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[2011] ZALCJHB 231
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Supreme Springs, division of Met Industrial Ltd v MEWUSA and Others (J 2067/10) [2011] ZALCJHB 231 (10 August 2011)
11
Not reportable
Of interest to other
judges
IN THE LABOUR COURT OF
SOUTH AFRICA
HELD AT JOHANNESBURG
CASE NO J 2067/10
In
the matter between:
SUPREME
SPRING, A DIVISION OF
METINDUSTRIAL
LTD
...................................................................................
Applicant
And
MEWUSA
............................................................................................
First
Respondent
THE
INDIVIUDUALS LISTED IN
ANNEXURE “A”
OF THE NOTICE OF MOTION
......
Second to
further Respondents
JUDGMENT
VAN
NIEKERK J
Introduction
[1] On 18 October 2010,
this court issued a rule
nisi
together with certain interim
interdictory relief. The latter included an order declaring a strike
at the applicant’s premises
to be unprotected, interdicting and
restraining the second to further respondents (‘the striking
employees’) from participating
in the strike, and interdicting
the first respondent (‘the union’) from encouraging or
inciting the striking employees
to participate in the strike. These
elements of the order were directed to operate as an interim order
with immediate effect, pending
the finalisation of the application.
The court ordered further that the respondents were entitled to
anticipate the return date
on 48 hours notice to the applicant. The
rule
nisi
was confirmed without opposition on 5 November 2010.
[2] On 19 October 2010,
the applicant filed an application in terms of which it sought an
order declaring the respondents to be
on contempt of the order
granted on 18 October. The court granted an order calling upon the
general secretary of the first respondent
(Mr Kgagudi ) and certain
named persons (Zungu, Lesapo, Radebe, Mbangata, Thobejane and
Makgoba, (to whom I shall refer as the
individual respondents) to
appear in court on 22 October 2009 to show cause why the union should
not be fined and why the individual
respondents should not be
committed to prison for their contempt. The matter was postponed on
22 October and again on 27 October
and thereafter to 2 November to
secure the filing of answering affidavits on behalf of the individual
persons named above. The
application was eventually argued on 10
November.
Factual background
[3] The facts giving rise
to the application for interim relief and the present application are
set out in the founding affidavit
to both applications, and I do not
intend to repeat them here. For present purposes, the following
summary will suffice.
[4] On 2 September 2010
those of the applicant’s employees who are members of the union
joined a strike that had been called
by NUMSA on 1 September. On 9
September 2010, the applicant advised the union that it intended to
take disciplinary action against
certain employees, including five
shop stewards. The parties met at the end of September to discuss the
issue. Little progress
was made, and on 11 October 2010 the union
brought an urgent application to interdict the applicant from
conducting the disciplinary
hearing. The application was dismissed.
On 14 October 2010, the applicant dismissed two of the shop stewards.
[5] On 18 October 2010,
the union’s members commenced a strike at the applicant’s
plant. It is not disputed by any of
the union officials and office
bearers in the answering affidavits filed by them that at about 9h15
that morning, striking employees
stormed the administration block at
plant 2, and that they broke the door of the human resources manager,
attempting to gain access
to her office.. It is also not disputed
that the group moved down the corridor, broke a trellidor in the
passage that separates
the managing director’s office from the
rest, and that they demanded to be addressed by the human resources
manager or the
managing director on the issue of the reinstatement of
previously dismissed shop stewards. The respondents do not deny that
the
striking employees then gathered at behind the administration
building, at an area where undercover parking is available. The
vehicle
belonging to the applicant’s managing director was
damaged – all four tyres were punctured, the windows were
broken
and the vehicle was dented. Employees who were working were
intimidated, and forced to move out of the plant.
[6] At approximately
10h15, members of the respondent’s management, including the
industrial relations manager, Msomi, met
with union shop stewards.
The shop stewards demanded that the two dismissed shop stewards be
reinstated. They also demanded better
benefits and wages, a proper
grading system and lunch breaks as the law requires.
[7] The order granted on
18 October was served on the union on the same date and on the
applicant’s employees on the morning
of 19 October. The events
that give rise to the present application occurred on 19 October.
Early that morning, Msomi met with
two shop stewards, Mbangata and
Ndwandwe. They informed him that the union’s officials had
advised the striking employees
that they were entitled to continue
the strike for 48 hours, referring to that part of the order which
permitted the union to anticipate
the return date on 48 hours notice
to the applicant.
[8] The applicant’s
attorney of record (Ms Louw) thereafter telephoned Adv Phala, the
union’ s legal adviser, to explain
the nature of the order.
Phala acknowledged that he understood the correct meaning of the
order (i.e. that a provision to the effect
that the union could
anticipate the return date on notice did not mean that the striking
employees could continue their strike),
but stated that he had not
communicated an incorrect interpretation of the order to the striking
employees. Louw thereafter requested
Phala to intervene, which he
undertook to do. At 11h05 Phala had not reverted to Louw. Louw then
addressed a letter to Phala stating
that in the absence of
intervention by the union, the applicant would bring a contempt
application. At 11h42, Phala telephoned
Louw and advised her that the
union’s organisers had been sent to the applicant’s
premises to persuade the striking
employees to return to work.
[9] At some point on 19
October, Kgagudi addressed a general letter to union officials and
office bearers drawing their attention
to clauses 49.1 to 49.5 of the
union’s constitution, claiming that the union would be
responsible only for industrial action
carries out in terms of the
clauses concerned. The letter continues :
Therefore this implies
that MEWUSA shall not be liable for any industrial action carries out
contrary to clause 49.1 – 49.5.
Organisers and all structures
should continuously inform and capacitate members and shop stewards
about this clauses of industrial
actions (sic).’
There is no evidence that
this letter was ever sent to any of the officials or members of the
union delegation engaged in discussions
at the applicant’s
plant.
[10] At the meeting with
management representatives held on the morning of 19 October, the
union delegation, which included Zungu,
Mbangata, Thobejane, and
Makgoba, told Msomi that they were there to negotiate the situation
from a clean slate. When Msomi refused,
the union delegation
requested and was granted an opportunity to address the striking
workers. At 12h15, the delegation again met
with Msomi, who again
advised them that the dispute about the dismissals would run its
course and that they should instruct the
striking employees to return
to work. The delegation refused, and demanded that Bekker address
them. By 13h20, a stalemate had
been reached, with the union
delegation stating that they would call off the strike only if there
would be no disciplinary action
against the employees and if the
disciplinary process in respect of the previously dismissed employees
was finalised by 21 October.
None of these averments are specifically
denied by any of the individual respondents. . On the respondents’
version, agreement
was reached at around 15h30 that the striking
workers would return to work, which they did the next day. The
applicant denies that
any agreement was reached, but that is not a
dispute that is relevant for present purposes.
[11] The individual
respondents called upon to show cause why they should not be
committed for contempt filed affidavits in response
to the contempt
application. The averments made by each of them are summarised below:
Zungu
Zungu is employed by the
applicant. He is also a shop steward. He states that at about 10h00
on 19 October, Thobejane and Magoba
came to the applicant’s
premises and held a meeting with management. Thobejane called members
and explained the interdict
and said that the strike should be called
off. He also stated that the strike did not comply with the union’s
constitution.
At a meeting held with the applicant’s management
at 1130 the same morning “to address calling off the strike and
how
management intends and/or plans to resolve workers grievances and
demands”, the management refused to discuss any issues with
Thobejane, Makgoba and the shop stewards. After further discussion
with the members, they finally returned to work at about 15h30.
After
a meeting with the applicant’s management, it was agreed that
the members would resume their duties on 20 October.
Lesapo
Lesapo is an employee of
the respondent and a shop steward. He states that on the afternoon of
19 October, union officials arrived
to call off the strike, and that
everyone went home because it was already late. He states further
that he did not encourage any
employees to go on strike and that he
was part of ‘the people’ who addressed employees and said
that the union was
distancing itself from the strike.
Radebe
Radebe is an employee of
the respondent. He states that he was informed by fellow employees
that there was an interdict from the
Labour Court, but that the
interdict allowed employees 48 hours to continue the strike. He
convened a meeting (when this was done
is not stated, but it would
appear to be 18 October) to discuss the court order. He had no reason
to doubt the interpretation of
the order that he had been given. He
took a copy of the order home. On 19 October, he did not attend at
the applicant’s premises.
During the same afternoon, he
realised that he had a copy of the order with him. On reading the
order, he realise that the order
had been misinterpreted regarding
the 48 hour provision. He urgently made his way by taxi to the
applicant’s premises. To
tell members that the order did not
permit them to continue their strike as they thought. On arrival at
the applicant’s premises
at about 1530, Radebe says he saw
Mogoba and Thobejane with shop stewards, discussion the ‘dissolving’
of the strike.
When he joined them, they were about to convey a
message that the general secretary of the union had condemned the
strike and had
mandated two officials to put an end to the strike.
The officials then went to inform the respondent’s management
that the
members would resume work the following day.
Mbanyatha
Mbanyata states that he
is an employee of the applicant. He is also a shop steward. His
affidavit is cast in terms virtually identical
to that of Zungu.
Thobejane
Thobejane is employed by
the union as a deputy general secretary. He states that on 19
October, he was instructed by Kagadi to accompany
Thobejane to visit
the applicant’s premises to inform the union’s members
that their shrike was illegal and to encourage
them to return to
work. He states further that after addressing the members, they
raised the issue of shop stewards who ha been
dismissed and suggested
that the issue be discussed with the applicant’s management. He
and Thobejane then requested an audience
with management. At a
meeting on the same morning, Makgoba states that he and Thobejane had
made it clear to the members that the
strike was not sanctioned by
the union, a and that the union was doing its best to encourage the
members to return to work. On
the issue of the dismissed employees,
the management stated that they were not prepared to discuss the
matter with the union since
appeals had been submitted and remained
pending. They subsequently met with the members once more and
instructed them to return
to work. The members were reluctant to do
so but after making it clear that the union was distancing itself
from the strike they
agreed unconditionally to resume duty on 20
October.
Makgoba
Makgoba is employed by
the union as an organiser. His affidavit is cast is terms identical
to that of Thobejane.
[12] None of the
individual respondents denies the averments in the founding affidavit
regarding the sequence of events on the morning
of 19 October, or the
exchanges that the applicant avers took place between its management
and the union delegation. It is clear
from the papers that on the
undisputed version of the applicant, the union delegation that met
with management on the morning of
19 October set preconditions to a
return to work, in circumstances where the union and the members of
its delegation were aware
of the order granted by this court to the
effect that the strike was unprotected, and that the union should not
encourage or incite
its members to participate in the strike. It was
only after the refusal by management to attach any preconditions to
the return
to work that on after 15h00 on the afternoon of the 19
th
,
the union delegation persuaded the striking employees to return to
work with effect from the next day.
Legal principles
[13] The purpose of
contempt proceedings is to compel compliance with orders of court and
to vindicate the court’s honour
consequent on the court’s
disregard of its orders. The principles relevant to contempt were set
out by Cameron J in
Fakie NO v CCI Systems (Pty) Ltd
[2006] ZASCA 52
;
2006 (4)
SA 326
(SCA). It is a crime unlawfully and intentionally to disobey a
court order, the essence of which lies in violating the dignity,
repute or authority of the court. The order in question must be one
ad factum praestandum
, the order must have been served on the
respondent or the respondent must have been advised of the order in
circumstances where
there are no reasonable grounds for disbelieving
the information, and respondent must have failed to comply with the
order, and
the failure to comply must be both mala fide and wilful
(see
Fakie NO
(
supra), Uncedo Taxi Service Association v
Maninjwa & others
[1998] BCLR 683
(E)).
[14] Once it has been
proved that the order in question was issued and that the respondent
failed to comply with it, there is an
evidentiary burden on the
respondent to demonstrate bona fides and that that the disobedience
of the order was not mala fides.
Fakie NO
(
supra
), the
court made the point in the following way:
Should the respondent
fail to advance evidence that establishes a reasonable doubt as to
whether non-compliance was wilful and mala
fide, contempt will have
been established beyond reasonable doubt.
Analysis
[15] In so far as the
present application concerns a failure by any of the individual
respondents to return to work, it seems to
me that any finding of
contempt in these circumstances would be at odds with one of the
primary purposes of contempt proceedings.
In these circumstances, the
principle referred to in
Naidu & others v Naidoo & another
1993(4) SA 542 (D) applies. In that case, Alexander J held:
“
By
the time, however, that the present matter was argued on 12 March
this particular dispute had ceased to exist. The sale has not
only
been cancelled but possession of the business handed back to the
Naidus. Counsel for the respondents submitted accordingly
that the
very basis on which the committal order depended had disappeared –
whatever the merits of the dispute- no longer
availed the applicants.
His contention rested squarely on the full Court decision of Cape
Times Ltd v Union Trades Directories
(Pty) Ltd
1956 (1) SA 105
(N).
As stated there, it was held that “a litigant has no locus
standi to seek an order for contempt arising out of a breach
of an
order obtained in a civil proceeding where the punishment is not
calculated to coerce compliance with the order
(at
643B-C)”
It is not disputed that
by the time the present application was argued, the strike had ended.
On the basis of the above authority,
I do not intend therefore to
consider whether any failure or refusal to return to work in itself
constituted contempt.
[16] It is trite that a
corporate body can be in contempt of a court order, and that
directors of companies and members of close
corporations can be
liable for contempt if they cause the body concerned to be in breach
of a court order (see
Ntombela v Herridge Hire and Haul CC &
another
[1993] 3 BLLR 253
(LC) and
Twentieth Century Fox
corporation & others v Playboy Films Pty) ltd
& another
1978 (3) SA 22
(W)).
[17] The union was
represented by Thobejane and Makgoba , both senior officials, in the
discussions held with the applicant’s
management on the morning
of 19 October. The evidence establishes beyond a reasonable doubt
that both Thobejane and Makgoba were
aware of the court order when
they arrived at the applicant’s premises on the morning of 19
October, but that they nevertheless
initiated a discussion with the
applicant’s management in which they placed preconditions on a
return to work by the striking
employees. This was clearly a breach
of the order, which required the striking employees to return to work
unconditionally, and
which required the union not to encourage
further participation in the strike. It was only after the attempt to
negotiate the terms
of a return to work failed that during the
mid-afternoon of 19 October, that the union delegation advised the
striking employees
to return to work.
[18] In my view, it was
incumbent on the union delegation, given the terms of the interim
order, and in particular the interim interdict
against encouraging or
inciting the striking employees from continuing their strike, to have
unequivocally advised their members
to return to work. To use the
opportunity of the meeting with management to attempt to negotiate
conditions attaching to a return
to work was a wilful and
mala
fide
defiance of the order.
[19] It does not assist
the general secretary of the union to raise the defence (which he
appears to do) that the union did not
sanction the strike and that it
was therefore not in contempt of the court order. If that were so, it
would not have been open
to Thobejane and Makgoba to continue to use
the strike as a bargaining chip to secure the demands that they
tabled in their meetings
with the applicant’s management. In so
far as the union relies on its constitution and a memorandum
addressed to union officials
on 19 October, in my view, this does not
assist the union. The existence of the constitution and the fact that
the strike that
is the subject of these proceedings was called other
than in accordance with its terms does not necessarily mean that the
union
did not at least tacitly support the strike that took place on
18 and 19 October 2010. It is significant that at no stage did the
union contact the applicant to distance itself from the strike
action. As I have already found, the actions of the union’s
deputy general secretary and organiser on 19 October were to continue
to use the strike as leverage to obtain concessions from
the
applicant’s management despite the clear terms of the order.
[20] On this basis, the
union acted in contempt of the order granted on 18 October, as did
Thobejane and Makgoba in their capacities
as union officials. For the
same reasons, those of the individual respondents who were part of
the union delegation, in their capacity
as shop stewards, are in
contempt. On the papers, these persons are identified as Zungu and
Mbanyatha.
[21] I make no finding in
respect of those individual respondents who were not part of the
union delegation. Radebe avers that he
remained at home until the
afternoon of 19
October, when he returned to the
applicant’s premises after having had the revelation that the
interpretation initially placed
on the court order was incorrect, and
that the order required the striking workers to return to work
immediately. Radebe’s
version conflicts with the versions
deposed to by others, notably Thobejane and Makgoba. I have no doubt
that the version proffered
by Radebe is a pack of lies, but the
evidence does not establish beyond reasonable doubt that he acted in
breach of the court order.
Similarly, the evidence against Lesapo,
whose affidavit is woefully vague and inadequate, does not disclose
any wilful attempt
to act in breach of the order. I wish to emphasise
that this narrow finding does not serve to exonerate either Radebe or
Lesapo
from any other misconduct that they may have committed during
the course of 18 and 19 October.
[22] In relation to
sanction, in
SA Police Services v Police and Prisons Civil Rights
Union others (2007) 28
ILJ 2611 (LC), this court issued a rule
nisi calling on the respondents to show cause why the union should
not pay a fine of R500
000 for what was alleged in that instance to
be its contempt of court. In
Security Services Employers’
Organisation & others v SATAWU & others (2007) 28 ILJ,
1134
(LC), this court imposed a fine of R500 000 on a union for its
contempt, and sentenced union officials to imprisonment for
6 months,
suspending sentences in each case for 5 years. In the present matter,
I must necessarily take into account the fact that
the effect of the
contempt was to protract the strike by a day, and that it is not
disputed that the applicant suffered a loss
in revenue of some R1.05
million as a consequence.
[23] Finally, in relation
to costs, this court has a broad discretion in terms of s 162 of the
Act to make costs orders according
to the requirements of the law and
fairness. In the present matter, I must necessarily take into account
the conduct of the respondents
in opposing the application for
contempt. The terms of the order granted on 19 October were such that
the respondents were called
upon to appear on 22 October 2010. On
that date, the application was postponed at the respondents request
to 27 October. The matter
was again postponed to 2 November, and then
again to 10 November to enable the individual respondents the
opportunity to place
their versions before the court. The respondents
failed to meet the time frames fixed by the order granted on 2
November. The unprofessional
conduct of the case aside, I must also
take into account the conduct of the union’s officials and
office bearers, and what
appears to be a culture in terms of which
orders made by this court appear to be secondary to the seeking of
bargained advantages.
There is no reason why the applicant should be
required to bear the costs of these proceedings.
I accordingly make the
following order:
1 The first respondent
and the following persons are found to be in contempt of the order
granted by this court on 18 October 2010:
Nthandyenkosi Zungu
Sinethemba Mbanyata
Edward Thobejane
Albert Makgoba.
2. The first respondent
is ordered to pay a fine of R100 000, suspended for a period of 5
years on condition that the first respondent
is not found guilty
during that period of contempt of an order of this court.
3. The persons named in
paragraph 1 of this order are sentenced to imprisonment for a period
of 3 months, which sentence is wholly
suspended for a period of five
years on condition that the named persons are not during that period
found guilty of contempt of
an order of this court.
4. The first respondent
is to pay the costs of these proceedings, including the wasted costs
of 22 October 2010, 27 October 2010,
and 2 November 2010, when the
proceedings were postponed.
ANDRE VAN NIEKERK
JUDGE OF THE LABOUR
COURT
Date of hearing 10
November 2010
Date of judgment 10
August 2011
Appearances:
For the applicant Ms E
Louw ENS Attorneys
For the respondents:
Noveni Eddy Kubayi Inc Attorneys