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[2011] ZALCJHB 235
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Bytes Technology Group South Africa (Pty) Ltd v South African Commercial Catering and Allied Workers Union and Others (J1665/11) [2011] ZALCJHB 235 (25 August 2011)
LABOUR COURT OF SOUTH AFRICA
(HELD AT BRAAMFONTEIN
Case: J1665/11
In the matter between:
BYTES TECHNOLOGIES GROUP
SOUTH AFRICA (PTY) LTD
..................................................................
Applicant
and
THE SOUTH AFRICAN COMMERCIAL
CATERING
AND ALLIED WORKERS UNION
............................................
First
Respondent
PHILLIMON NYEMBE & OTHERS
..................
Second to further
Respondents
JUDGMENT
LAGRANGE, J:
Having
considered the matter, I have reached the conclusions, which are
summarised below, and accordingly I grant the consequential
relief
set out below. More detailed reasons for my judgment will be
provided shortly.
Conclusions
For
the purposes of interdicting unlawful conduct in the context of a
protected strike, as opposed to conduct in support of an
unprotected
strike, it is not necessary for an applicant to satisfy the
pre-requisites of Section 68(2) of the Labour Relations
Act 66 of
1995 (‘the LRA’).
It
is generally undesirable for this court to get involved in
determining detailed picketing arrangements because the primary
institution for addressing this is the Commission for Conciliation,
Mediation and Arbitration in terms of the provisions of Section
69
of the LRA, though the court may unavoidably have to set some
minimum parameters where the conduct of striking workers exceeds
the
bounds of a peaceful demonstration and urgent relief is justified,
or when adjudicating a dispute in terms of Section 69(11)
of the
LRA.
In
this matter, I believe that on an assessment of the evidence
available, the applicant has demonstrated that it has a clear
right
to not to have its business interfered with by unlawful action of
the kind in question directed against its employees or
third
parties. This is distinct from the lawful disruption of a business
that is an ordinary consequence of protected strike
action and
legitimate conduct in support of the strike.
In
this instance, I am satisfied that the applicant has demonstrated
that it has a reasonable apprehension that the strikers gathered
outside its premises might prevent the entrance and exit of persons
and vehicles from its premises and might obstruct the passage
of
vehicles on the way to its premises in the streets where its
premises are situated. I am also satisfied that it has a reasonable
apprehension that persons seeking to enter its premises might be
intimidated by direct or indirect threats not to do so.
I
also accept that the measures set out in the interim order went
beyond what was required and may have prevented any meaningful
peaceful demonstration by the strikers. Accordingly, a modification
of the relief is necessary.
Order
In
the circumstances, the following order replaces the interim order
handed down on 17 August 2011:
The
Individual Respondents whose names appear on Annexure “A”
to the Notice of Motion are interdicted and restrained
from:
attending
or encroaching within a radius of 30 metres from the entrance to
the applicant’s premises in Selby, Midrand
and Pretoria.
obstructing
the entrance and exit of vehicles and persons to and from the
applicants’ premises by blocking access to
the
abovementioned premises with vehicles or by standing in the path
of vehicles;
making
any threats to persons approaching or leaving the applicant’s
premises, and
brandishing
weapons, sticks or knobkerries or other objects in a threatening
manner at persons approaching or leaving the
applicant’s
premises, or passing along the street in which the applicant’s
premises are situated.
The
Individual Respondents mentioned above are not prevented from:
Attempting
to peaceably persuade third parties entering or exiting the
applicant’s premises not to have dealings with
the
applicant’s business, or to otherwise lawfully support the
strike.
Chanting,
singing or otherwise demonstrating their support for the strike
and encouraging third parties to do so, subject
to the provisions
of paragraph a above.
The
provisions of this order relating to the distance the individual
respondents must be from the entrance to the applicant’s
premises in paragraph a above, are subject to variation in terms of
any agreement reached or rules determined in terms of section
69 of
the LRA.
The
parties shall pay their own costs.
__________________________________
R LAGRANGE, J
JUDGE OF THE LABOUR COURT
Date of hearing: 24 August 2011
Date of judgment: 25 August 2011