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[2011] ZALCCT 20
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Royal Serve Cleaning (Pty) Ltd v Democratic Union of Security Workers and Others (C498/2011) [2011] ZALCCT 20; [2011] 12 BLLR 1227 (LC); (2012) 33 ILJ 448 (LC) (19 August 2011)
REPORTABLE
Case no: C498/2011
IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT CAPE TOWN
In the matter between:
ROYALSERVE CLEANING (PROPRIETARY) LIMITED
….............................
Applicant
And
THE DEMOCRATIC UNION OF SECURITY WORKERS
…...............
First
Respondent
THE PERSONS LISTED IN ANNEXURE A
…...........
Second
to Further Respondents
Date of hearing: 16 August 2011
Date of judgment: 19 August 2011
JUDGMENT
CONRADIE AJ:
On 14 July 2011 this Court issued a rule
nisi
calling upon
the Respondents to show cause, if any, on 15 August 2011 why an
order in the following terms should not be made
final:
“
Ordering
the Respondents to comply with the picketing rules issued on 8 July
2011 by the CCMA;
Interdicting and restraining the First Respondent from calling
upon, inciting or encouraging its members who are employed by the
Applicant to participate in unlawfully gathering or demonstrating
on the premises of the V & A Waterfront and the Applicant’s
premises at Cnr Howard Drive and Gardener Way, Pinelands, Cape
Town, in breach of the picketing rules established by the CCMA;
Interdicting and retraining the Second to Further Respondents
from participating in any unlawful gathering or demonstration on
the premises of the V & A Waterfront and the Applicant’s
premises at Cnr Howard Drive and Gardener Way, Pinelands,
Cape
Town, in breach of the picketing rules established by the CCMA;
Interdicting and restraining the Second to Further Respondents
from marching through the premises of the V & A Waterfront and
the Applicant’s premises at Cnr Howard Drive and Gardener
Way, Pinelands, Cape Town;
Interdicting and restraining the Second to Further Respondents
from unlawfully disrupting and disturbing the peace at the premises
of the V & A Waterfront including the overturning of refuse
bins and obstructing members of the public in the ordinary
course
of their visit or business to the V & A Waterfront; and the
Applicant’s premises at Cnr Howard Drive and Gardener
Way,
Pinelands, Cape Town;
Interdicting and restraining the Second to Further Respondents
from in any way interfering with and obstructing access to an
egress from the V & A Waterfront and the Applicant’s
aforesaid premises;
Interdicting and restraining the Second and Further Respondents
from intimidating, assaulting or threatening any employee of the
Applicant;
Authorising the South African Police Service to take such action
as it may lawfully be permitted to take in the event that any
of
the Second to Further Respondents refuse to comply with the
instructions of the Sheriff or the obstruction of the Sheriff
in
the execution of his duties, save that this Order shall not
preclude or limit the South African Police Service from exercising
any power which it may have in terms of any law; and
That the provisions of paragraphs 1.1 to 1.7 hereinabove shall
operate as an interim interdict pending the return day of this
application.
That the costs of this Application shall stand over to the return
day.
That pending the return date the parties agree to be bound by,
implement and do all things necessary to resolve the dispute between
them by way of the process set out in the agreement annexed hereto
marked “A”.”
On the return date the Applicants
sought confirmation of the rule with costs. Ms. Harvey who appeared
on behalf of the Respondents
argued that final relief should not be
granted as the requirements for a final order has not been met. In
this regard she referred
to the well-established requirements as set
out in
Setlogelo vs. Setlogelo
1914 AD 221
at 227
.
These include that the Applicant must show a clear right, an injury
actually committed or reasonably apprehended, and the absence
of
another satisfactory remedy. Ms Harvey further argued that the facts
upon which the Court must base its decision are those
stated by the
Respondents, together with those alleged by the Applicant and
admitted by the Respondents.
On the issue of the facts stated on the affidavits by the respective
parties, it is necessary to mention that Mr Bizo deposed
to two
affidavits on behalf of the Respondents. The first affidavit was
filed on 14 July 2011 and the second, more detailed affidavit,
was
filed on 10 August 2011. In the second affidavit Mr Bizo alleges
that when he deposed to the first affidavit he did not have
sight of
a supplementary affidavit filed by Mr Jacobs on behalf of the
Applicant on 13 July 2011. I fail to understand how Mr
Bizo can make
this statement under oath when it is clear from his first affidavit
that he in fact deals with the issues raised
by Mr Hendricks in his
supplementary affidavit. In particular he refers to a fire that was
made outside the Applicant’s
premises in Pinelands. This
information is only contained in Mr Jacob’s supplementary
affidavit and as such Mr Bizo must
have had sight of it.
Clear Right
I am of the view that the Applicant has established a clear right in
that it is entitled to expect the Respondents to behave
in an
orderly and lawful manner in pursuance of their strike.
Specifically, they are entitled to expect the Respondents to abide
by picketing rules, whether agreed to between the parties, or
determined by the CCMA.
Part of the Applicant’s complaint is that the Respondents
engaged in picketing in areas at the V & A Waterfront where
they
were not entitled to picket in terms of the picketing rules.
I find it hard to accept the Respondents’ explanation that
they were not aware of the picketing rules when the strike commenced
on 12 July 2011, as these rules were sent to the General Secretary
of the First Respondent on 8 July 2011. The issue of picketing
at
the V & A Waterfront was a controversial one and in fact is what
led to the CCMA being called upon to determine picketing
rules.
It is incumbent on any trade union whose members are going to engage
in picketing as part of their strike to ensure that the
picketing is
in compliance with whatever agreement is in place, or in terms of
any determination made by the CCMA. I also find
it alarming that the
First Respondent’s General Secretary who received the
picketing rules did not provide these rules
timeously to the
officials of the union who were involved in co-ordinating and
marshalling the strike. This is grossly negligent
behaviour on the
part of the General Secretary given that strike action can have
serious consequences for striking employees,
their employer and the
public in general.
It also appears from the papers that there was an inspection
in
loco
at the V & A Waterfront. In addition to this the
Applicant issued a communiqué confirming that employees would
not
be allowed to picket on the premises of the V & A Waterfront
and that any such picket would be unlawful and that the Applicant
reserved the right to take disciplinary action against those
employees who unlawfully gathered or demonstrated at the V &
A
Waterfront. According to the Applicant this was communicated to the
employees and the union members at approximately 10:30
on 8 July
2011 and 14:30 on 9 July 2011 and placed on all notice boards in the
changing rooms and dining area at the V &
A Waterfront.
An Injury Actually Committed or Reasonably Apprehended
The Respondents also argued that the Applicant has not shown any
injury that was actually committed. On the version put up by
the
Applicants it is clear that they have met this requirement in that
striking employees were gathered at the V & A Waterfront
in
areas which were off limits in terms of the picketing rules. It has
also been established by the Applicant that the commercial
relationship with its client, the V & A Waterfront, could be
affected by the unlawful conduct of the Respondents given the
tough
stance which the V & A Waterfront clearly took in respect of the
strike action on its premises.
I do not accept Ms Harvey’s argument that the Applicant was
over hasty in launching this application or did so at the behest
of
its client. The Applicant was perfectly within its rights to seek to
protect its interest at the earliest possible indication
that
conduct in breach of the picketing rules was being committed. As
soon as an employer is faced with the prospect of unlawful
conduct
taking place in furtherance of industrial action, it is entitled to
approach this Court for relief provided that it meets
all of the
requirements for such relief.
Alternative Remedy
I also do not consider the provision in the picketing rules to the
effect that “
The Convenor, Shop Stewards and Company
Managers must meet as soon as possible to endeavour to resolve any
alleged breach of these
rules by either party”
, as an
alternative remedy which precludes this court from granting relief.
This is not a reasonable alternative in circumstances
where a party
to the agreement has already acted in flagrant violation of the
rules in question. This is particularly the case
where any unlawful
conduct needs to be addressed without any further delay.
In the circumstances I am of the view that the rule
nisi
must
be confirmed. As far as the issue of costs are concerned, even
though the Respondents did not oppose the granting of the
interim
order, other than the issue of costs in respect of that order, they
did oppose the confirmation of the rule
nisi.
Although there
was some debate about the existence of a relationship between the
parties I am of the view that even if there is
an on-going
relationship, I can see no reason why the Applicant should not be
entitled to its costs in this matter. If the relationship
between
the parties is indeed important to the First Respondent, then it
should be expected that they would do everything possible
to ensure
that picketing rules are communicated and any picketing is in terms
of those rules. The fact that Mr Bizo was not honest
in his second
affidavit is also a consideration in awarding costs against the
Respondent’s.
In the circumstances I make the following Order:
The rule
nisi
issued on 14 July 2011 is hereby confirmed;
The Respondents are ordered to pay the costs.
CONRADIE AJ
________________________
Appearances:
For the applicant: R Van Voore
Instructed by: Bowman Gilfillan Inc.
For the respondent: S Harvey
Instructed by: Marieke Van Rooyen Attorneys