justified in seeking an interdict against members of
respondent in all the other centres based on the
Boksburg incident
alone. There is no evidence to show that members of respondent in the
other centres breached the conditions of
the permission which they
had been granted by their respective Local Authorities. Since
applicant is seeking the order in 2.4 and
2.5 above on the basis that
members of respondent breached the conditions of the permission they
had been granted, and having found
that that conclusion is not
justified, these orders cannot be allowed to stand.
Order
[21]
In the light of the above analysis, I make
the following order:
(i)
The interim order granted on 04 June 2009
is hereby discharged.
(ii)
The applicant is ordered to pay
respondent’s costs including costs reserved on 23 June 2009.
_______________
Nyathela
AJ
Date
of Hearing :
29 June 2009
Date
of Judgment :
04 August 2009
Appearances
For
the Applicant :
Adv. L.M Moloisane
Instructed
by:
State Attorney
For
the Respondent: Adv. G.A
Fourie
Instructed
by:
K.A Allardyce
& Partners