About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2012
>>
[2012] ZALCJHB 32
|
|
Harmony Gold Mining Co Ltd v National Union of Mineworkers and Others (J367/12) [2012] ZALCJHB 32; (2012) 33 ILJ 2609 (LC) (14 March 2012)
REPUBLIC OF SOUTH
AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
reportable
case
no: J367/12
In the matter between:
HARMONY GOLD MINING CO
LIMITED
….....................................................
Applicant
[TARGET MINE]
and
NATIONAL UNION OF
MINEWORKERS
….......................................
First
Respondent
THOSE PERSON WHOSE
NAMES
ARE LISTED IN ANNEXURE
“A” HERETO
…............................
Second
Respondents
Heard
:
3 March
2012
Order: 3 March 2012
Reasons: 14 March 2012
Summary:
“
Belt
riding” is a condition of service. Strike is unprotected. Rule
Nisi confirmed.
JUDGMENT
AC BASSON J
[1] This is the return
date of a Rule Nisi issued by my learned brother Molahlehi, J on 15
February 2012 in terms of which the Court
-
declared the work
stoppage, alternatively strike action which the second and further
respondents intended to embark upon on 15
February 2012 at 18H00 to
constitute an unlawful work stoppage, alternatively unlawful and
unprotected industrial action;
interdicted and
restrained the second and further respondents from participating in,
promoting or inciting such unlawful work
stoppage, alternatively
such unprotected strike action against the applicant in support of
their demand that the applicant stops
the use of the ‘conveyor
belt as a mode of transport for man riding’; and/or their
demand that the applicant uses
buses to transport employees in place
of belt riding; and/or their unlawful demand that the applicant
removes Mr Tshediso Azel
Mantje from his position at the mine
forthwith.
interdicted and
restrained the second and further respondents from promoting or
inciting any actions in contemplation or furtherance
of such work
stoppage alternatively strike;
interdicted and
restrained the first respondent from promoting or inciting such work
stoppage alternatively strike action against
the applicant and
promoting or inciting any actions in contemplation or furtherance of
such work stoppage alternatively strike;
ordered such respondents
who oppose this application to pay the costs of this application,
jointly and severally, the one paying
the others to be absolved.
The applicant seeks
confirmation of the Rule.
[2] The applicant,
Harmony Gold Mining Co Ltd (Target Mine) conducts gold mining
operations at various sites. The present application
relates to the
Target Mine in the magisterial district of Welkom, Free State
(hereinafter referred to as “the mine”).
The mine has two
operational shafts: Target 1 and Target 3 shafts as well as a plant.
The first respondent is the National Union
of Mine Workers
(hereinafter referred to as “NUM”). NUM represents the
second and further respondents (“the individual
respondents”).
They number approximately 2361 and are all members of the NUM.
Brief background to
this dispute
Belt riding
[3] It appears from the
founding affidavit that the applicant bought the Target mine from
Avgold Ltd in 2003. From the establishment
of the mine in the mid
90’s, the mine used a conveyer belt system which runs down an
incline shaft (Target Shaft 1) to transport
employees to and from
their places of work (hereinafter referred to as ‘belt riding’
or ‘man riding’).
The conveyer belts system spans a
distance of approximately six kilometres. Only employees who work in
Target 1 Shaft utilise the
belt riding system as a means of transport
to get to their places of work. Target 3 Shaft employees do not use
the belt riding
system. Target 1 Shaft was designed in such a way
that employees will first descend down a vertical shaft and then move
to their
work stations
via
a decline shaft which runs from 50
level for approximately six km at an angle of nine degrees to the
horizontal. The belt riding
system is made up of six independently
operated sections, each of which is separately powered. There are
boarding and alighting
platforms at the beginning and the end of each
section. Should one section of the conveyor belt become inoperative
the remaining
five will still be able to operate. Employees will,
then have to walk the distance of the inoperative belt section.
[4]
Target 1 Shaft was designed and conceptualised on the belt riding
system when this shaft was commissioned in the 1990’s.
The
design of this Shaft precludes, according to the applicant, the use
of any other mode of transport given the number of employees,
the
physical dimensions of the shaft and the distance to be travelled.
1
Relationship between
the applicant and the NUM
[5]
The relationship between the applicant and NUM is regulated by a
collective agreement dated 3 October 2005 which came into effect
on
even date. In terms of this agreement, NUM was granted bargaining
rights for a specific bargaining unit. This bargaining unit
consists
of all the employees who are employed at the mine who are members of
NUM and who are engaged in production work.
2
The
applicant is further a member of the Chamber of Mines of South Africa
(hereinafter referred to as “the COM”), an
employer’s
organisation registered in terms of the Labour Relations Act 66 of
1995 (‘hereinafter referred to as “the
LRA”). The
COM negotiates terms and conditions of employment on behalf of its
members with the NUM. The current agreement
is in force for the
period 2011 to 2013. In terms of this agreement, employees are
precluded from striking in respect of their
terms and conditions of
employment during the currency of the agreement.
The dispute between
the parties
[6] The dispute between
the parties is crisp. The applicant contends that it is a condition
of employment that employees use belt
riding as a form of
transportation. NUM disputes that it is a condition of employment and
argues that the employees are therefore
able to strike on the issue
of belt riding. More in particular, NUM disputes the documents relied
upon by the applicant in support
of its contention that belt riding
is a condition of employment. In this regard, the applicant referred
to ‘Annexure AM2’
which is a standard letter addressed to
the recruiting organisation, TEBA, in terms of which TEBA is required
to inform the relevant
applicant for employment that it is a
condition of employment that during his or her employment at Target 1
Shaft, the said employee
will belt ride, undergo training on belt
riding and manifest the capacity to perform this activity. The letter
further requests
TEBA to inform the applicant for employment that
‘should an applicant below not fulfil the conditions he will be
returned
to the area where he comes from’. In other words, if
the employee does not pass the heat tolerance screening and belt
riding
test or does not obtain a certificate of fitness, the employee
will not be able to work in Target 1 Shaft (where belt riding is
the
mode of transport). This letter applies to so-called payroll 2
employees which the applicant contended constitute the bulk
of the
individual respondents. According to the applicant, payroll 2
employees are not provided with a standard letter of employment
by
the applicant as this is done by TEBA. When employees are transferred
from other operations of the applicant to Target 1 Shaft,
they are
informed that they will be required to belt ride and be trained
accordingly.
[7] In summary therefore,
the applicant argued that the employees are not allowed to strike
because it is a term and/or condition
of service that employees use
the conveyor belt system as the mode of transport in Target 1 Shaft.
If regard is had to the referral
form LRA 7:11, it is clear that the
dispute that was referred to the CCMA concerns a demand that the
employer ‘must stop
using conveyor belt as a mode of transport
for man riding’. The respondents denied that “belt
riding” is a condition
of service and accordingly, they are
entitled to strike over this issue.
[8] The applicant further
argued that the dispute was not properly conciliated because NUM
obtained a certificate of outcome without
having set down the dispute
for conciliation and obtained a certificate of outcome without the
knowledge of the applicant. The
applicant further argued that the
dispute has been settled between the parties with reference to the
minutes of the meeting held
on 11 November 2011 during which
management was informed that they must buy two 50 seat busses in the
new financial year. It was
further agreed at this meeting that
management will conduct a proper investigation and revert back to the
union. It was also agreed
that relevant information will be furnished
to doctors on request in respect of all occupational related
illnesses and accidents.
Lastly, the applicant submitted that there
is no practical alternative to the conveyor belt system for
transporting employees to
and from their place of work. The applicant
is therefore unable to meet the demand to stop using belt riding as a
mode of transport.
The ‘belt
riding’ dispute
[9] The belt riding
dispute arose soon after a new Branch Committee of the NUM was
elected. It is clear from a reading of the papers
that the belt
riding dispute - at least at the time of the meeting on 11 November
2011- only concerned a narrow point namely the
fact that there were
instances of intermittent stoppages of the conveyor belt. The dispute
was not over the safety of belt riding,
as is alleged by NUM in the
answering affidavit. (I will return to this aspect herein below.) The
second issue discussed at the
meeting was the concern raised by NUM
that belt riding is not taken into account in assessing whether any
injuries are work related.
From the minutes it does not appear that
the parties discussed the safety of belt riding. Only these two
issues were accordingly
discussed prior to the strike notice having
been issued.
[10] The unsigned minutes
of the meeting of 11 November 2011 between the applicant’s
management and the Branch Committee records
the following under’(b)
Belt Riding’:
‘
NUM
mentioned that 50/2 belt was standing today. The appreciated
management’s efforts to ensure that the belts are more reliable
than before.
They requested management to buy two
50 sitter busses that would be used to ferry employees to the working
places underground. The
busses must be bought in the new financial
year. Management will do a proper investigation regarding the NUM’s
request and
revert to the union.
Stated that all illnesses and
incidents that are related to belt riding could be classified as
occupational illnesses/ accidents.
Management mentioned that all
occupational related illness and accidents are being investigated and
relevant information is furnished
to Doctors on request.’
[11] Although the minutes
are unsigned, NUM does not take issue with the correctness of the
minutes in respect of the belt riding
issue. In fact, in the
answering affidavit, NUM admits the correctness of the minutes and
only takes issue with the minutes in
so far as it relates to the
training of shop stewards. The remainder of the minutes and
particularly that which relates to the
belt riding issue therefore
remains uncontentious. This being the case, it can therefore be
accepted that the only two issues in
respect of the belt riding was
the two issues as recorded in the minutes of 11 November 2011.
[12] As already pointed
out, the applicant submitted that the belt riding issue was settled
between the parties on the basis that
the applicant will investigate
purchasing the two fifty seater busses to replace the belt riding
prior to the beginning of the
next financial year. According to the
applicant, the matter is currently being investigated by the mine’s
senior engineer,
Mr Alwyn Jordaan. In respect of the second issue,
the applicant likewise argued that the matter was settled in that
management
had undertaken to ensure that all relevant information
including information relating to an employee’s use of the
conveyor
belt system during the course of his or her employment would
be made available to the Occupational Health Centre for the purpose
of evaluating whether injuries are work related or not. NUM denied
that the dispute was settled.
Referral of the
dispute
[13] NUM referred a
mutual interest dispute to the CCMA. In the LRA7:11, NUM demands that
‘the employer must stop using conveyor
belt as a mode of
transport for man riding’. Conciliation was set down for 18
October 2011. On 15 October 2011, the applicant
and NUM agreed to
postpone the conciliation meeting whilst the parties attempt to
resolve the dispute. A letter was sent to the
CCMA confirming the
arrangement. The conciliation meeting was accordingly postponed by
mutual agreement but without having set
down the conciliation meeting
NUM obtained a certificate of non-resolution on 15 December 2011.
[14] The parties met
again on 16 January 2012 during which meeting NUM requested that the
applicant agree to a mass meeting of their
members. It was during
this meeting that the deponent of the founding affidavit - Mr Mantje
(the Human Resource Leader at the Target
Mine in the Free-State
Province) noticed on the agenda a reference to a certificate of
non-resolution. It was the first time that
the applicant became aware
of the fact that a certificate was issued.
[15] According to the
applicant, management had not yet had an opportunity to finalise the
investigation into the merits of a bus
system. However, preliminary
findings were that the bus system, which has to meet stringent
regulations for underground trackless
mobile machinery, would not
meet the operational requirements of the applicant to transport
employees effectively to their workplace.
In brief, it is stated that
an 18 seater bus will take approximately 2 hours to do a return trip
and because the decline shaft
accommodates one way traffic
transporting only, transporting approximately 700 workers per shift,
will result in a turnaround of
17 hours. This, the applicant submits
is unsuitable. NUM suggests in the answering affidavit that the
applicant can make use of
UV trucks that are modified to transport
employees and submits that this will be a safer and more viable
option. In response, the
applicant states that there are no 50-seat
vehicles available which comply with the necessary standards and
exigencies of the underground
environment. The so-called UV vehicles
can furthermore only carry 6-7 persons safely and is therefore also
not a viable option.
The safety issue
[16]
It is strictly not necessary to decide whether belt riding is unsafe
as alleged by NUM in the answering affidavit. Firstly,
the safety of
belt riding was not a dispute between the parties at the meeting
preceding the referral of the dispute to the CCMA.
Secondly, it is
not alleged in the papers that the employees intend to embark on
strike action because belt riding is unsafe. If
this was the case,
the
issue before this Court would have been very different. The issue
before the Court is the dispute about whether belt riding
is a term
and/or condition of service. The answer to this question will
determine whether it is a strikeable issue. In respect
of the safety
issue it should be pointed out that an employee in any event has the
right, within reasonable justification, to leave
any workplace when
it appears to that employee that the place of work poses a serious
danger to the health or safety of that employee.
See in this regard
section 23(1) of the Mine Health and Safety Act
3
(hereinafter
referred to as “the MHSA”). Furthermore, NUM (as a
registered trade union with members at the mine) can
refer any safety
concerns to an inspector appointed in terms of the MHSA. In terms of
the MHSA,
inspectors
have far reaching powers to investigate any allegations and concerns
in respect of safety in mines.
4
They
also have broad powers to suspend any act or practice that endangers
the health and safety of any employee at the mine.
5
The
Act further specifically provides that if there is cause for concern
on health or safety grounds, the inspector
must
investigate
any matter referred to it if requested to do so by (i) a registered
trade union with members at the mine; (ii) a health
and safety
representative or health and safety committee at the mine; or (iii)
if there is no health and safety representative
or health and safety
committee at the mine, an employee at the mine.
6
No
facts were placed before the Court to indicate that such a report has
been made to an inspector in terms of the MHSA.
[17]
In the replying affidavit, the applicant persists with its claim that
the belt riding method of transport is safe. In this
regard,
it was
submitted that over the past two years there have only been six
incidents associated with the belt riding system. Of the
six
incidents,
only
two necessitated sick leave. Furthermore, of these six incidents five
incidents were caused by the employee failing to follow
the correct
procedures in utilising the belt riding system. It appears from these
six incidents that none of the employees lost
a limb or was
incapacitated.
7
It is
further estimated by the applicant that should 1000 employees make
two trips daily this would equate to 600 000 trips per
year or 1 200
000
over
two years (assuming that every employee work 300 days per year).
Given the six incidents over the aforementioned period, the
safety
record therefore amounts to one incident per 200 000 trips or
99,9995% none of which resulted (according to the papers)
in a
serious injury.
[18] It is further common
cause that the applicant has a Code of Good Practice in place as
required by section 9 of the MHSA. This
Code sets out safety
procedures that must be followed by employees using belt riding as a
mode of transport. The Department of
Mineral Resources has been
supplied with such a code of practice. I will now turn to the central
question in this matter.
Is the belt riding
system part of an employee’s terms and/or conditions of
employment?
[19] The applicant
contended that belt riding is a term and condition of employment of
every employee who works in Target 1 shaft.
NUM disputed this and
argued with reference to Annexure AM2 that it merely constitutes ‘a
communication to TEBA of the applicant’s
wishes and not a
letter of employment from TEBA to a prospective employee stating,
amongst other things, that employment at the
mine shall be
conditioned upon the use of the conveyer belt’. In the replying
affidavit, the applicant persists with the
contention set out in the
founding affidavit namely that it is a condition of employment. In
further support of this contention,
the applicant attaches to the
replying affidavit examples of assessment declarations. These
declarations clearly indicate the criteria
and standards for such
competency.
[20] All employees are
required to undergo an assessment at a training centre on surface
when they are assigned to Target 1 Shaft.
This assessment consists of
a practical and a theoretical assessment. Each employee is also
required to go though the said assessment
annually when he or she
returns from annual leave. According to the applicant, it is implicit
from the declaration made by each
employee that, by signing the
assessment declaration, he or she accepts that the belt riding system
is a term and condition of
his or her employment. The salient part of
this declaration reads as follows:
‘
I hereby
declare that I am familiar with
The
Belt Riding
activity
instructions and that I will apply these as part of my duties when
riding on the belt conveyor.’
[21] On behalf of NUM, it
was argued that this evidence (referring to the assessment
declaration) constitutes new evidence which
the applicant has sought
to introduce in the replying affidavit and argued that these
documents ought to have been included in
the founding affidavit so as
to give the respondents a fair opportunity to react thereto.
According to NUM, the applicant ought
to have foreseen that there was
always going to be a dispute about whether the belt riding system is
a term and/or condition of
employment. The applicant argued that it
could not have foreseen that the respondents would deny that the
belt-riding was a term
and condition of the individual respondents’
contracts and argued that the applicant should therefore be allowed
to rely
on the assessment declarations attached to the replying
affidavit.
[22]
It is trite that an applicant must set out its case in the founding
affidavit as complete as is necessary to make out a
prima
facie
case.
See in this regard
Juta
& Co Ltd v De Koker
8
where
the Court held as follows:
‘
In the light
of the aforegoing I was of the view that sufficient allegations were
contained in the founding affidavits to establish
prima
facie
that passages in the affected work constituted an infringement of
copyright in respect of the copyright work. I emphasise that
it was
but necessary for the applicants to make out a
prima
facie
case in this respect. Clearly, once regard was to be had to the
evidence following upon the founding affidavits, that
prima
facie
case might be destroyed or the applicants might at the end of the day
have been in the position that they had failed to show on
a balance
of probabilities that there was any such infringement.’
[23]
The applicant must therefore stand or fall by his founding affidavit.
(See also in this regard
Director
of Hospital Services v Mistry
.
9
)
An applicant will generally therefore not be allowed to introduce a
new matter in reply. The applicant will especially not be
allowed to
introduce a new cause of action in the replying affidavit that
supplants the cause of action contained in the founding
affidavit.
This rule is, however, not inflexible. The Court may allow an
applicant to set up an additional ground for relief arising
from the
respondent answering affidavit. See in this regard
Juta
& Co Ltd and Others v De Koker and Others
:
10
‘
In
the light hereof the principles stated in
Shakot
Investments (Pty) Ltd v Town Council of the Borough of Stange
r
1976
(2) SA 701 (D)
are
I consider applicable. The headnote to that case sets out accurately
the principle enunciated by Miller J and is in the following
terms:
“
In
consideration of the question whether to permit or to strike out
additional facts or grounds for relief raised in the replying
affidavit, a distinction must, necessarily, be drawn between a case
in which the new material is first brought to light by the
applicant
who knew of it at the time when his founding affidavit was prepared
and a case in which facts alleged in the respondent's
answering
affidavit reveal the existence or possible existence of a further
ground for relief sought by the applicant. In the latter
type of case
the Court would obviously more readily allow an applicant in his
replying affidavit to utilise and enlarge upon what
has been revealed
by the respondent and to set up such additional ground for relief as
might arise therefrom.”
…
The
material in respect whereof the respondents objected could not, in my
view, create any prejudice as far as the respondents were
concerned,
particularly if they were granted the opportunity should they so wish
to file further affidavits to deal therewith.
To the extent that the
replying affidavits did contain new matter the Court has a discretion
to allow such material to remain in
the replying affidavit, giving a
respondent an opportunity to reply thereto should special or
exceptional circumstances exist -
Shephard
v Tuckers Land and Development Corporation
F
(Pty)
Ltd (1)
1978
(1) SA 173 (T)
at
177G-178A.’
[24]
The Court in
Fick
v Walter and Another
set
out the circumstances in which the court will allow an applicant to
include new material in the replying affidavit:
11
‘
On
the other hand, I do not share Mr
Raubenheimer's
view
that the material contained in the replying affidavit constitutes new
matter, and I decline to strike out any of the paragraphs
therein
contained. I agree with Mr
Seale
that
what plaintiff was attempting to do in the replying affidavit was to
explain the terms of his founding affidavit. In this regard,
I would
refer to the case of
Nedbank
Ltd v Hoare
1988
(4) SA 541 (E)
at
543 E, where Mullins J said:
“
I do not
read this Rule as implying that a deponent to an affidavit can in no
way depart from the terms thereof. If this were so,
a party could
not, in a supplementary affidavit, vary or explain the terms of a
founding affidavit.
This
is a matter of frequent occurrence, more particularly where it is not
sought to withdraw or vary factual allegations, but only
to amplify
or amend legal conclusions or submissions, which are frequently
incorporated in an affidavit, in order to clarify a
cause of action.
Even
if it is intended to vary or amend facts, I can see no objection
thereto.
12
A
witness giving evidence on oath in Court frequently retracts a
statement, or qualifies or changes his evidence. Whatever effect
it
may have on his credibility, he cannot be precluded from giving such
evidence. Why should the deponent of an affidavit be in
a different
position?
Insofar as Rule 28(1) is concerned, I
read this Rule as meaning nothing more than that the provisions of
the Rule may not be used
to amend an affidavit. It does not, for
example, preclude a deponent from filing a supplementary or replying
affidavit explaining,
varying or even retracting statements made in
his original affidavit.'
In any event, even if I were to strike
out all or some of the paragraphs from the said replying affidavit,
it would make no difference
to the decision which I have reached in
this matter.’
[25]
In
Pat
Hinde & Sons Motors (Brakpan) (Pty) Ltd v Carrim and Others
13
the
Court pointed out that, although the principle is that the Court will
not allow an applicant to supplement an application in
the replying
affidavit in order to cure a defect in the founding affidavit, it has
a discretion to either strike out the new matter
or allow the
respondent to file a second set of answering affidavits to deal with
the new matter.
‘
That
there is this principle supporting the argument emerges from
Schreuder
v Viljoen
,
1965
(2) SA 88
(O)
.
In this case it was held that:
“
A Court
should not permit an applicant in motion proceedings, where it is not
certain on the application as a whole that the respondent
has no
defence, to supplement his application in his replying affidavit in
order to cure the defect where the application does
not disclose a
cause of action and the respondent has taken an objection
in
limine
against it: the whole application should be dismissed.”
…
I find it unnecessary to decide
whether the applicant's replying affidavit sets out a new cause of
action against the second and
third respondents or merely raises new
matter. In either event I have, I consider, a discretion either to
strike out what I would
call the new matter (or direct that the
applicant cannot rely upon it) or to permit it to stand but give the
respondents an opportunity
of filing a second set of answering
affidavits so as to deal with the new matter. Both remedies stem from
the general principle
of our law of procedure that
“
... an
applicant should set out in his petition or notice of motion and
supporting affidavits a cause of action and, since in application
proceedings the affidavits constitute not only the pleadings but also
the evidence, such facts as would entitle him to the relief
sought”.
(
Kleynhans
v Van der Westhuizen, N.O
.,
1970
(1) SA 565 (O)
).
On p. 568 De Villiers, J., goes on to
state the following:
“
Normally
the Court will not allow an applicant to insert facts in a replying
affidavit
which should have been in the petition or notice of motion (cf.
Mauerberger
v Mauerberger
,
1948
(3) SA 731
(C)
;
De
Villiers v De Villiers
,
1943 T.P.D. 60
;
John
Roderick's Motors Ltd
.
v
Viljoen
,
1958
(3) SA 575 (O)
;
Berg
v Gossyn
(1),
1965
(3) SA 702 (O)
;
Van
Aswegen v Pienaar
,
1967
(1) SA 571
(O)
), but may do so in the exercise of its discretion
in special circumstances (cf.
Bayat
and Others v Hansa and Another
,
1955
(3) SA 547
(N)
;
Schreuder
v Viljoen
,
1965 (2) SA 88
(O)). Once such a discretion has been exercised in
favour of an applicant a Court of appeal will only interfere if it
comes to
the conclusion that the Court
a
quo
has
not exercised its discretion judicially.,' application. Even after
the latter affidavit had been filed respondent's opposition
to
applicant's request that the
Court
in the exercise of its discretion should allow the new matter to
remain in the replying affidavit, was not unreasonable. Applicant
was
in effect asking for an indulgence and at no stage offered to pay
respondent's wasted costs up to that stage.”
(See too
Herbstein and Van Winsen, supra
at p. 75, from which it appears that the principle also applies to
the making out of a new case in a replying affidavit).”
[26] I have carefully
perused the papers. I am of the view that no reason exists why I
should not allow the applicant to refer to
the safety declarations in
its replying affidavit:
I am not persuaded that
the applicant could have anticipated at the time the founding
affidavit was drafted that the respondents
would place it in dispute
that belt riding was a term and/or condition of employment
particularly in light of the discussions
that were held between the
parties on 11 November 2011.
It is not denied that
belt riding has been the method of transport in Target 1 Shaft since
the date of establishment of the mine
during the mid-90’s.
If
regard is had to the material attached to the replying affidavit, it
constitutes in my view no more than material that further
supports
or amplifies the case that was already made out in the founding
affidavit, namely that it is a condition of employment
that
employees will belt ride and undergo training in belt riding. The
assessment declarations in no way seek to withdraw or
vary any
factual allegations already made in the founding affidavit. The
applicant is also not seeking to introduce a new cause
of action or
to vary the cause of action set out in the founding affidavit. It is
clear from the founding affidavit that it was
the applicant’s
case from the outset that belt riding constitutes a condition of
employment. It is specifically stated
in the founding affidavit that
employees, when they are transferred to other operations of the
applicant to Target 1 Shaft, are
informed that they will be required
to belt ride and be trained accordingly.
14
The assessment
declarations are not attached to support a new cause of action nor
are they attached to cure a defect in the founding
affidavit.
There was no application
on behalf of the respondents to be granted an opportunity to file a
second set of answering affidavits
to deal with the new documents
attached to the replying affidavit. I am therefore not persuaded
that the respondents are prejudiced.
I have also taken note
of the fact that this matter was brought before this Court as a
matter of urgency and lastly that the reasons
for not having
attached the assessment declarations to the founding affidavit are
properly explained.
[27] I am satisfied on
the papers that the applicant has made out a case that belt riding is
an express term and/or condition of
employment. Terms and conditions
of employment are regulated in terms of negotiations between the COM
and organised labour (including
NUM). The agreement precludes the
possibility of a strike in respect of employees’ terms and
conditions of employment during
the currency of the agreement. In the
event it is concluded that the strike in support of the demand that
belt riding be stopped
will be unprotected. The Rule Nisi is
therefore confirmed.
[28] One further point
must be made. Even if I am wrong in concluding that the documents
referred to above support the conclusion
that belt riding is an
express term and/or condition of employment, there are ample
undisputed facts before this Court to support
the conclusion that
belt riding constitutes, at the very least, a tacit term or condition
of employment:
Firstly, the documents
referred to support a conclusion that, although belt riding may not
be expressly included in a formal agreement,
the parties accepted
that belt riding is a condition of employment.
Secondly, it was not
disputed that employees are informed that they must belt ride and
that they must be trained accordingly.
Thirdly,
when employees are transferred to Target 1 Shaft they are informed
that they will be required to belt ride and be trained
accordingly.
15
It is common cause on
the papers that the belt riding practice has been in existence since
the establishment of the mine in the
mid-90’s. Employees have
therefore, for a period of approximately 19 years used this system
as a mode of transport in Target
1 Shaft.
[29]
In light of these facts, I am therefore of the view that a compelling
inference
16
may
drawn that, on a balance of probabilities, belt riding constitutes,
at the very least, a tacit condition of employment. See
in general:
EC
Chenia & Sons CC v Lamé & Van Blerk
where
the Court confirmed that a tacit agreement is to be inferred from
conduct:
17
‘
Generally
speaking, a tacit agreement is one where either the offer or the
acceptance, or both, is/are to be inferred from conduct.
An express
agreement, on the other hand, is one where both these elements of the
contract were expressed in words, either orally
or in writing.’
In
Sewpersadh
and Another v Dookie,
18
the
Court had the following to say about t the test to be applied in
order to determine whether a term constitutes a tacit term:
‘
As regards
the nature of the test to be applied to determine whether an
inference may be drawn on the particular facts, that a tacit
contract
has been concluded, I respectfully agree with the dictum of Comrie J
in
Muller
v Pam Snyman Eiendomskonsultante (Edms) Bpk
[2000] 4 All SA 412
(C) C at 419
b
-
c
,
where he stated the following:
the idea of a compelling inference
appeals to me; a compelling inference derived from proof on a balance
of probabilities of unequivocal
conduct usually in a business
setting.
Taking this dictum into account, as
well as other authorities which are discussed by the learned author,
Christie (supra) at 85
formulates the D test as to whether a tacit
agreement has been concluded, as follows, with which I respectfully
agree:
(I)n order to establish a tacit
contract, it is necessary to prove, by the preponderance of
probabilities, conduct in circumstances
which are so unequivocal that
the parties must have been satisfied that they were in agreement. If
the Court concludes on a preponderance
of probabilities that the
parties reached agreement in that manner, it may find the tacit
contract established.’
[30] I do not find it
necessary, in light of the above findings to deal with the remaining
grounds relied upon by the applicant
in support of its contention
that the strike is unprotected.
[31] In the event the
following order is made:
‘
The
Rule Nisi granted on 15 February 2012 is confirmed.’
_______________________
AC BASSON J
Judge of the Labour Court
APPEARANCES
FOR THE APPLICANT:
Advocate Snijders
Instructed by Brink Cohen
Le Roux Incorporated
FOR THE RESPONDENTS:
Advocate DN Ntsebeza SC, Advocate M Zondo
Instructed by Finger
Phukubje Incorporated Attorneys
1
Paragraph
9 of the founding affidavit and paragraphs 5.4 – 5.6 of the
replying affidavit.
2
Clause
1.8 of the Collective Agreement.
3
Act
29 of 1996.
4
In
terms of section 47 of the MHSA Mine Health and Safety inspectorate
is established. An inspector may enter any mine at any
time without
warrant or notice and may inspect any machinery (section 50). The
inspector may also seize an machinery or any part
of it. In terms of
section 54 the inspector has the power to deal with dangerous
conditions and may give any instruction necessary
to protect the
health and safety of persons at the mine including but not limited
to an instruction that the performance of any
act or practice at the
mine or a part of the mine be suspended or halted (section 54(1)(a)
of the MSHA.
5
Ibid
.
6
Section
60(3)(b)(i) – (iii) of the MSHA,
7
The
following injuries were sustained: (i) Matlhakwane lost his nail of
his little finger; (ii) W Penning sustained a confused
left knee;
(iii) D Sangozi suffered a laceration of his nose bridge; (iv) N
Molelekoa suffered a confused neck muscle; and (v)
J van Staden
injured his neck muscles and (vi) E Pretorius suffered a laceration
on his head after he slipped and fell on the
conveyor belt.
8
1994
(3) SA 499
(T) at 508 B-D.
9
1979
(1) SA 626
(A) at 645 H 636 E:
‘
When,
as in this case, the proceedings are launched by way of notice of
motion, it is to the founding affidavit which a Judge
will look to
determine what the complaint is. As was pointed out by KRAUSE J
in
Pountas' Trustee v Lahanas
1924
WLD 67
at 68
and
as has been said in many other cases: "... an
applicant must stand or fall by his petition and the
facts alleged
therein and that, although sometimes it is permissible to supplement
the allegations contained in the petition,
still the main foundation
of the application is the allegation of facts stated therein,
because those are the facts which the
respondent is called upon
either to affirm or deny".
Since
it is clear that the applicant stands or falls by his petition and
the facts therein alleged,
"it
is not permissible to make out new grounds for the application in
the replying affidavit"(per
Van
Winsen J in
SA
Railways Recreation Club and Another v Gordonia Liquor Licensing
Board
1953
(3) SA 256
(C) at 260.) It follows that the applicant in this matter
could not extend the issue in dispute between the parties by making
fresh allegations in the replying affidavits filed on 8 June 1977 or
by making such
allegations
from the Bar. I am not losing sight of the fact that, in the absence
of an averment in the pleadings or the petition,
a point may arise
which is fully canvassed in the evidence, but then it must be fully
canvassed by both sides in the sense that
the Court is expected to
pronounce upon it as an issue
.
(See
the recent judgment of Holmes JA in
South
British Insurance Co Ltd v Unicorn Shipping Lines (Pty) Ltd
1976
(1) SA 708
(A)
at
714.)
But
that situation did not arise in this case; respondent's counsel
expressly confined his argument to the issue on the papers
before
the Court, that is, to the issue as to whether the respondent had
delayed unreasonably in taking action during the initial
period of
applicant's suspension. The question as to what happened after 13
April 1977 was not canvassed by the parties and the
Judge was, as he
conceded in his judgment, left in the dark. Nevertheless, no doubt
because he feared that the applicant was
being penalised and had
suffered an injustice, he made an order granting him the relief for
which he had asked and then, to balance
the scales of justice, ruled
that there should be no order as to costs as the case had been
decided on an issue not raised by
the parties. Those orders cannot
stand.’
10
1994
(3) SA 499
(T) at 510 F-510 H and 511 D-F.
11
2005
(1) SA 475 (C).
12
Court’s
emphasis.
13
1976
(4) SA 58
(T) at 63 A-64 A.
14
Ad
paragraphs [9]; [22.1] and [23] – [27] of the founding
affidavit.
15
Ad
paragraph [9] of the founding affidavit. In response the respondents
do not deny or dispute the practice. What is disputed
is the fact
that the use of the conveyer belt constitutes a condition of
employment (ad paragraphs [14] – [16] of the answering
affidavit).
16
See
in this regard:
Sewpersadh and Another v Dookie
2008
(2) SA 526
(D) herein below.
17
[2006]
JOL 16965
(SCA) at para 9.
18
Sewpersadh
at
paras 26 and
27.