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[2009] ZALCD 22
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Ripple Effect 40 (Pty) Ltd t/a Mkuze Bus Service v SATAWU and Others (D440/09) [2009] ZALCD 22 (25 June 2009)
IN
THE LABOUR COURT OF SOUTH AFRICA
(HELD
AT DURBAN)
CASE
NO: D 440/09
Not
Reportable
In
the matter between
RIPPLE
EFFECT 40 (PTY) LTD t/a
MKUZE
BUS SERVICE
Applicant
And
SATAWU
First
respondent
COMMISSIONER
J VERMAAK
Second
respondent
CCMA
Third
respondent
JUDGMENT
VAN
NIEKERK J
[1] On 15 June 2009, this
court granted an order in the following terms:
1.
The first respondent and it members is hereby interdicted to refrain
from embarking
upon a protected strike and/or any other industrial
action relating to this dispute until the 29
th
June 2009, being the date to which the conciliation had been
postponed to.
2.
the first respondent is hereby called upon, in the event of them
intending to
oppose the interdict, to give reasons why the
certificate under case number KNRB 824-09 as issued on the 11
th
June 2009 should not be set aside. In the event of the first
respondent intending to anticipate the rule nisi granted herein,
notice of 48 hours must be given to the Applicant herein of their
intention to do so, in terms of the rules of the court.
3.
The first respondent to show reasons why cost should not be awarded
against them
and their members in this application”
(sic).
[2]
On 22 June 2009, the first respondent in the urgent application, to
which I shall refer as “the union”, gave notice
to
anticipate the return day and set down that application for hearing
on 24 June 2009. In this application, the union seeks to
have the
order discharged, with costs. I make the assumption for the purposes
of these proceedings (the parties intimated that
I should) that the
order granted on 14 June 2009 is cast in the form of a rule nisi with
a return date of 29 June 2009, and that
the issue for determination
is whether what amounts to a temporary interdict against strike
action by the union should be confirmed.
The applicant did not
pursue specifically the application to review and set aside the
certificate of outcome under case number
824-09.
[3]
The facts are briefly as follows. On 13 April 2009, the union
referred a dispute to the CCMA, alleging that the company had
refused
to bargain with it. The referral was allocated case number KNRB
582-09. A conciliation meeting was scheduled for 4 May
2009. The
conciliation did not proceed on that date, and was rescheduled for 29
May 2009. That notwithstanding, on 5 May 2009,
the parties commenced
negotiations on improvements to the terms and conditions of
employment of the union’s members. Those
negotiations
deadlocked on the same date. On 6 May 2009, the union referred a
second dispute to the CCMA, in which the union recorded
that it had
engaged in negotiations with the company but that no agreement had
been reached. That referral was allocated case number
KNRB 824-09.
[4] On 28 May 2009, the
second respondent (to whom I shall refer as “the commissioner”)
wrote a letter to the union.
The letter reads as follows:
“
Please
take note the matter (Refusal to Bargain) was heard under case
KNRB582-09 on 4 May 2009.
The
matter remained unresolved and the parties agreed to consult with one
another and revert back to the commissioner regarding
settlement of
the matter. However nothing was forthcoming, hence the matter was
rescheduled for 29 May 2009.
Further
please note a second referral 7.11 was received on 6 May 2009 (case
reference KNRB824-09). Scrutiny of both referrals indicates
that
nature of the dispute appears to be the same.
As
a result of the duplication, the matter under case KNRB824-09 shall
not proceed.
Parties
may in writing request the CCMA to issue the relevant certificate or
an advisory award on case KNRB582-09.”
[5]
Why the commissioner considered the nature of the two disputes to be
similar or identical, is beyond comprehension. The first
dispute was
clearly one that concerned a refusal to bargain; the second concerned
what amount to a wage dispute after the bargaining
that took place on
5 May 2009 had deadlocked. Be that as it may, on 1 June 2009, the
commissioner issued a certificate of outcome
to the effect that the
refusal to bargain dispute (case number 582-09) referred to the CCMA
on 14 April 2009, was resolved on 1
June 2009.
[6]
On 9 June 2009, the CCMA issued a notice in respect of case number
824-09 (classifying the dispute as one concerning “other
mutual
interest issues”), and setting the matter down for conciliation
on 29 June 2009, in Pongola.
[7]
On 11 June 2009, the commissioner issued a certificate of outcome in
respect of case number 824-09, dated 11 June 2009, in which
the
commissioner certified that the dispute referred to conciliation on 6
May 2009 remained unresolved. Why or at whose instance
the
commissioner issued the certificate at this juncture remains a
mystery, but this is the certificate that the applicant sought
to
review in terms of its notice of motion in the urgent application.
[8]
On 13 June 2009, the union issued a strike notice in terms of s 64
(1) (b) of the LRA. The notice advised the company that a
strike
would commence at 10h00 on 15 June 2009, consequent on the company’s
failure to meet the union members’ demands.
[9] On 15 June 2009, the
company filed an urgent application in terms of s 158 (1) in terms of
which it sought, as a matter of urgency,
the setting aside of the
certificate of outcome under case number 824-09 dated 11 June 2009.
In the founding affidavit, the deponent
(Kruger) records the referral
of the two disputes to the CCMA, the first concerning the refusal to
bargain, the second the dispute
over wages. Kruger did not consider
the latter referral to be material to the application. Kruger records
the issuing of the certificate
of outcome under case number 582-09,
which indicates that the matter was settled. He records receiving the
notice of set down in
relation to case number 824-09 (the wage
dispute) for conciliation on 29 June 2009. In this regard, Kruger
states the following:
“
On
or about the 09
th
of
June 2009 our offices received a notice of set down under case number
KNRB824-09 indicating that the mater would be conciliated
on the 29
th
of June 2009 at Pongola. The venue was placed at Pongola on First
Respondent’s insistence in that its members would have
difficulty in travelling to Richards Bay. I thought that the notice
was an administrative error from the Third Respondent in that
the
case was already dismissed as indicated in paragraph 10 (Annexure D).
I respectfully attached hereto a true copy of the notice
of set down
marked Annexure “F”.”
Annexure
“D” is the commissioner’s letter dated 28 May 2009,
advising the union
inter alia
that the matter under case number KNRB 824-09 “shall not
proceed”.
[10]
Kruger avers further that on 12 June 2009, there were rumours of a
strike. He advised the manager of the company, a Mr Moodley,
that
there was no basis for a strike in that the dispute under case number
582-09 had been resolved and that the dispute under
case number
824-09 would “only be heard” on 29 June 2009. Kruger
avers that despite a telephone conversation with a
union official on
12 June during which he was assured that there would be no
unprotected strike, the company received a letter
the following
morning (13 June) stating that the union would commence a strike on
15 June 2009. The strike notice attached the
certificate of outcome
issued under case number 824-09.
[11]
Two legal submissions are made in the founding affidavit. First, the
applicant submits that the union did not inform the applicant’s
employers’ organisation of the proposed strike as required by s
64 (1)(b)(ii) of the LRA, and secondly, it submits that the
union had
received notice of the scheduled conciliation under case number
824-09 on 9 June 2009, a date prior to the date on which
the
certificate of outcome was issued.
[12]
Frankly, neither submission had any merit. In regard to the first
point, s 64 (1) (b) (ii) requires notice of a strike to be
given to
an employer’s organisation only if the employer is a member of
an employers’ organisation that is a party
to the dispute. In
the present instance, Kruger describes himself in the founding
affidavit as a labour consultant and a member
of Allied Werkgewers
Konsultante PTA CC t/a Kruger & Associates. Kruger avers
that the closed corporation is a member
of the AHI Employers’
Organisation, as is the applicant. Kruger & Associates is
manifestly a business, not an employers’
organisation. Kruger &
Associates, like any labour consultancy, acquires none of the rights
that the LRA confers on registered
employers’ organisation
solely by virtue of its membership of one. Its membership of the AHI.
Kruger refers throughout the
founding affidavit to “the
applicants’ employers organisation” (sic), clearly
holding out that Kruger & Associates
is such an organisation.
This is nothing short of disingenuous - its association with a
registered employers’ organisation
in the form of the AHI does
not by osmosis or otherwise confer on Kruger & Associates
the status of an employers’
organisation for the purposes of
the Act. I fail to appreciate on what basis Kruger and/or Kruger &
Associates is permitted
to represent the applicant in the CCMA. The
founding and the supplementary affidavits clearly disclose that
Kruger represents the
applicant at conciliations and arbitrations.
This is a clear violation of the Act. Be that as it may, the simple
objection to the
applicant’s contention is that there is
no indication whatever on the papers that the AHI (the only
legitimate
employers’ organisation on the horizon) was ever a
party to either dispute referred by the union to the CCMA. The
applicant’s
contention in regard to the addressee of the strike
notice should have been dismissed.
[13] In regard to the
second legal submission, Kruger states the following in the founding
affidavit:
“
First
Respondent received notice of the scheduled conciliation under case
number KNRB824-09 at the same time Applicant received
notice thereof,
to wit the 09
th
of June 2009. This happened prior to the certificate in question was
issued. This clearly indicates the mala fide conduct of First
Respondent in handling the dispute to date. (sic)”
This
as a not a legal submission, despite the label to that effect that
the deponent to the founding affidavit optimistically attaches
to it.
Rather, it is an incomprehensible and impenetrable statement that
bears no relation to the primary relief sought by the
applicant i.e.
the review and setting aside of the certificate issued by the
commissioner on 9 June 2009. The founding affidavit
simply fails to
establish the factual and legal foundation for the order sought. In
short, the application ought to have been dismissed.
On this basis,
the rule nisi stands to be set aside.
[14] In these
proceedings, Adv. Schumann, who appeared for the union,
submitted that any dispute about the status of the certificate
of
outcome was irrelevant - the certificate simply records that on 11
June 2009, the dispute referred to the CCMA on 6 May 2009
remained
unresolved. What mattered, he contended, was that 30 days had elapsed
since the referral of the dispute, and that proper
notice of an
intention to strike had been given after the elapse of that period.
The fulfilment of the latter requirement was not
disputed in these
proceedings. In regard to the former requirement, the applicant does
not dispute that at the time the strike
notice was issued, 30 days
had elapsed since the referral of the dispute to the CCMA. Kruger
avers in a supplementary affidavit
that he filed on the day of the
hearing that that the 30- day period was extended by
agreement between the parties,
on 21 May 2009. This, of course, would
render the strike unprotected - s 64 (1) reads as follows:
“
Every
employee has the right to strike and every employer has recourse to
lock-out if-
(a)
the issue in dispute has been
referred to a council or to the Commission as required by this Act,
and -
(i) a certificate
stating that the dispute remains unresolved has been issued; or
(ii)
a period of 30 days, or any extension of that period agreed to
between the parties to the dispute, has elapsed since the referral
was received by the council or the Commission…”
[15] Kruger proffers the
following version:
“
3.
I need to explain what transpired on the 29
th
of May 2009.
I attended the
conciliation proceedings on the 29
th
of May 2009 as set
down by the CCMA, Annexure “C” to the application. Mr
Colin Moodley, manager of Mhuze Bus was on
his way to the CCMA.
4.
I was then handed the letter marked “D”. On receipt of
the letter I approached Commissioner Joanne Vermaak informing
her
that the contents of the letter is not a correct representation of
the factual circumstances. I explained to her that the dispute
set
down for the 29
th
of May 2009 is a newly referred dispute by the First Respondent that
still needs to be conciliated.
5.
In the presence of Commissioner Vermaak I phoned Mr Guqani Mholongo
informing him of the matter set down in Richards Bay whilst
he
requested the matter to be dealt with by the CCMA in Pongola. I
suggested that the matter is set down in Pongola to coincide
with
other matters set down in Pongola (these were after the 6
th
June 2009).
This
would only occur after the 30 day period, and he was acutely aware
thereof. He agreed thereto. He proposed the matters be set
down with
alternative times.
We
then awaited the CCMA to set the matters down in Pongola on a given
date and time. The subsequent events are dealt with in my
Supporting
Affidavit.
In
the circumstances Mhlongo accepted that conciliation was necessary
and that this would only occur after the 30-day period. He
accordingly agreed to the extension of the 30 day period”
[16]
Section 158 (1) (a) (i) of the LRA empowers this court to grant
urgent interim relief. This implies that the court may, in
appropriate circumstances, issue a rule nisi. Rule 8 (1)) of the
Rules of this court acknowledge this power, and provide that unless
otherwise ordered, a respondent may anticipate the return day of an
interim interdict on not less than 48 hours notice. These provisions
have the capacity to be abused, as they were in the present instance.
A rule nisi is not granted as a matter of course, but only
if the
court is satisfied that it is warranted. It follows that, in granting
a rule nisi, the court must reach a decision on the
applicable law
since a court cannot decide a question of law, as opposed to a
question of fact, on a prima facie basis (see
Safcor
Fowarding (Pty) Ltd v NTC
1982 (3) SA
661
(AD, at 660A). The court ought not in the exercise of its review
jurisdiction grant interim orders that have the effect of setting
aside decisions made by commissioners - there is no such thing as a
prima facie or interim review (
Safcor
Forwarding
(supra) at 660G). It follows
that the court ought not to have entertained the application in so
far as it sought to review and
set aside, on an interim basis, the
certificate of outcome. I leave aside the issue of whether the
applicant is entitled, effectively
by way of a replying affidavit, to
raise new matters and in particular, whether an applicant is entitled
on the return day of a
rule nisi to raise an entirely new basis for
the order that it then seeks to have confirmed. It seems to me that a
respondent is
obliged, on a return day, to show no more than that
the order should not have been granted at the outset because there
was
no proper case made out for that order on the papers (see
Lourenco & others v Ferela (Pty) Ltd
& others
(1)
1998 (3) SA 281
(T),
at 289 I-J).
[17]
I intend to dispose of this matter on the basis that the above
explanation is wholly at odds with the content of the founding
affidavit, and that the two versions proffered by the applicant are
mutually destructive. In the founding affidavit, it will be
recalled,
Kruger states that the setting down of the dispute referred under
case number 824-09 in Pongola on 29 June 2009 was “an
administrative error”, in that “the case was already
dismissed”, or, out another way, that the dispute was incapable
of set down for conciliation. In the supplementary affidavit, Kruger
avers that the same dispute is one that required conciliation,
and
that specific and detailed arrangements were made to facilitate that
process. On this basis alone, the union’s version
must prevail,
and the rule nisi stands to be set aside.
[18]
In any event, the s 64 (1) requires either the issuing of a
certificate stating that a dispute referred to conciliation has
been
unresolved, or the expiry of a period of 30 days or any agreed
extension of that period. The applicant failed to establish,
either
in the founding affidavit or in the supplementary affidavit, any
basis on which the commissioner’s certificate of
outcome issued
on 11 June 2009 should be reviewed and set aside. The certificate
therefore stands, and serves (together with the
union’s
undisputed compliance with the other requirements of s 64(1)) to give
rise to a protected strike.
For
the above reasons, I make the following order:
1.
The rule nisi issued on 15 June 2009 is set aside.
2.
The applicant is to pay the costs of these proceedings.
ANDRE
VAN NIEKERK
JUDGE
OF THE LABOUR COURT
Date
of application : 24 June 2009
Date
of judgment : 25 June 2009
Appearances:
For
the applicant
Adv
P Schumann, instructed by PKX Attorneys
For
the respondent:
Adv
I Pillay, instructed by Riaan Kruger Attorneys