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[2011] ZALCJHB 114
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Tsogo Sun Casinos (Pty) Ltd t/a Montecasino v Future of South African Workers Union and Others (J2510/11) [2011] ZALCJHB 114; (2012) 33 ILJ 998 (LC) (5 December 2011)
REPUBLIC OF SOUTH AFRICA
Reportable
Of
interest to other judges
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
CASE
NO:
J 2510/11
In the matter between:
TSOGO
SUN CASINOS (PTY) LTD
t/a
MONTECASINO
…..............................................................................
Applicant
and
FUTURE
OF SOUTH AFRICA WORKERS’
UNION
….................................................................................
1st
Respondent
THE
PERSONS MENTIONED IN
ANNEXURE ‘A’ TO
THE NOTICE OF MOTION 2
ND
to further Respondents
Heard
: 2 December 2011
Delivered
: 5 December 2011
Summary:
Return date of rule nisi; issue of costs to be
decided. Conduct of striking workers taken into account in the
exercise of discretion
in relation to costs order.
JUDGMENT
VAN NIEKERK J
Introduction
[1] This is the return date of a rule
nisi
issued by Basson J
on 5 November 2011 following an urgent application filed by the
applicant. On the return date, the applicant
sought the discharge of
the rule, and an order for costs against the respondents. The
respondents opposed the granting of any costs
order.
The order
[2] The order granted by Basson J
inter alia
assumed the form
of an interim interdict restraining the respondents from obstructing
vehicles and persons from entering or leaving
the applicant’s
premises, protesting or being present in Montecasino Boulevard,
interfering with traffic or persons entering
or leaving Montecasino
Boulevard, picketing within 500 m of the premises, intimidating or
assaulting persons or damaging property
at or near the premises. The
return date was fixed for 2 December 2011.
[3] On 1 December 2011, the applicant filed a further supplementary
affidavit in which the deponent, the applicant’s director
of
labour relations, summarised the history of the dispute and submitted
that in the absence of a denial of the unlawful conduct
referred to
in the affidavits filed on the applicant’s behalf, it was
appropriate that the respondents be ordered to pay
the costs of the
application. The respondents filed an answering affidavit on 2
December 2011, in which they denied any liability
for the costs of
the proceedings..
Factual background
[4] It is not necessary for present purposes to set out the facts at
any level of detail. Montecasino is a casino and entertainment
complex situated in the Fourways area and which is owned by the
applicant. The individual respondents were engaged in a protected
strike called in support of a wage dispute between the applicant and
the first respondent (the union). The applicant and the union
had
concluded a picketing agreement, which spelled out in some detail the
manner in which the second to further respondents (the
individual
respondents) would exercise their right to picket in support of the
strike. Regrettably, the picketing that occurred
was anything but
peaceful. In the founding papers, the applicant averred that the
individual respondents were acting in breach
of the picketing
agreement by engaging in a variety of criminal acts, including
assault, theft, malicious damage to property, and
blocking access to
and egress from the applicant’s premises. The conduct described
in the founding and supplementary affidavits
includes the emptying of
rubbish bins onto the road outside Montecasino, burning tyres on the
road, blocking the road with 20 litre
water bottles, throwing packets
of broken glass onto the road, throwing bricks at members of the
SAPS, damaging vehicles, dragging
passengers from vehicles and
assaulting them, rolling concrete dustbins into Montecasino
Boulevard, damaging patron’s vehicles,
and assaulting persons
in the vicinity of Montecasino. The applicant’s attempts to
resolve the issue of strike-related violence
by agreement with the
first respondent failed – an undertaking given by the first
respondent at the applicant’s request
proved to be worthless.
Ultimately, intervention by the SAPS was necessary, but even this did
not deter the individual respondents.
[5] During this period, the applicant took a number of steps to
protect its interests. The picketing agreement to which I have
referred was signed on 15 October 2011. From 18 October to 4 November
2011, the applicant advised the union on several occasions
that both
the union and the individual respondents were in material breach of
the agreement. On 20 October the applicant referred
a dispute to the
CCMA in which it sought a determination that the union and the
individual respondents comply with the picketing
agreement. A
conciliation hearing was convened for 27 October 2011. At the
hearing, the union and the individual respondents did
not dispute the
evidence of the breaches of the agreement, but instead accused the
applicant of ‘provoking’ them, and
demanded that video
surveillance cease. The CCMA was unable to resolve the dispute, and
the matter was referred to this court.
[6] On 9 November 20112 the applicant filed a supplementary affidavit
in these proceedings, with photographs and video footage
of the
damage caused by the individual respondents. On 11 November 2011, the
parties concluded an agreement in terms of which a
return to work was
agreed. On 29 November 2011, the applicant’s attorneys wrote to
the respondents’ attorney to enquire
whether the respondents
would tender the costs of these proceedings.
[7] The respondents’ main complaint on the return day, it
appears, is that they did not receive the founding papers, since
the
second respondent (Motha) was in East London and the respondents’
attorney not in his office (5 November was a Saturday).
On this
basis, the respondents contend that they were not in a position to
defend the proceedings, and should not be held liable
for the costs.
Secondly, the respondents contend that they are individuals earning a
relatively low income, and cannot therefore
be ordered to pay the
applicants costs. Thirdly, the respondents contend that the
respondents’ conduct is no longer in dispute,
and that they
cannot therefore be liable for costs. Finally, on the return date, Mr
Levin, who appeared for the respondents, submitted
that the existence
of a collective bargaining relationship between the parties militated
against any order for costs. What resulted
was the exchange of
affidavits on the issue of costs to which I have referred.
[8] Section 162 of the LRA entitles this court to make an order
according to the requirements of the law and fairness. This is
a
broad discretion, and one that must be exercised judicially. In my
view, for the reasons that follow, none of the submissions
advanced
on behalf of the respondents have merit, and there is no basis,
having regard to the law and fairness, why the respondents
should not
be liable for the applicant’s costs
Analysis
[9] To the extent that the respondents deny receiving a complete set
of the papers on the day prior to the moving of the application,
it
is not seriously disputed that the notice of motion was served on the
union and individual respondents at 16h15 on 5 November
2011. It is
also not disputed that Motha was contacted telephonically at 15h06
and told that the application would be heard as
a matter of urgency
at 17h00, nor is it disputed that Lonie advised Motha to arrange for
other union officials, Mhlanga or Mshengu,
to attend at court. It is
not denied that after the rule
nisi
was issued, copies of the
order were delivered to those of the individual respondents who were
assembled at the circle outside
Montecasino, and that attempts to
hand over the copies of the order to them were thwarted. It is also
not denied that the individual
respondents present proceeded to tear
up the copies of the order.
[10] The explanation for the respondents’ failure to oppose the
application (i.e. that they had not received a full copy
of the
papers) is fatuous – the respondents had been made aware of the
proceedings and were fully entitled to approach this
court with a
request to be allowed reasonable time within which to file an
answering affidavit. In any event, the respondents were
perfectly
entitled to anticipate the return date should they have felt that the
order as granted in circumstances where they did
not receive adequate
notice. They failed to do so.
[11] The fact that the individual respondents are workers earning a
relatively low income is of no consequence. They have not denied
participating in the unlawful conduct alleged by the applicant, and
they must bear the consequences of their actions. The fact
that they
have since the date of the order returned to work is neither here nor
there. The issue is not that there was an agreed
return to work –
the issue is whether the respondents’ conduct necessitated an
application to this court and whether
it is fair, having regard to
all of the circumstances (including the respondents’ conduct
prior to the return to work), to
order them to bear the applicant’s
costs. The existence of a continued collective bargaining
relationship between the parties
and the potential prejudice to that
relationship that any order for costs might present is similarly
irrelevant in this instance.
The fact that the applicant pursues an
order for costs in itself is an indication that at least as far as
the applicant is concerned,
a future relationship with the first
respondent is would not be prejudiced on account of any order for
costs in these proceedings.
The respondents have not put up a cogent
case to the contrary. The applicant has expressed its intention to
seek damages against
the union and it members, and that criminal
proceedings had been initiated consequent of the conduct of the
individual respondents.
Those are obviously separate processes, and
the law must take its course in respect of each. For present
purposes, while the parties
will necessarily have to pick up the
pieces of a relationship that has been compromised on account of the
respondents’ conduct,
I fail to appreciate how the existence of
a collective bargaining relationship or its future course militates
against any award
of costs. There is certainly no evidence before me
to establish that a costs order may prove to be an obstacle to the
continuation
of a collective bargaining relationship, or that it will
unduly strain that relationship. On the contrary, in my view, an
order
for costs will have a salutary effect and serve to emphasise
for the individual respondents that the right to engage in collective
bargaining is not a licence to engage in collective brutality and for
the union and its officials, that responsibility for the
collective
requires individual action.
[12] Finally, and while this was not a matter specifically alluded to
by either party, the court must take into account interests
that lie
beyond the direct interests of the parties to this dispute. The
individual respondents misconducted themselves in the
most egregious
fashion, in a public place, with serious consequences for the
applicant, its patrons and others. Despite requests
to do so, the
union failed throughout to intervene, nor did its officials
demonstrate any form of leadership. The Supreme Court
of Appeal, in a
similar context, recently said the following:
The chilling effect of s
11(2)
(b)
described on behalf of the Union is not only
unsubstantiated but is
contradicted by the police and the City of Cape Town, who presented
unchallenged evidence that in their extensive
experience the
provisions of the Act have not deterred people from public assembly
and protest. If anything, the regularity of
public assembly and
protest in the 15 years of the existence of the Act proves the
contrary. The chilling effect that the provisions
of the Act should
rightly have is on unlawful behaviour that threatens the fabric of
civilised society and which undermines the
rule of law. In the past
the majority of the population was subjected to the tyranny of the
state. We cannot now be subjected to
the tyranny of the mob.
1
[13] This court will always intervene to protect both the right to
strike, and the right to peaceful picketing. This is an integral
part
of the court’s mandate, conferred by the Constitution and the
LRA. But the exercise of the right to strike is sullied
and
ultimately eclipsed when those who purport to exercise it engage in
acts of gratuitous violence in order to achieve their ends.
When the
tyranny of the mob displaces the peaceful exercise of economic
pressure as the means to the end of the resolution of a
labour
dispute, one must question whether a strike continues to serve its
purpose and thus whether it continues to enjoy protected
status.
[14] This court must necessarily express its displeasure in the
strongest possible terms against the misconduct that the individual
respondents do not deny having committed, and against unions that
refuse or fail to take all reasonable steps to prevent its
occurrence.
Had the applicant not specifically confined the relief
sought to an order for costs on the ordinary scale, I would have had
no
hesitation in granting an order for costs on the as between
attorney and own client.
For these reasons, I make the following order:
The rule nisi issued on 5 November 2011 is discharged.
The respondents are to pay the costs of these proceedings, jointly
and severally, the one paying the other to be absolved.
_______________________
André van Niekerk
Judge
APPEARANCES
APPLICANT: Mr. Clifford Levin, Clifford Levin Attorneys.
FIRST AND FURTHER RESPONDENTS: Adv AJS Redding SC, instructed by
Edward Nathan Sonnenburgs Attorneys.
1
See
South African
Transport and Allied Workers Union v Garvis & others
(007/
11) at par [50]).