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[2012] ZALCJHB 40
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National Union of Metal Workers of South Africa (NUMSA) obo Members v Murray Roberts Projects (Pty) Ltd (J1056/12) [2012] ZALCJHB 40; (2012) 33 ILJ 2642 (LC) (10 May 2012)
REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable
Of interest to other
Judges
Case no. J1056/12
In the matter between:
NATIONAL UNION OF
METAL WORKERS OF SOUTH AFRICA
(NUMSA) obo ITS
MEMBERS
….....................................................................
Applicant
and
MURRAY ROBERSTS
PROJECTS (PTY) LTD
….......................................
Respondent
Heard: 26 April 2012
Delivered: 10 May 2012
Summary: The court
found that the applicant had not complied with the provisions of
section 68(2) of the LRA in that it had not
given 48 hours’
notice of the urgent application and had not applied for condonation
for that non-compliance. The rationale
for the Act’s notice and
time periods is discussed
.
___________________________________________________________________
JUDGMENT
Whitcher AJ
Introduction
[1] On 26 April 2012,
the applicant brought an
urgent application on less than 48 hours notice to the respondent to
declare unprotected and to stop the
lock-out instituted by the
respondent against the applicant’s members on 23 April 2012.
[2]
I
dismissed the application with no order as to costs, mainly because
in my view the applicant had not complied with section 68(2)
(b) and
(c) of the Labour Relations Act, 1995 (“the Act”).
1
I further found that the
respondent’s answering affidavit had given rise to a material
dispute of fact on whether the lock-out
was unprotected and had put
forward an opposing version that could not be described as
implausible, especially in the absence of
a replying affidavit.
[3]
I
said that I would provide written detailed reasons for the order that
I made. These are my reasons.
Background
[4] On 23 April 2012,
the respondent instituted
a lockout against the applicant’s members. On 23 and 24 April
2012,
the
applicant sent a letter to the respondent wherein it warned the
respondent that it intended to approach this Court on an urgent
basis
to interdict the lock-out. The respondent denied the lockout was
unprotected.
[5] On 25 April 2012 at
11h20,
the
applicant served its interdict application. The respondent served an
answering affidavit on 26 April 2012 at 08h41.
[6] In the answering
affidavit,
the
respondent warned the applicant that it intended to apply for the
application to be dismissed on the basis that the applicant
had not
complied with section 68(2) (b) to (c) of the Act. The applicant had
given it less than 24 hours notice of the application
and had not set
out a factual justification for this in the founding affidavit. The
short time period had further prevented it
from obtaining relevant
evidence from deponents who were five hours drive away.
[7] In the answering
affidavit, the respondent denied that it had embarked on an offensive
lock-out. It set out a detailed sequence
of events which appeared to
indicate that the lock-out was in response to ongoing and current
intermittent strike action. A replying
affidavit disputing these
allegations was not filed.
[8] In its founding
affidavit, the applicant submitted that the application was urgent
because the ongoing lock-out was depriving
the individual applicants
of their income. This was essentially the sum total of its
submissions on urgency and its non-compliance
with the time periods.
[9] At the hearing, the
applicant contended that the alleged defects, if any, of the
application were cured by its written warning
to the respondent on 23
and 24 April 2012 that it intended to make application to this Court
on an urgent basis if the lock-out
was not terminated. Moreover the
application was set down on less than 48 hours notice because the
registrar had indicated that
the set down date of the hearing was the
only available date left in the week. The statement attributed to the
registrar was not
set out in the founding affidavit.
The Law
[10] Section 68 of the
Act empowers the Labour Court to grant urgent interim relief
interdicting unprotected industrial action.
Section 68(2) requires
the applicant to give the relevant respondents 48 hours notice of the
application,
2
but the Court may permit
a shorter period of notice if-
‘
(a) the
applicant has given
written
notice to the respondent of the applicant's intention
to
apply
for the granting of an order;
(b) the respondent has been given a
reasonable opportunity to be heard before a decision concerning that
application is taken;
and
(c) the applicant has shown good cause
why a period shorter than 48 hours should be permitted.’
(Emphasis added
)
[11] Rule 8 of the Labour
Court rules also provides that if a party brings an urgent
application,
the
affidavit in support of the application must contain reasons why
urgent relief is necessary and if the application is brought
on less
than 48 hours notice, the reasons why a shorter period of notice
should be permitted.
[12] The rules thus
strike a balance between the recognition that in some instances the
application of the prescribed time limits
or any time limits at all
might occasion injustice
3
and the right of the
respondent to a reasonable opportunity to be heard before any adverse
decision is made against it.
[13] The fact that a
matter may require very urgent attention by the court does not
relieve a party from the obligation to give
respondents 48 hours
notice or provide proper reasons in the founding affidavit why a
period of notice shorter than 48 hours should
be permitted. The
applicant should also in its founding affidavit set out a factual
basis which shows that respondents have been
given a reasonable
opportunity to be heard on the application. Rule 8 makes this
perfectly clear. It is also apparent from the
conjunction “and”
which joins subsections (a), (b) and (c) of section 68 of the LRA.
[14] At stake is the
ability of any respondent, including often trade unions themselves,
to come before the Labour Court sufficiently
advised and reasonably
prepared to oppose the granting of relief, even if interim in nature,
that could have a significant impact
on its rights and interests.
This is especially so in the arena of collective bargaining and
power-play, where the interruption
or delay of a strike or lock-out
can have significant effects on its outcome. Should orders be granted
on less than 48 hours notice,
without very good reasons being
advanced therefore, it may lead to a situation where a rule
nisi
issued from this Court
flows not from the merits of the application but from the
administrative disadvantage the respondent suffered
in not being able
to mount a considered and proper defence under unreasonably tight
time-frames. It strikes me as being particularly
important in the
realm of collective labour law not to allow any party to obtain the
upper hand in delaying the timing of industrial
action through a
weakly motivated deviation from set notice periods.
[15] In
Sonqoba
Security Services MP (Pty) Ltd v Motor Transport Workers Union
,
4
the Court noted that the
applicant had not given the required 48 hours notice and had not
applied for condonation. Though it did
not rest its decision to
refuse the application on this basis, it implied that it may have
done so had there not been another basis
to dismiss the application
for an interdict.
Analysis of Evidence
and Argument
[16] In this case,
the application was
brought on less than 48 hours notice. The applicant thus sought an
exception to be made within an already exceptional
situation. One
would thus have expected to see in its papers a particularly thorough
motivation for the latitude it expects, which
addressed not only
urgency in general but motivation for condonation of an even shorter
period of notice than usually applies.
The explanation it provided in
the founding affidavit did not in my view provide this Court with
sufficient reasons to permit the
exceptional latitude it requested.
Moreover, the respondent essentially warned the applicant about this
problem hours before the
matter was heard. The prudent thing the
applicant should have done was to remove the matter from the roll,
cure the defects and
reinstate the application on 48 hours notice.
[17] The respondent did
manage to compose an answering affidavit under prohibitive
time-frames. It was also given an opportunity
to be heard by this
Court. However, this is not to say that, were the respondent to have
been provided with a full 48 hours notice
its approach might have
been different or more comprehensive
[18] In any event, the
respondent’s answering affidavit introduced a dispute of fact
material to the determination, namely
whether the applicants’
employees were on a strike just before or at the commencement of the
lock-out.
[19] In accordance with
the guidelines formulated by Corbett JA in
Plascon
Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd,
5
in a case of a “genuine
dispute of fact” on the papers
,
the
matter must be decided on the version presented by the respondent,
unless that version can be described as ‘so far-fetched
and
clearly untenable that the court is justified in rejecting [it]
merely on the papers’. I was unable to reject the respondent’s
version that a strike had already commenced merely on the papers.
[20] It was for these
reasons that I made the order referred to in paragraph 1 above.
____________
Whitcher AJ
Acting Judge of the
Labour Court
APPERANCES:
FOR THE APPLICANTS: Ruth
Edmonds
Attorneys - Ruth Edmonds
Attorneys
FOR THE RESPONDENT: Adv P
Pretorius SC and MA Van der Merwe; Attorneys – Fluxmans
Incorporated
1
66
of 1995.
2
In
Automobile Manufacturing Employers’ Organisation v NUMSA
[1998] 11 BLLR 1116
(LC), Landman J held that ‘notice’
means the respondent must receive the applicant’s
notice of
motion and supporting affidavits
at least 48 hours before the
application is to be heard.
3
National
Police Services Union and Others v National Negotiating Forum and
Others
(1999) 20 ILJ 1081 (LC).
4
(2011)
32 ILJ 730 (LC).
5
[1984] ZASCA 51
;
1984
(3) SA 623
(A) at 634 E–635 D.