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[2009] ZALCD 6
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Motorvia 1993 (Pty) Ltd v Transport and Allied Workers Union of South Africa Protector Workers Union and Another (D87/09) [2009] ZALCD 6 (23 February 2009)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT DURBAN
NOT REPORTABLE
CASE
NO D87/09
In
the matter between:
MOTORVIA
1993 (PTY)
LTD
APPLICANT
and
TRANSPORT
AND ALLIED WORKERS UNION
OF
SOUTH AFRICA PROTECTOR
WORKERS
UNION
FIRST
RESPONDENT
THOSE
PERSONS MENTIONED IN
ANNEXURE
“A”
SECOND
RESPONDENT
JUDGMENT
VAN
NIEKERK J:
[1]
On 12 February 2009, this Court issued a rule nisi calling on the
respondents to show cause why a final order should not be
made,
inter
alia
, declaring a strike by the third and further respondents to
constitute an unprotected strike, interdicting them from
participating
in the strike and from committing acts of misconduct,
and ordering the first and second respondents to take steps to ensure
compliance
with the order.
[2]
On the return day, 20 February 2009, the applicant sought to have the
rule confirmed. All of the respondents opposed the application,
mainly on the ground that they denied the existence of any strike
action against the applicant. When the application for interim
relief
was heard on 12 February 2009, the respondents submitted an affidavit
deposed to by Mr. Zack Mankge, an official of the
first respondent.
The affidavit contains a bare denial of any strike or go-slow, and
seeks to explain poor productivity figures
as a consequence of short
time introduced by the applicant. In the answering affidavit filed on
19 February 2009, Mr. Mashalaba,
the deponent, does not rely on this
explanation, but resorts instead to what amounts to a bare denial of
the existence of industrial
action at the applicant’s
operations.
[3]
Since the applicant seeks final relief, the application falls to be
decided on the basis of the principles set out in
Plascon Evans
Paints v Van Riebeeck Paints
[1984] ZASCA 51
;
1984 (3) SA 623
(A). This requires
that where there is a dispute of fact, a final interdict should only
be granted if the facts as stated by the
respondent together with the
admitted facts in the applicant’s affidavit, justify such an
order. This rule is tempered by
an exception in cases where the
dispute raised by the respondent is not real, genuine or bona fide
(at 634I - 635A).
[4]
The applicant contends that its operations at the Durban Car Terminal
and in the export department, long haul driver department
and final
line depot, have been affected by a strike in the form variously of a
work stoppage, go-slows and overtime bans. The
industrial action of
which the applicant complains has a history. The applicant alleges
that in the first week of September 2008,
a go-slow was instituted,
as a result of which drivers completed approximately half the number
of normal trips per day. The respondents
deny this allegation, and
state that the drivers were given extra responsibilities which needed
more time to execute. There is
no attempt to explain, however, why
the drivers only completed approximately half their normal trips.
[5]
The applicant avers that in October 2008, 32 export drivers again
engaged in a go-slow, achieving only half the number of trips
that
they were required to undertake. This allegation is not disputed by
the respondents, who allege that a two day strike occurred
because
the applicant refused to recognise the first and second respondents
as representatives of their members employed by the
applicant. There
is no suggestion in the papers that the first and second respondent
had complied with the relevant provisions
of the Act prior to the
commencement of the strike that they admit occurred in October.
[6]
On 17 and 18 November 2008, the applicant alleges that the export
drivers, the long haul drivers and the yard drivers engaged
in a
strike that resulted in a complete cessation of work. The respondents
fail to deal with this allegation in their answering
affidavit.
[7]
The applicant avers that on 22 January 2009, Mr. Leslie Ntuli was
dismissed for the theft of fuel. Approximately 80 to 100 long
haul
drivers ceased work and were joined by approximately 35 export
drivers. The respondents dispute that a work stoppage occurred.
The
respondent alleges that 15 – 20 long haul drivers requested
management to address them on the dismissal of Ntuli, and
what would
be expected of them should they find themselves in a situation
similar to that of Ntuli. The respondents aver that no
working time
was lost during this incident.
[8]
In their answering affidavit, the respondents do not deal with the
applicant’s averment that Mr. Esterhuizen, the
human
resources manager, spoke to the regional chairperson of TAWUSA at
approximately 17h00 on 22 January 2009, requested him to
come to the
plant to deal with the strike, that Mr. Dlamini came to the depot,
and that the striking employees returned to work
at approximately
22h00 that night. In the absence of a denial, these facts must
therefore be regarded as admitted. The respondents
similarly fail to
deal with a letter dated 23 January 2009 in relation to what the
applicant termed unprotected industrial action,
and warning that if
it persisted, the applicant would seek an interdict in this Court.
[9]
On 9 February 2009, the applicant avers that 60 long haul drivers
stopped work and raised various grievances. During the course
of the
day, export drivers joined the strike. The strike itself is denied by
the respondents, who state that they required management
to address
them on the dismissal of Ntuli. This denial stands in stark contrast
to the terms of a settlement agreement concluded
between the parties
on 9 February 2009. The terms of the agreement include the following
paragraph:
“
The company
undertakes not to take disciplinary action against the particular
employees who engaged in industrial action on 9 February
2009. This
concession shall not constitute a precedent for any future industrial
action
.
This
term, which is clear evidence of the existence of a strike on 9
February 2009, is not dealt with in the respondents’
answering
affidavit.
[10]
On 10 February 2009, the export drivers and lashers on dayshift
engaged in a go-slow. On the same night, the nightshift joined
the
strike. The respondents deny the strike, but do not dispute or
otherwise deal with the drop in productivity figures set out
in the
founding affidavit. The respondents rely on Annexure “F”
to the founding affidavit, an extract from a driver’s
log book
completed by a Mr. Mlotshwa. The argument, as I understand it, is
that the log book constitutes some form of misrepresentation
or
fabrication of the evidence, since it records that the vehicle
concerned was taken for service on that day. The log book records
that Mlotshwa went to McCarthy Toyota at 11h01, but provides no
detail as to what Mlotshwa did until that time, nor why when he
left
McCarthy at 11h47, he did only one trip. The respondents’
averment that the “absence of other log books is clear
induction that they do not exist”(sic) is fatuous. On 16
February 2009, the applicant’s attorney wrote to the
respondents
tendering copies of all of the relevant log books, and
attached to the letter a summary of the log books, reflecting trips
done
by the drivers concerned on 9, 10, and 11 February. The
respondents have elected not to deal with this information.
[11]
In short, the respondents answering affidavit largely constitutes a
bare denial of the applicants averments, and in many respects
simply
fails to deal with central allegations relating to the existence of a
strike. Having elected to respond to the applicant’s
averments
with bare denials and in vague and non-specific terms, and having
failed in many instances to respond to crucial averments,
the
respondents must live with the inevitable consequence of that
strategy. I am satisfied that in these circumstances and having
regard to the exception to the general rule applicable to factual
disputes in applications for final relief, that a proper factual
basis has been established for the relief that the applicant seeks.
[12]
I am satisfied that the urgent; one of the undisputed consequences
for the strike include the non-renewal of the applicant’s
contract with Toyota. The respondents did not contend that the
applicant had failed to establish the remaining requirements for
the
granting of final relief.
[13]
Finally, I deal with the issue of costs. The Act empowers this Court
to make costs orders, subject to the requirements of the
law and
fairness. The guidelines remain those established in
National
Union of Mineworkers v East Rand Gold and Uranium Co Ltd
[1991] ZASCA 168
;
1992 (1)
SA 700
(A), where what was then the Appellate Division of the Supreme
Court called attention to the prejudicial effect that a costs order
may have on a collective bargaining relationship. To say that
industrial relations at the applicant’s operations have been
strained in the last few months would be an understatement, and
considered engagement by both management and the first and second
respondents will be necessary. A costs order against the respondents
may well impact negatively on this engagement. However, against
this,
I have to balance the conduct of the respondents. One of the
fundamental tenets underlying the Act is the right to strike,
and in
particular, protection for those who exercise that right against a
number of consequences, including dismissal, that previously
flowed
from strike action. But protection is conditional on a strike meeting
the substantive and procedural limitations established
by the Act.
The first and second respondents have, on their own version, resorted
to strike action in circumstances where they
have deliberately
flouted the provisions of the Act. The first and second respondents,
and their leadership, clearly regard the
statutory preconditions to
protected strike action as an inconvenient barrier to the exercise of
economic power. On 23 January
2009, the first and second respondents
were warned that in the event of further unprotected strike action,
the applicant would
seek an interdict, in which event a cost order
would be sought.
[14]
The conduct of the first and second respondents extends to the
conduct of these proceedings. The respondents’ answering
affidavit, viewed as a whole, and constituting the bare denial that
it does, is nothing less than a mendacious attempt by the union
leadership to deny the existence of a pattern of unlawful industrial
action that has clearly been initiated by the first and second
respondents and that has served to disrupt labour relations at the
applicant’s plants since September 2008.
[15]
In short, the conduct of the respondents both in relation to the
events that give rise to these proceedings and in relation
to the
conduct of these proceedings, warrants a costs order.
I
accordingly make the following order:
1.
The rule nisi issued by this Court on 12 February 2009 is confirmed.
2.
The respondents, jointly and severally, the one paying the other to
be absolved,
are to pay the costs of the proceedings on 12 and 20
February 2009.
ANDRE
VAN NIEKERK
JUDGE
OF THE LABOUR COURT
Date
of Hearing: 20-02-2009
Date
of Judgment: 23-02-2009
Appearances:
For
the applicant Adv G O Van Niekerk, SC
Instructed
by Deneys Reitz Attorneys
For
the First Respondent Adv F G Mdladla
Instructed
by Ngcobo & Xulu Incorporated