About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2011
>>
[2011] ZALCJHB 206
|
|
Ekurhuleni Metropolitan Municipality v SAMWU and Others (J 793/2010) [2011] ZALCJHB 206 (18 February 2011)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA
HELD
AT BRAAMFONTEIN
CASE
NO. J 793-2010
In the
matter between:
EKURHULENI
METROPOLITAN MUNICIPALITY
............................................
Applicant
and
SOUTH AFRICAN MUNICIPAL WORKERS UNION
..............................
First
Respondent
M F NDLELA & 10,252 OTHERS
..........................................
Second to
10235
rd
Respondents
___________________________________________________________________________
JUDGMENT
___________________________________________________________________________
LAGRANGE J:
Introduction
The applicant municipality seeks the confirmation of a rule
nisi
,
which was handed down by agreement with the respondent union on 15
April 2010. The rule read:
"
1. A rule nisi is hereby and is herewith issued, calling
upon the Respondents to show cause on 21 May 2010 at 10:00 hours, why
a
final order should not be granted in the following terms: -
1.1 interdicting and restraining:
1.1.1 the second and further respondents from marching to the
applicants premises.
1.1.2 of those of the respondents who are employed in an essential
service from engaging in any form of strike action and instructing
them to return to work
1.1.3 the second and further respondents from assaulting,
threatening to assault or harm, intimidating other employees of the
applicant,
ratepayers or members of the public using the applicants
premises.
1.1.4 the second and further respondents from damaging threatening
to damage the applicant's premises, blockading the points of access
to an egress from the applicant's premises, interfering with the
access or access control to any of the applicants premises,
interfering
with proper working of any of the applicant's property or
property under the applicant's control, including water valves,
pumps,
electricity switches.
1.1.5 in any way assaulting, intimidating or threatening private
contractors employed by the applicant to discharge any function
in
behalf of the applicant or any member of the public or residents
seeking to attend at any of the applicant offices.
1.2 The first respondent to instruct its members to desist from:
1.2.1 assaulting, threatening to assault or harm, intimidating
other employees of the applicant, ratepayers or members of the public
using the applicants premises.
1.2.2 damaging, threatening to damage the applicants premises,
blockading the point of access to an egress from the applicants
premises,
interfering with the access or access control to any of the
applicants premises, interfering with proper working of any other
applicants
property or property under the applicant's control,
including water valves, pumps, electricity switches.
1.2.3 assaulting, intimidating or threatening private contractors
employed by the applicant to discharge any function on behalf of
the
applicant or any member of the public or residents seeking to attend
at any of the applicant's offices.
"
Backdground
At the time the interdict was brought there was a national dispute
between SALGA and SAMWU over a number of workplace issues.
The
demands pursued by the union concerned demands over the alleged
waste of public money used in the payment of lawyers to conduct
disciplinary proceedings (under the slogan “no to lawyers –
yes to justice’) and over the delays in the implementation
of
a national system of job evaluation and wage curves for determining
remuneration in the municipal sector.
A separate application under case number J757/10 had been launched
by SALGA to have the industrial action claimed by SAMWU pursuant
to
the dispute declared unlawful. By the time the matter was heard on
the return day it was common cause that the strike was
a protected
one.
This application was intended to be quite distinct from the one
sought by SALGA. The objects of the application as described
by the
municipality were threefold: to prevent the applicant's 10,235
members from gathering in any public place in contravention
of the
Regulation of Gatherings Act, 205 of 1993 ("the Gatherings
Act"); to restrain essential service workers from
engaging in
any form of strike action, and to prevent the individual respondents
from participating in various acts of misconduct
committed in the
course of strike action.
Essentially the thrust of the applicant’s attack was to
prevent essential service workers from participating in it at all,
and to try and ensure that the conduct of those who might lawfully
be on strike did not go beyond the bounds of non-violent and
non-destructive strike protest activity.
The conduct of strikers
On the account of events set out in the founding affidavit, which
was the basis of which the interim interdict was granted, a
significant number of essential service workers did participate in
the strike unlawfully and the conduct of strikers went far
beyond
the bounds of acceptable strike protest activity.
In the Benoni area the applicant had hired a private security
company to protect its buildings and assets according to the
applicant and the rest striking members gathered near the Civic
Centre and began smashing vehicles belonging to the members of
the
public, throwing stones and other objects at the civic buildings. A
fight broke out between strikers and the security company
staff.
Non-strikers were assaulted and were forcibly removed from their
workstations. The strikers shut the offices by closing
the role of
doors and locking the doors with their own padlocks locking some
employees in the building. Two of the first respondent’s
shop
stewards in Benoni were alleged to have organised the marches
through the streets of Benoni and to have instigated the mayhem.
Other strikers were alleged to have entered an electricity
substation on 13 April and damaged circuit breakers thereby cutting
off electricity to the whole of Benoni.
In the Germiston area strikers tampered with a valve disrupting
water supply to the Civic Centre and Eastern Gauteng Services
Council building. When another team of employees was deployed to
reopen it they were accosted by strikers and told that if the
Acting
Executive Director of Infrastructure Services attempted to have the
valve re-opened they would murder him. The strikers
closed the valve
again. As in other areas, the applicant alleged that strikers
travelled in large groups overturning the contents
of rubbish bins
in the street. Once again the applicant identified certain shop
stewards of the first respondent as being directly
involved in the
unlawful activity.
On 12 April 2010, a march on the Springs Civic Centre resulted in
damage to street furniture and the up-ending of rubbish bins
onto
the streets. The following day, water and electricity supplies to
the Civic Centre were cut off. Two individuals were identified
as
March organisers and instigators of the misconduct. In Tembisa the
electricity supply to the Civic offices was cut off on
12 April 2010
and a shop steward of the first respondent, Mr Z Nkisa, allegedly
stabbed a shop steward of another union because
he had refused to
strike.
Work teams of the Water Services North-East District were unable to
perform their functions, either because members were on strike
or
because of intimidation. A number of incidents occurred in which:
sewage was diverted onto the street in Springs; a water
meter was
damaged in Nigel causing water to flow into the streets and reducing
the flow of water to residential properties; circuit
breakers were
switched off in Benoni after locks on the circuit breakers were
broken, and the electricity supply in Springs and
Alberton was
disrupted, causing traffic lights not to operate, amongst other
things.
As a result of the strike action the Water Services, South-Western
District was unable to provide basic water and sewage services
and
pump stations were affected causing sewage to flow back into the
yards of residents.
In the founding affidavit, a number of employees working in
electricity distribution, water supply and distribution, emergency
services and policing units who were engaged in unlawful strike
action were identified. Likewise, a handful of persons allegedly
involved in leading marches and instigating unlawful conduct were
identified by name.
The founding affidavit was served on 15 April 2010, with a number of
confirmatory affidavits from various managers attached.
A further
supplementary affidavit was filed concerning strike action by
members of the Metropolitan Police Department, though
no specific
employees in this department were identified as participants in
unlawful strike action. The answering affidavit was
deposed to on 29
April 2010, nearly 2 weeks later.
In the main, the answering affidavit does not shed much clarity on
the events described in the founding affidavit, other than
to baldly
deny that the events occurred. None of the individuals who are
correctly identified in the founding affidavit do anything
more than
deny their involvement in the unlawful activities described in the
founding affidavit. None of them present an alternative
version of
what they were actually doing on the days in question.
In the replying affidavit, the applicant provides additional detail
about what it alleges took place after the interim order
was granted
on 15 April 2010 in order to make the point that the interdict did
not have the effect of curbing the unlawful activities.
The replying
affidavit was filed a month later on 15 May 2010. Although
condonation for the late submission of this affidavit
was granted,
the difficulty this affidavit presents is that new evidence is
introduced in reply, which might better have been
introduced by way
of a supplementary affidavit filed before the respondents filed an
answering affidavit. Be that as it may,
at the time the replying
affidavit was being prepared it was still necessary for the
applicant to address the answering affidavit,
which might have been
unnecessary if the respondents had simply consented to a final rule
at that stage, leaving perhaps only
the question of costs
unresolved.
In relation to the above, it should perhaps be mentioned that the
following municipal services have been designated as essential
services in terms of notice number 1216 in government Gazette number
18276 of 12 September 1997:
Municipal services in policing;
Municipal health;
Municipal security;
the supply and distribution of water;
the generation, transmission and distribution of power;
firefighting;
the payment of social pensions one month after they fall due;
the maintenance and operation of waterborne sanitation services;
the maintenance and operation of sewage purification works;
the collection of refuse of an organic nature;
the collection and disposal of refuse to disposal site, and
the collection of refuse left uncollected for 14 days or longer,
including domestic
refuse on public roads and the spaces.
Analysis
It is not unusual, though not frequent, that by the time the return
day arrives the industrial action which gave rise to the
initial
interim order is over. By the time the matter came before this court
on 21 May 2010 this was the case. The national strike
in the course
of which the unlawful conduct above took place was over. If it had
not been, and had the conduct in question been
continuing or there
was a reasonable prospect it would resume on the evidence available,
then the value of confirming the prohibitory
order would have been
obvious. It is less obvious when the conduct complained of has ended
as well as the industrial action which
gave rise to it.
Sometimes, even though the conduct complained of has ended there
will be a dispute over whether or not the industrial action
itself
was unlawful or not. In such instances it may still be important for
the parties to have a final determination of this
issue as this
could, for example, impact on whether or not disciplinary action
might validly taken against those who participated
in the action, or
affect whether or not compensation for losses incurred might be
obtained. In such instances, a final pronouncement
by the court on
the lawfulness of the action will be important.
In a case like this, it is less obvious. The applicant does not seek
any declaratory relief, but rather seeks an interdict which
amounts
to a general injunction to workers not to engage in unlawful
misconduct, which is not linked to any concurrent industrial
action.
Unlike typical injunctions of this nature, it is not time bound by
the duration of the industrial action. In this case
the context in
which the actions occurred was a protected national strike. However
the form of relief sought is of indefinite
duration and in principle
would be equally enforceable in industrial action occurring two
years hence, without any need to give
notice of the applicant's
intention to obtain a court order on that occasion.
If the interim order was confirmed, that would not make it any
easier, in this case, for the applicant to take disciplinary steps
against the alleged perpetrators of misconduct which it was able to
identify. The applicant did not need an interim order before
it
could institute disciplinary measures against employees in essential
services who had embarked on strike action or against
lawfully
striking employees who committed misconduct while participating in
strike action.
Mr Pauw SC, representing the applicant together with Mr Hulley,
cited a number of cases in which the final orders relating to
industrial action have been granted.
In
Woolworths (Pty) Ltd v SACCAWU & Others
(2006)
27 ILJ 1234 (LC)
, Revelas J said:
“
[5] The Labour Court has always been, and probably always
will be, sympathetic to employers in a situation where violence has
erupted
during a strike. It is against such behaviour that the court
would readily grant interdicts. However, there should be some
limitation
to the granting of such interdicts in situations where the
respondents are not properly identified. The court should always take
into account what attempts have been made to identify persons against
whom it issues such orders. It is not always possible to
do so, and
that per se would not be an impediment to obtain an interdict. That
would depend on the facts of each case.
[6] The respondents have, through their counsel in court, stated
that there would be no problem with giving an undertaking that there
will be no intimidation and incitement, however, that does not mean
that I should make an order against them when one does not
know which
employees were involved in the actions complained of.
[7] Even if just a few names were put forward, I would have been
in a position to grant such an interdict, in the knowledge that
the
order is directed against at least some specific individuals who have
been shown to behave in a way consistent with the allegations
in the
founding affidavit. To grant a 'blanket' court order, covering a
whole range of the applicant's stores and employees without
any
attempt to identify persons, I believe would be wrong.
"
1
The applicant correctly points out that in this instance it did
identify various individual participants in the unlawful conduct
who
were either striking in essential services or committing other
unlawful conduct during the course of an otherwise lawful
strike. If
this application had been heard at the time that the strike was
still in progress, I would have accepted that the
applicant had laid
a reasonable basis for concluding that there was a risk of ongoing
harm at least until the strike was over
and that it had sufficiently
identified specific individuals to justify a final order against
them.
Another case cited by the applicant, in which a rule was confirmed
on the return day, was the case of
Libanon Gold Mining Co Ltd
& others v National Union of Mine Workers & another
(1985) 6 ILJ 180 (W)
. In that matter, a
rule nisi
prohibiting a full-time organiser of the union from organising or
instigating illegal strike action at the applicant company’s
goldmines was confirmed on the return day some months later. The
court accepted that the applicant had established that a reasonable
apprehension of injury existed as a result of the conduct of the
second respondent, and confirmed the rule against the organiser
on
this basis.
2
However, the rule against the union was not confirmed because the
factual basis for a similar finding in respect of the union
had not
been established. Although it is not entirely clear from the facts
as set out in that judgement, it would seem that the
court made the
final order notwithstanding the absence of continuing apprehension
of the prospect of an unlawful strike by the
time the matter was
argued on the return day. This certainly lends support to the
applicant's argument, as an example of an instance
where a court has
granted a final order despite the absence of an ongoing threat of
harm. It must also be said however that it
does not appear the court
was asked to consider the purpose of granting such an order several
months after what appears to have
been a strike planned for one day.
In
Castel NO v Metal & Allied Workers Union
1987
(4) SA 795
(A)
, a case also cited by the applicant, the
Appellate Division, as it then was, upheld an appeal against a
decision of the Durban
Local Division of the High Court that court
had set aside a decision of a magistrate to refuse a union
commission to hold its
annual general meeting at an open-air venue.
Under the provisions of a notice issued under section 46 (3) of the
Internal Security
act 74 of 1982, all open-air meetings were
prohibited unless expressly authorised by the Minister of police or
the relevant magistrate.
In that case, the court
a quo
also
refused leave to appeal against its decision on the basis that the
matter had become totally academic because the meeting
had already
been held. Hefer JA, writing the judgment of the appeal court
strongly criticised this approach:
“
Before I turn to the appeal itself I wish to deal briefly
with the refusal of the application for leave to appeal by the Court
a
quo. The learned Judge refused leave to appeal for no other reason
than that the matter had become 'totally academic, the meeting
having
been held'. This approach is patently wrong. The fact that the
meeting had already been held and that the effect of the
order could
accordingly no longer be undone did not bring about that the matter
had become academic.
Pronouncements to the effect that a Court of appeal will not
enquire into matters which are of intellectual or academic interest
only (cf African Guarantee and Indemnity Co Ltd v Van Schalkwyk and
Others
1956 (1) SA 326
(A) at 329) are not to be misconstrued. As
appears from the judgment of this Court in J Lendalease Finance (Pty)
Ltd v Corporation
De Mercadeo Agricola and Others
1976 (4) SA 464
(A)
at 486H, they'all deal with the situation where the issue presented
for decision to the Court of first instance was at that
stage of
abstract or intellectual interest only'.When the urgent application
was presented to the Court a quo in the instant case
there was 'a
very real, live issue' (as Corbett JA fittingly described it in the
Lendalease case) and what happened subsequently
was of no importance.
Leave to appeal ought not to have been refused merely because the
meeting had already been held by the time
that the application for
leave was heard.
”
3
The applicant seems to suggest that since it was a live issue in
this case at the time the interim interdict was granted whether
or
not the conduct of the respondents should be prohibited, by parity
of reasoning, on the return day this court should be as
willing to
confirm the order as the appeal court was in
Castel
to set
aside the judgement of the court
a quo
in that instance.
However, in the
Castel
matter, the live issue was whether or
not the magistrate had lawfully refused permission to hold the
meeting or not. In this instance
the live issue at the time
concerned whether or not at the time the applicant was entitled to
the prohibitory relief which it
sought. But if the rule is confirmed
in this instance it is not merely reaffirming whether or not the
applicant was indeed entitled
to their relief at the time when it
was a live issue: it also will have the prospective effect of
imposing a court order barring
such conduct on all future occasions
when it cannot be said on any reasonable basis that such possible
future events were live
issues at that time the matter was argued on
the return day. In the case just cited, the effect of the court
order dismissing
the application to set aside the magistrate
decision had no prospective effect, whatever the significance of its
declaratory
importance may have been.
In the case of
Polyoak (Pty) Ltd v Chemical Workers Industrial
Union & others
(1999) 20
ILJ
392
(LC)
, the court was asked to confirm an interim order, amongst
other things restraining unlawful conduct by striking employees for
an indefinite period. Brassey, AJ held:
“
The fourth prayer I consider improper is an open-ended one,
that is, one that binds the respondents for a period whose duration
is indefinite and potentially unlimited. As I have said, an interdict
can be granted only to restrain misconduct that is likely
to occur in
the future. The period during which this is likely to happen is a
question of fact, but it will rarely, if ever, be
indefinite. It will
normally last for no longer than the motive for wrongdoing remains
alive - typically, within this context,
the duration of the strike
plus the time it thereafter takes for life to return to normal. The
unlimited operation of a sword of
Damocles, to which I referred
above, is more than simply undesirable, it is legally wrong.
”
4
In the result, the court in that case confirmed the rule, but
limited it to a period for one month after the strike. In that
case
it appears that the strike had not ended when the final order was
granted.
The learned author, Prest C B, SC, writes also:
“
The
purpose of litigation is to arrive at an effective judgment or order
a court is not wont to give an order whereby no particular
end is
achieved. Where an applicant has been granted a rule nisi , and all
things have been done which the rule required to be
done and there
seems to be little point in making the rule absolute, the more
obvious order is for the rule to be discharged.
”
5
I have similar concerns to those voiced in the
Polyoak
decision
about the effect of the relief sought in this matter, and for that
reason I decline to confirm the order. I must emphasise
however,
that had the strike action been unresolved by the return day, I
would not have hesitated to confirm the rule for a reasonable
duration.
Costs
The applicant contends that the respondents opposition to the relief
was unreasonable in the extreme. As applicants counsel put
it in
their heads of argument, “
(i)n so far as the essential
service employees are concerned there is simply no defence...The
unlawful conduct by other members
, and the vague nature with which
these allegations are dealt with in the answering affidavit, shows a
cynical disregard for
the law.
”
I accept that by the time this matter came before me, the strike was
over, but it is apparent that the conduct of strikers was
still a
live issue at the time the answering affidavit was filed and at
least during the time the applicant was preparing its
replying
affidavit. By the time the matter came before me, the situation
might have changed. In the circumstances even though
the applicant
has not succeeded in the final relief it sought, I believe it would
be appropriate that it should not be mulcted
in costs for the
unnecessary effort that had to be expended in preparing its replying
affidavit. There is also no reason why
it should not recover its
costs associated with the interim order.
Order
In the light of the above, an order is made in the following terms:
the rule
nisi
issued on 15 April 2010 is discharged;
the first respondent must pay the applicant’s costs of
applying for the interim relief awarded on 15 April 2010, and
the
costs of preparing its replying affidavit, including the costs of
two counsel.
the applicant must pay the first respondent’s costs of
preparation and argument for the hearing on the return day.
ROBERT LAGRANGE
JUDGE OF THE LABOUR
COURT
Date
of hearing : 21 May 2010
Date
of judgment: 18 February 2011
Appearances:
For
the Applicant: P Pauw, SC assisted by G Hulley instructed by Du
Plessis, De Heus & Van Wyk
For
the Respondents: W R Mokhare instructed by M R Phala Attorneys
1
At
1236
2
at
185 D-G.
3
At
804H-805C
4
At
396H-J
5
The
Law & Practice of Interdicts
, Juta, 1996, at p
333