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[2011] ZALCCT 59
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ADT Security (Pty) Ltd v National Security & Unqualified Workers Union and Others (C671/2011) [2011] ZALCCT 59 (2 September 2011)
IN THE LABOUR COURT OF SOUTH AFRICA
(HELD IN CAPE TOWN)
CASE NUMBER
: C671/2011
DATE
: 2 SEPTEMBER 2011
Reportable
In the matter between:
ADT SECURITY (PTY) LIMITED
......................................................................
Applicant
and
THE NATIONAL SECURITY & UNQUALIFIED
WORKERS UNION & OTHERS
.................................................................
Respondents
J U D G M E N T
___________________________________________________
STEENKAMP, J
:
This is an urgent application between ADT Security (Pty) Limited, the
applicant, and the National Security & Unqualified Workers
Union
and Others. It is an urgent application brought this morning to grant
final relief against the Union and its members in terms
of which a
march scheduled to take place on Monday 5 September 2011 between
09:30 and 13:30 at the applicant’s place of business
is sought
to be interdicted. It is now 15:00 on Friday, 2 September. Given that
the march is due to take place on Monday, I will
give judgment
ex
tempore
, and will give brief reasons for my judgment.
Firstly, concerning urgency, it is clear, given that the march is to
take place on Monday, that the matter is urgent. I will return
to the
events leading up to the march in a moment. The prior question though
is whether this court has jurisdiction to hear the
present
application.
In its argument that the court does have jurisdiction, Mr
Venter
,
for the applicant, referred,
inter alia,
to the judgment of
the Constitutional Court in
Gcaba v Minister of Safety &
Security
2010 (1) SA 238
(CC) and
Chirwa v Transnet
2008
(4) SA 368
(CC).
In considering the question of jurisdiction, I have considered the
dicta of the Constitutional Court in those cases, but the question
goes further, also when considering the merits of the application
itself. In that regard I wish to refer to the dictum of
Nugent
JA in
Makhanya v University of Zululand
2010 (1) SA 62
(SCA).
In
Makhanya
, Nugent JA distinguished that case from the ratio
in
Chirwa
. On his reading of
Chirwa
the issue was
essentially not one of jurisdiction, but relating to the cause of
action. Nugent JA referred to the rights that the
Labour Relations
Act
1
creates for employees, including the right not to be unfairly
dismissed and not to be subjected to unfair labour practices, as
“LRA
rights”. Yet, he pointed out, employees also have other rights
arising from general law. One is the right that
everyone has
emanating from the common law to insist on performance of a contract.
Another is the right that everyone has (emanating
from section 33 of
the Constitution and elaborated upon in the Promotion of
Administrative Justice Act
2
)
to just administrative action.
3
An LRA right, he says, is enforceable only in the CCMA or in the
Labour Court. The common law right is enforceable in the High
Court
and in the Labour Court. The constitutional right is enforceable in
the High Court and in the Labour Court. Nugent JA commented
that it
is not unusual for two rights to be asserted arising from the same
facts. A claimant could assert two claims, each of which
is capable
of being brought in a different forum. Whether the claim will succeed
is another matter, but that is irrelevant to the
jurisdictional
question.
4
He made two further observations
5
:
“
The
first is that the claim that is before a court is a matter of fact.
When a claimant says that the claim arises from the infringement
of
the common law right to enforce a contract, then that is the claim,
as a fact, and the court must deal with it accordingly.
When a
claimant says that the claim is to enforce a right that is created by
the LRA, then that is the claim that the court has
before it, as a
fact. When he or she says that the claim is to enforce a right
derived from the Constitution, then, as a fact,
that is the claim.
That the claim might be a bad claim is beside the point.”
It may also be useful to refer to the more recent judgment of
South
African Maritime Safety Authority v McKenzie
2010 (3) SA 601
(SCA). In a unanimous judgment of the Supreme Court of Appeal,
Wallis
AJA
6
commented as follows
7
:
“
Once
more, as in other cases that have come before this court, the plea,
so far as it purports to raise a jurisdictional challenge,
is
misdirected. As the Constitutional Court has reiterated in
Gcaba
v Minister of Safety & Security & Others
,
the question in such a case is whether the court has jurisdiction
over the pleaded claim and not whether it has jurisdiction over
some
other claim that has not been pleaded, but could possibly arise from
the same facts. In this case the particulars of claim
could not have
made it clearer that Mr McKenzie’s claim is for damages for
breach of contract.”
He further noted
8
:
“
We
must look at the provisions of the Act in question, its scope and its
object, and see whether it was intended when laying down
a special
remedy that that special remedy should exclude ordinary remedies. In
other words, we have no right to assume, merely
from the fact that a
special remedy is laid down in a statute as a remedy for a breach of
a right given under the statute, that
other remedies are necessarily
excluded.”
I refer to these judgments both in relation to jurisdiction and to
the merits of the application before me. The Union, represented
by
its general secretary, Mr
Mdineka
, raised the question as to
whether this court has jurisdiction. It appears to me that the nature
of this application is framed,
specifically when one has regard to
the accompanying founding affidavit, in a context where the applicant
suggests that the underlying
reason for the march that forms the
subject of the interdict relates to the relationship between employer
and employee. In those
circumstances it would appear to me that this
court does have jurisdiction. At the very least it may have
concurrent jurisdiction
with the High Court as explained by Nugent JA
in
Makhanya
. Whether the applicant is entitled to the relief
it seeks, is a different question.
Turning then to the merits of the application, it is useful to set
out the background to the application. After the Union had sought
organisational rights from the applicant, it became clear that the
applicant would not grant those rights on the basis that the
Union
was not sufficiently representative. The Union, however, rather than
resorting to power play in terms of the Labour Relations
Act or
referring a dispute to the CCMA in terms of section 21 of that Act,
applied to the Cape Town Municipality, which is the
third respondent,
on 8 August 2011 to have a gathering in terms of the Regulation of
Gatherings Act
9
.
The date of commencement of that Act was 15 November 1996. Contrary
to what Mr
Venter
argued, therefore, it is not a
pre-constitutional piece of legislation. I will return to that aspect
later.
In terms of the Gatherings Act, a “gathering” is defined
as any assembly, concourse or procession of more than 15 persons
in
or on any public road as defined in the Road Traffic Act 29 of 1989
or any other public place or premises, wholly or partly
open to the
air, and it includes,
inter alia
, a gathering held to hand
over petitions to any person or to mobilise or demonstrate support
for, or opposition to the views, principles,
policies, actions or
omissions of any person or body of persons or institution, including
any government administration or governmental
institution.
The Union applied to march to the premises of the applicant on
Monday, 5 September 2011, in terms of section 3 of that Act. It
was
given permission by the City on 29 August 2011. In terms of section
4(4) of the Gatherings Act, an agreement was reached between
the
responsible officer, as defined in the Act, and the convenor, as well
as authorised members of the South African Police Services
and the
Metro Police and the traffic services. The agreement sets out that
the gathering shall be in the form of a procession and
that it must
strictly follow a defined route.
It further specifies that one marshal must be appointed for every 10
participants in the procession and that all participants in
the
procession must remain unarmed and unmasked for the duration thereof.
It further specifies that participants in the procession
shall adhere
to all reasonable instructions relating to the free flow of traffic
issued by traffic officers en route and that the
convenor of the
gathering, or his delegate, shall remain available for the duration
of the procession to liaise with the operational
commander of the
South African Police Services contingent monitoring the procession.
Although there is some dispute as to how the applicant became aware
of the planned gathering, it is common cause that it was so
aware at
least by 29 August. The applicant requested the Union to cancel the
march and a meeting was held between the parties on
31 August 2011.
No resolution could be reached and on 1 September, that is yesterday,
the Union confirmed the following in a letter
to the applicant:
“
Re
March on ADT Cape Town Offices
We refer to the above and hereby
wish to inform you that all ADT officers who will be off on 5
September 2011, and those who will
be working nightshift on that day,
will be marching to your offices to hand over a memorandum. Please
avail somebody from your
office to accept our memorandum at 13:00 on
5 September 2011.”
It is common cause, as explained by Mr
Mdineka
at the hearing
today, that only those employees who are not on duty during the day
on 5 September 2011 will take part in the gathering.
The applicant
seeks to interdict the gathering on the basis that it is unlawful. I
will deal with that contention under the question
whether the
applicant has demonstrated a clear right, as it has to in order to
obtain final interdictory relief.
The basis for the applicant’s contention as set out in its
founding affidavit, is that although the Union obtained permission
under the Gatherings Act:
“
(i) The filing of a notice by [the Union]
in terms of section 3 of the Gatherings Act, is a contrived attempt
to circumvent the
scheme of the LRA and its specialised regulation of
the mechanisms of collective bargaining (such as conciliations,
arbitrations,
mediations, picketing and protest); and
(ii) The “march” cannot be permitted in terms of the
Gatherings Act, in that this would be unlawful upon a proper
construction of the LRA read together with the Gatherings Act.”
The starting point in considering whether the planned gathering is
indeed unlawful, is the Constitution. Section 17 of the Bill
of
Rights in the Constitution provides that:
“
Everyone has the right, peacefully and
unarmed, to assemble, to demonstrate, to picket and to present
petitions.”
It is clear that this right is extended to everyone and not just to
employees. The right is, however, limited by the provisions
of the
Gatherings Act. One of those limitations is the prerequisite to give
notice and to provide the necessary information to
the relevant local
authority. It is common cause that in this case such notice has been
given and that in fact the local authority,
that is the Cape Town
Municipality, has in fact agreed that the march or gathering can
proceed on Monday.
A further limitation imposed on gatherings by the Gatherings Act,
other than that it must be peaceful and unarmed, is set out in
section 11 of that Act. That is that if any riot damage occurs as a
result of such a gathering, the organisation under the auspices
of
which that gathering was held, will be liable for that riot damage.
The applicant submits that the Union does not have the required
representation to validate organisational rights in terms of the
Labour Relations Act. That factual contention is quite irrelevant to
the present case. That is something that must be decided in
terms of
section 21 of the Labour Relations Act.
In the case before me, the Union has specifically disavowed any
reliance on the Labour Relations Act. The right it seeks to exercise
is not premised on section 21 or section 64 or indeed any other
provision of the LRA. Instead the Union relies on section 17 of
the
Constitution as given effect to by the Gatherings Act. In this regard
the present case is distinguishable from those cases
to which
Cele
AJ referred in the unreported case of
ADT Security (Pty) Limited v
Satawu & Others
10
.
In that case, which appears at first glance to be on all fours with
the present ones, Cele AJ pointed out that the demands of
the union
in that case appeared to be demands that may be described as matters
of mutual interest and that they are work related
demands.
In holding that a planned march in those circumstances would be
unlawful, the learned judge relied on the cases of
TSI Holdings
(Pty) Limited v Numsa & Others
[2006] 7 BLLR 631
(LAC) and
SANDU v The Minister of Defence & Others
[2007] 9 BLLR 785
(CC). In
TSI Holdings
the Labour Appeal court held that a
demand by the trade union that a supervisor should be dismissed,
falls outside the category
of demands that can be supported by a
concerted refusal to work, retardation or obstruction of work
envisaged in the definition
of the word “strike” in
section 213 of the LRA. Accordingly it held that a strike in support
of that demand would not
be protected.
In the case before me, as I have pointed out, the Union does not seek
to embark on strike action; nor does the applicant contend
that the
gathering planned for Monday, 5 September 2011, falls within the
definition of a strike and that because the Union has
not followed
the procedure set out in section 64 of the LRA, such a strike would
be unprotected. The applicant simply contends
that the planned march
is unlawful. This case is, therefore, distinguishable from that in
TSI Holdings
. In
SANDU v The Minister of Defence
, the
question before the Constitutional Court turned on the constitutional
right to collective bargaining as set out in section
23(5) of the
Constitution. As
O’Regan
J pointed out in
SANDU
at paragraphs [51]-[52]:
“
[51]
Section 23(5) expressly provides that legislation may be enacted to
regulate collective bargaining. The question that arises
is whether a
litigant may bypass any legislation so enacted and rely directly on
the Constitution. In
NAPTOSA
& Others v Minister of Education of Western Cape & Others
,
the Cape High Court held that a litigant may not bypass the
provisions of the Labour Relations Act and rely directly on the
Constitution
without challenging the provisions of the Labour
Relations Act on constitutional grounds. The question of whether this
approach
is correct has since been left open by this court on two
subsequent occasions. Then, in
Minister
of Health v New Clicks South Africa (Pty) Limited (Treatment Action
Campaign and another as
amici
curiae
)
,
Ncgobo
J, writing a separate judgment, held that there was considerable
force in the approach taken in
NAPTOSA
.
He noted that if it were not to be followed, the result might well be
the creation of dual systems of jurisprudence under the
Constitution
and under legislation. In my view this approach is correct. Where
legislation is enacted to give effect to a constitutional
right, a
litigant may not bypass that legislation and rely directly on the
Constitution without challenging that legislation has
fallen short of
the constitutional standard.
“
[52]
Accordingly a litigant who seeks to assert his or her right to engage
in collective bargaining under section 23(5) should in
the first
place base his or her case on any legislation enacted to regulate the
right, not on section 23(5). If the legislation
is wanting in its
protection of the section 23(5) right in the litigant’s view,
then that legislation should be challenged
constitutionally. To
permit the litigant to ignore the legislation and rely direction on
the constitutional provision, would be
to fail to recognise the
important task conferred upon the legislature by the Constitution to
respect, protect, promote and fulfil
the rights in the Bill of
Rights. The proper approach to be followed should legislation not
have been enacted as contemplated by
section 23(5) need not be
considered now.”
In the present case the Union, as I have said, does not rely on its
rights protected by the Labour Relations Act, neither does
it rely on
the constitutional right to fair labour practices set out in section
23 of the Constitution. It does rely on section
17 of the
Constitution, but it does not do so directly -- it relies on the
applicable legislation which regulates the rights to
assembly,
demonstration, picket and petition as set out in section 17 of the
Constitution, namely the Gatherings Act. It has complied
with the
provisions of the Gatherings Act. If it does not adhere to the
provisions of that Act,
inter alia
by its members wreaking
havoc, damaging property or otherwise causing damage, then the
applicant has its remedies under section
11 of the Gatherings Act.
Despite what the applicant says, the Union in this case has carefully
stated that it is not relying on the right to collective
bargaining.
It is relying on the right to demonstration and gathering. On a
factual basis, this case may also be distinguished
from that in Cele
J’s judgment in
ADT v Satawu
, in that the Union has
pointed out in a letter to the applicant on 1 September 2011 that the
issues behind its contemplated gathering
or march are not limited to
Labour Relations Act issues -- the Union contended that there are
further issues that will be detailed
in the memorandum to be handed
over on the day of the march.
A further relevant factor to take into account is that, as I have
pointed out before, the workers that will take part in the march
on
Monday 5 September will be off duty. Therefore, their participation
in such a march will not be a breach of contract; neither
will it
form part of a strike as defined in the LRA. The workers will not be
withholding their labour. It appears to me, therefore,
that the
planned gathering may be inconvenient to the applicant and it may
even be said to be contrary to the spirit of the Labour
Relations Act
insofar as the Union could also have sought to embark on a protected
strike and did not do so, but that does not
make the planned
gathering unlawful. The gathering is clearly lawful in terms of the
provisions of the Gatherings Act. That Act
limits the constitutional
rights set out in section 17, only to the extent necessary. It would
be undesirable for this court, where
legislation exists that limits a
constitutional right, to limit that right further.
As Stuart Woolman points out in the chapter on Freedom of Assembly in
The Constitutional Law of South Africa
11
,
and also in
The Bill of Rights Handbook
12
:
“
Protests,
assemblies and mass demonstrations played a central role in South
African liberation politics. Now that the battle for
liberation has
been won and all possess the franchise, there might be a sense that
demonstrations have diminished. In reach and
frequency, they have.
Nevertheless, mass protests continue to be an important form for
political engagement. Organised labour,
landless people,
anti-privatisation movements, students, squatters and even the police
have used demonstrations to press their
demands. The continued
vitality of assembly in the newish South Africa testifies to its
essential role in any liberal democracy.”
And in a different context he then quotes from the Constitutional
Court
dictum
in
S v Mamobolo
[2001] ZACC 17
;
2001 (3) SA 409
(CC) at
paragraph
[50]
:
“
That
freedom to speak one’s mind is now an inherent quality of the
type of society contemplated by the Constitution as a whole
and is
specifically promoted by the freedoms of conscience, expression,
assembly, association and political participation protected
by
sections 15-19 of the Bill of Rights.”
Given that those protected constitutional rights are limited by the
Gatherings Act, it is not open to this court to limit the right
further and I conclude that the planned gathering is not unlawful.
There is also the further question of whether there is a real
apprehension of irreparable harm. In this regard the applicant says
in its founding affidavit that the harm it foresees is that it will
be disrupted in the performance of its obligations to provide
security services to its customers as the march may prevent call
centre and control room employees from entering the company’s
premises. That harm, although foreseeable, appears to me to be
remote. This is not an uncontrolled gathering, but one that has
been
agreed to by the relevant enforcement authorities and will be closely
monitored by the South African Police Services, the
Metro Police and
the traffic police.
If the marshals appointed by the Union do not abide by their
obligations under the agreement and the Act, any harm caused is not
irreparable in that the applicant can resort to the provisions of
section 11 of the Gatherings Act to hold the Union responsible
for
any damages suffered. That factor is also to be considered under the
heading of whether the applicant has an alternative remedy:
1. The applicant had an alternative remedy in that it could have
sought to review the permission granted by the City Council and
to
have it set aside. It has elected not to do so.
2. Should any harm be caused, as I have pointed out, it has its
remedies under section 11 of the Gatherings Act.
3. Should any employees, who are meant to be on duty, take part in
the gathering, those employees can be disciplined in the normal
course, as they would be absent from their workplace without
permission. It is common cause that they will not be participating
in
a protected strike and, therefore, they would not enjoy the
protections set out in section 67 of the Labour Relations Act.
In conclusion then, even if this court does have jurisdiction to hear
the present application, the applicant has not satisfied
the
requirements for a final interdict.
13
IN THOSE CIRCUMSTANCES THE APPLICATION IS DISMISSED
.
There is no order as to costs.
______________________
STEENKAMP, J
For the applicant: Adv PA Venter instructed by Eversheds.
For the
respondents: Mr H Mdineka (trade union official).
1
Act
66 0f 1995 (the LRA).
2
Act
3 of 2000 (PAJA).
3
Makhanya
para [11].
4
Makhanya
para [39].
5
Para
[71].
6
As
he then was.
7
SAMSA
v McKenzie
p
ara [7].
8
SAMSA
v McKenzie
para [12].
9
Act
205 of 1993.
10
Case
number J1099/08 of 13 June 2008 (Labour Court, Johannesburg).
11
2
nd
ed p 43.1.
12
Ian
Curry and Johan de Waal, 5
th
Edition 2005, at paragraph
17.1 on page 396.
13
As
summarised in
Setlogelo v Setlogelo
1914
AD 221
and followed by this court in innumerable subsequent cases.