About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2013
>>
[2013] ZALCJHB 99
|
|
National Union of Mineworkers obo Members v Wanli Stone Belfast (Pty) Ltd (JS 36/2008) [2013] ZALCJHB 99 (10 April 2013)
REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not Reportable
case no: JS 36/2008
In the matter between:
NATIONAL
UNION OF MINEWORKERS on
BEHALF
OF MEMBERS
............................................................................................
Applicant
and
WANLI
STONE BELFAST (PTY) LTD
..................................................................
Respondent
Heard: 14 November 2011
Delivered: 10 April 2013
Summary: Dismissal for participation in an unprotected strike
action. Dismissal is fair particularly where strikers wilfully
ignored
an earlier Court Order interdicting the unprotected strike.
JUDGMENT
BASSON, J
Introduction
The applicant in this matter is the National Union of Mineworkers
(“NUM”) on behalf of its individual members (“individual
applicants”). (I will refer to the applicants jointly as “the
applicants” except where the context requires
otherwise.) The
respondent is Wanlistone Belfast (Pty) Ltd (“the respondent”).
This matter deals with the fairness of the dismissal of the
individual applicants pursuant to an unprotected strike which took
place at the respondent’s premises on 6 and 7 August 2007.
The respondent carries out its business in the granite industry. In
brief. it involves the processing of granite into finished
consumer
products for the local and international markets. The respondent and
the NUM entered into an agreement in terms of which
NUM was afforded
the right of access and the right to union dues.
When the matter commenced, the case for the applicant was that the
strike was protected and that the dismissal of its members
was
automatically unfair alternatively that, if the strike was found to
be unprotected, that the dismissal of the individual
members was
procedurally and substantively unfair in respect of the legality of
the strike. The respondent raised a special plea
of
res iudicata
in view of an earlier determination by the Labour Court that the
strike was unprotected. This determination was made in interdict
proceedings at the commencement of the strike in 2007. The Labour
Court declared the strike to be unprotected and granted the
respondent an interdict. This Order still stands. This
Court,therefore, upheld the special plea and the matter proceeded on
the basis that the strike was unprotected. I should also add that
the evidence in any event supported the conclusion that the
strike
was unprotected
It should also be pointed out that when the evidence was concluded,
counsel for the applicant further conceded that the dismissal
of the
applicants was procedurally fair and indicated that the applicant
limited its case to the claim that the dismissal was
substantively
unfair on the following basis: (i) that, at all times, the dismissed
employees and their representative (Mr Mnisi
of NUM) held the
bona
fide
belief that the strike was protected and that their
conduct, therefore, did not constitute misconduct; (ii) the strike
was peaceful
and no acts of misconduct werecommitted during the
strike; and (iii) the strike only lasted one day with little harm to
the respondent.
In arriving at a conclusion regarding the fairness of the
dismissal,the Court particularly took into consideration the fact
that the individual applicants had wilfully ignored a previous Court
Order interdicting the strike. The Court also took into account
that
not a single witness on behalf of the applicant testified about the
state of mind of the individual applicants at the time
of the strike
and whether they genuinely believed that the strike was protected.
Lastly, in arriving at a conclusion, I also
had regard to the
credibility of Mr Mnisi who was the only witness to testify on
behalf of the applicants. As will be pointed
out hereinbelow, his
evidence was wholly unacceptable and the Court cannot attach any
weight to his evidence: He was an evasive,
argumentative and
obstructive witness to such an extent that this Court can attach no
weight to his evidence. I will return herein
below to his evidence.
It was common cause on the facts that the applicant was at all times
aware that the dispute concerned a refusal to bargain. The
applicant
was also aware that where the dispute concerns a refusal to bargain,
it is essential for the CCMA to issue an advisory
award prior to the
issuing of a strike notice.
What gave rise to the strike?
It was common cause that NUM had submitted wage demands to the
respondent. These wage demands is contained in a letter dated
9
March 2007. A meeting was held between representatives of NUM
(including Mr Mnisi) and representatives of the respondent
(including Ms Modlin). The meeting was held on 29 March 2007. At the
meeting, Modlin informed the applicant that the respondent
was not
prepared to discuss wages and that the reason was that the
respondent had already implemented wage increases for the
year 2007
with effect from January 2007.
On 30 March 2007, Mnisi referred a dispute to the CCMA. He described
the dispute as “the refusal of the company to negotiate
wages
with the representative union”. Mnisi, further, recorded that
the result of the conciliation should be “that
the company
must negotiate with the representative union.” In a further
letter to the CCMA dated 23 July 2007, Mnisi further
advised the
CCMA that ‘we hereby notify you that the company refused to
negotiate with the representatives from the TradeUnion
at plant
level, hence an application to the CCMA’. Modlin unchallenged
evidence in this regard was that she repeatedly
advised Mnisi that
the dispute concerned a refusal to bargain. In fact, Mnisi conceded
during cross examination that the company
refused to negotiate and
that that was why a dispute was referred to the CCMA so ‘that
the company would now negotiate
wages’.
Despite the fact that no advisory award had been issued by the CCMA,
NUM issued a strike notice on 1 August 2007. In fact, the
strike
notice was issued on the very same day that the parties met for
conciliation at the CCMA. Due to the fact that conciliation
only
took place on 1 August 2007, it is reasonable to accept that the
employees must have already decided prior to the conciliation
meeting that they wished to embark on strike action.
On 3 August 2007, just after 8h00, the respondent delivered a letter
to the applicant advising them that the strike was unprotected
and
that should the strike not be called off, the Labour Court would be
approached for an interdict.
It is common cause that shortly before 16h00 on the same day, the
respondent delivered a notice of motion and the founding affidavit
in the urgent application to NUM.As already pointed out, the Court
granted the interdict. Part of the Order declared the strike
unprotected because the dispute concerned a refusal to bargain and
no advisory award has been issued in respect of the dispute.
The
Order was confirmed on the return date.
Witnesses on behalf of
the respondent
Various witnesses testified on behalf of the respondent. I only
intend to deal briefly with the evidence of some of these witnesses.
Both Ms Rebecca Msimango and Mr Joseph Mabena were called to confirm
the delivery of notices and documents during the strike
as well as
the serving of the ultimatum and the Court Order. In essence, their
evidence was that they had delivered correspondence
and documents to
NUM. More in particular, Msimangoconfirmed that she personally
served the copy of the Court Order on NUM. Their
evidence was not
contested and therefore stands.
Mr Johannes du Plooy testified that he was responsible for
industrial relations at the respondent. He, further, confirmed that
he was present during the strike. He confirmed that he issued an
instruction to the workers to return to work at 8h00. He also
confirmed that no representations were made to him. He confirmed
that he left copies of the ultimatum on the ground. During the
course of the day, he also verbally gave instruction to the
individual applicants to return to work. The individual applicants
ignored him and continued to dance and sing. Du Plooy also confirmed
that he requested Msimango and Lorraine Esterhuizen to go
to
Rustenburg to the trade union’s offices to serve the Court
Order. Du Plooy also confirmed that he issued an ultimatum
at the
same time when he served the copies of the Court Order. He also
confirmed that he placed copies on the ground when the
individual
applicants refused to take the Court Order and the ultimatum. The
strikers continued to refuse to return to work.
The final ultimatum
was issued at about 15h30. The ultimatum was read out. Copies of the
ultimatum were also placed on the ground.
Still no employee returned
to work and no employee made any representations to the respondent.
Du Plooy emphatically testified
that he did not see any Union
representative at the premises during the strike.
Ms Dyonne Modlin confirmed that she had discussions with Mnisi and
that she had conveyed to him that the respondent refuses to
negotiate with NUM because wages have already been dealt with for
the year 2007. Modlin confirmed that she had asked that the
Court
Order beserved on NUM and that she had instructed Lorraine
Esterhuizen to serve notices and the Court Order on NUM at its
offices. She explained that the respondent did not lightly take the
decision to dismiss the employees because they were highly
skilled
and were sent to China for training. Modlin also testified that the
respondent has had strikes in the past but that this
was the first
time that the workers had disobeyed a Court Order.
Mnisi testified on behalf of NUM. I am in agreement with the
submission on behalf of the respondent that his evidence should
be
disregarded. He was a particularly evasive and recalcitrant witness
and repeatedly failed to answer specific question put
to him. Mnisi
also changed his version repeatedly. I am in agreement with the
respondent that the impression was created that
Mnisi developed his
evidence to suit the case for the applicant.
Brief exposition of the law
It is trite that participation in a strike that is not in compliance
with the Labour Relations Act
1
(“LRA”) constitutes misconduct although participation in
an unprotected strike will not necessarily result in a fair
reason
to dismiss. In deciding whether it was fair to dismiss, the Court
must take into consideration various facts, including
but not
limited to the seriousness of the contravention of the LRA, attempts
to comply with the LRA and whether or not the strike
was in response
to unjustified conduct by the employer. In evaluating these
considerations, the Court must also consider the
primary objects of
the LRA which is to advance labour peace and, to give effect to and
regulate the fundamental rights conferred
by section 27 of the
Constitution (which recognises the right to strike for purposes of
collective bargaining); to promote orderly
collective bargaining and
to promote the effective resolution of labour disputes. Careful
attention should also be given to the
seriousness of the
contravention of the provisions of the LRA and whether the conduct
of the strikers had the effect of subverting
the primary purpose or
object of the LRA. It is also important to consider whether the
employees who participated in an unprotected
strike participated in
the unprotected strike knowing that their conduct constituted a
contravention of the LRA and therefore
constituted an unprotected
strike.
Section 64(2) read with section 135(3)(c) of the LRA provides for
certain additional steps to be followed when attempting to
resolve
disputes about the refusal to bargain. Before employees can embark
on a protected strike over a refusal to bargain, they
must,after
conciliation has failed to resolve the dispute, first obtain an
advisory award. The obtaining of an advisory award
constitutes an
additional procedural step to the normal process whereby the
employees may merely give the required notice after
a certificate of
non-resolution has been obtained.
There are sound reasons for requiring parties locked in a
recognition dispute to submit to a further process namely to obtain
an advisory award. One reason is that a strike or lock-out in the
early stages of a recognition dispute can potentially have
devastating consequences and cause significant harm to the
relationship between the employees (and/or their union) and the
employer and may also subvert one of the primary objects of the LRA
which is to promote orderly collective bargaining.
In respect of the seriousness of a contravention of the LRA (in the
case of an unprotected strike), it is important to consider
whether
the conduct constituting the contravention of the LRA had the effect
of subverting a primary purpose or object of the
LRA and whether
those who engaged in conduct constitutinga contravention of the LRA
did so with knowledge of the contravention.
Of importance would also
be the consideration whether there were attempts made by the
strikers to comply with the LRA. Where,
for example, parties
wilfully fail to wait for the outcome of an advisory award (the
additional procedural step), this could
be regarded as a serious
contravention of the LRA as parties are required to seriously
consider the advisory award before deciding
whether to embark on a
strike.
2
The Court will also take into account the fact that strikers
disobeyed a Court Order interdicting a strike.This fact may well
be
regarded as an important factor justifying an employer to dismiss.
See in this regard:
National Union Of Metalworkers of SA and
Others v Jumbo Products CC,
3
where it was held:
‘
The
court cannot lose sight of the fact that the individual
applicants
could easily have avoided being dismissed had they returned to work
immediately after management had drawn their attention
to the
interdict which the respondent had obtained in the industrial court
earlier on the morning of 1 November 1989. They chose
to ignore the
court order…after a member of management had read out the
court order and also had it put on the notice-board
for all to see.
In a sense the individual applicants engineered their own dismissals
and this court cannot be expected now to come
to their assistance to
rescue them from their own foolhardiness.’
See also
Modise and Others v Steve's
Spar Blackheath,
4
where
it was held as follows:
‘
[120]
It is becoming distressingly obvious that court orders are, by
employers and employees alike, not invariably treated with
the
respect they ought to command. It is a worrying tendency, one which
can only be effectively combated by the courts' displaying
a marked
reluctance to condone non-compliance. Obedience to a court order is
foundational to a state based on the rule of law.
The courts should
by a strict approach ensure that it remains that way. I do not
perceive any good reason why the appellants should
not be penalized
for their non-compliance. They cannot plead ignorance. Their union
was closely involved. As we have seen, a SACCAWU
official was on the
scene that very morning, and although his testimony was that the
strikers had already been dismissed when he
arrived, that evidence,
as I shall presently show, falls to be rejected. There is little,
then, that can be said in favour of exercising
discretion in favour
of the appellants and I do not consider that they are, taking the
above factors together, entitled to this
court's assistance.’
See also
North West Star (Pty) Ltd (Under Judicial Management) v
Serobatse and Another,
5
where
it was held:
'[18] The respondents' failure
first to obtain the leave of the High Court before they could refer
the dismissal dispute to the
CCMA and before they could bring the
application to make the award an order of court did not invalidate
the award or the order
and was no valid reason for the appellant not
to comply with the order. Upholding the submission made by counsel
for the appellant
would make a mockery of the Constitution and the
rule of law that forms part of the foundations of our constitutional
democracy.
It would be a licence for people to disregard orders of
courts simply because they do not agree with the court that such
orders
should have been issued. A society that would allow such would
in no time be a society of chaos and lawlessness. To do so would
sow
in society a culture in terms of which people felt free to obey only
those court orders with which they agreed or to obey only
those laws
which they like and to disregard those laws they do not like. I have
no doubt in my mind that such a principle has no
place in our legal
system. The correct principle is that, if a court has issued an order
against you and you are unhappy with it,
you must take that decision
to a court higher than the one that issued such order and which has
competent appellate or review jurisdiction
and seek to have such
order set aside. If there is no such court, for example, where there
is no appeal or review available against
that court or against such
order or if the court which issued the order is the court of final
jurisdiction in such matters or is
the highest court in the land,
then you have no choice but must simply comply with the order. A
person cannot say: “
I don't like this court order; it is
wrong; therefore I will not comply with it
.” If we want to
deepen our democracy, promote the rule of law, discourage self-help
and encourage those who have disputes
to take them to the courts of
the land and not to seek to resolve them through physical fights or
violence, the whole society must
frown upon anyone who disobeys an
order of court or who, either by word or deed, encourages or incites
another or others to disobey
an order of court.’
[22] It is, in my view, clear from the aforegoing that where an
employer obtains an interdict and strikers (who are on an unprotected
strike) simply ignore it, the Labour Court will be less sympathetic
to come to their assistance once they have been dismissed.
It is
unfortunate that dismissed employees often turn for assistance to the
very court they have defied through their conduct.
In this regard, I
am particularly in agreement with the sentiments expressed by the
Labour Appeal Court in
Modise
6
to
the effect that obedience to a Court Order is foundational to a State
based on the Rule of Law.
[23] The onus to establish that a failure to comply with a Court
Order was neither wilful nor
mala fide
lies with those who
have failed to comply with such order. The applicants in this matter
placed no evidence whatsoever before this
Court to explain why they
failed to adhere to the court order. They therefore failed to
establish that their failure to comply
with the court order was
neither wilful nor
mala fide
.
7
There is also no proper explanation before this Court as to why NUM
when it received the court order did not intervene and attempt
to put
an end to the unprotected strike.
8
I
am satisfied on the evidence that the court order was not only
properly served on NUM but also on the individual applicants.
[24] It is further clear from the evidence that the individual
applicants were afforded anadequate and reasonable opportunity to
return to work. They have, however, failed to do so. In these
circumstances (also taking into account the applicants’ wilful
disregard of a court order), I am of the view that it would not be
unfair to impose a sanction of dismissal for participation in
an
unprotected strike.
[25] Counsel on behalf of the applicants conceded that the dismissal
was procedurally fair. Although the procedural fairness of
the
dismissal was not placed in dispute,I should point out that the
failure to hold disciplinary hearings will not necessarily
result in
an unfair dismissal in circumstances where the employer had engaged
the employees and their Union and gave them a fair
opportunity to
make representations as to why they should not be dismissed.
9
[26] Furthermore, it is common cause that the applicants have waived
their right to appeal even after they have been advised of
their
right to appeal.
[27] I have also considered the submission that the strike was not of
a long duration. I am in agreement with the respondent that
the fact
that the strike only lasted for one day is not necessarily
determinative and that the length of the strike is only but
one of
the factors to be considered in deciding whether it was fair to
dismiss.
10
What the Court cannot disregard is the fact that the applicants have
blatantly disregarded a Court Order. What the Court also cannot
disregard is the fact that after the applicants hadreceived the
papers in the interdict application detailing the reasons why the
strike will be unprotected, the applicants nonetheless continued with
their strike action. In addition hereto, the applicants,
during the
first day of the strike, received various documents advising them
that their strike is unprotected and advising them
to return to work.
These documents were handed to the applicants and read out to them
and copies were left on the ground for them
to read: At 8H00 a
written instruction was handed to the individual applicants to return
to work. The same instruction was also
delivered to NUM at
approximately 10h44. NUM was also advised that the respondent had
obtained an Interdict against the strike.
NUM received this letter at
12h29. NUM was also invited to make representations to the respondent
before 14h00. The court order
and an ultimatum were also handed to
NUM at approximately 14h00. The ultimatum and the court order were
served on the individual
members at approximately 14h30. No evidence
was placed before this Court as no individual member testified to
this effect to refute
the evidence that the individual members had
received these documents. Du Plooy’s evidence in this regard
was that he explained
the content of the ultimatum to the individual
members. Not one of the individual applicants came forward to testify
that they
did not understand the content of the ultimatum. The final
ultimatum was read and explained to the individual applicants at
approximately
15H30. It was explained to them that they have failed
to make use of the opportunities presented to them and to make
representations
regarding their possible dismissal. The final
ultimatum afforded the individual members a further and final
opportunity to return
to work the following day. They were also
informed that no further ultimatum would be issued to them. Still
they refused to return
to work.
[28] I am, therefore, in agreement with the submissions on behalf of
the respondent that there is no evidence whatsoever before
the Court
to support the claim that the individual applicants held the
bona
fide
belief that the strike was protected. Furthermore, the
evidence on behalf of the respondent strongly supports the
probabilities
that the individual applicants knew that the strike was
unprotected. Furthermore, there is no evidence before the Court to
suggest
that NUM tried to diffuse the situation. Mnisi himself made
no effort to approach the respondent to explain the belief that the
strike was protected. Furthermore, Du Plooy’s evidence was
clear on this point namely that he had consistently advised the
individual applicants that the strike was unprotected and that they
had to return to work. There is no evidence before the Court
that
they did not understand Du Plooy nor that they did not believe him. I
am, lastly, also in agreement with the submission that
an adverse
inference should be drawn from the conduct of the individual
applicants who were present in Court during the trial but
failed to
testify and explain to the Court exactly what they believed or did
not at the time of the strike.
[29] I should also point out that it emerged for the first time at
the trial that Mnisi wasallegedly present at the respondent’s
premises between 15H00 and 17h00. If that was so, surely it is then
probable that Mnisi also received the two ultimatums and the
court
order all of which were issued to the individual members during this
time (except for the first ultimatum that was served
a bit earlier).
On the probabilities, I am also prepared to accept that the members
would, in any event, have shown these documents
to Mnisi.
[30] Lastly, I have already pointed out that Mnisi was a particularly
obstructive and evasive witness and that the Court has difficulty
attaching any credibility whatsoever to his evidence. His evidence,
furthermore, constantly changed and the impression was that
he
changed his version every time he was unable to answer or explain a
question. Furthermore, his one version, namely that he (Mnisi)
was at
the premises of the respondent during the time of the strike, is not
even incorporated in the applicants’ statement
of claim. This
is a critical fact (if it was true) and it is highly improbable that
this version would not have been incorporated
in the statement of
claim. A number of Mnisi’s contention were also not put to
witnesses of the respondent such as, for example,
the fact that the
individual applicants were physically locked out of the premises
behind a locked gate and that Du Plooy had refused
to permit Mnisi to
enter the respondent’s premises.
[31] It is also of concern to this Court that NUM (and more
particularly Mnisi) was so inactive during the strike and that
nothing
was done to protect the individual applicants. None of NUM’s
officials, including Mnisi, communicated with the respondent
until
after the dismissal. I am of the view that, at the very least, NUM
and more in particular Mnisi should bear some of the blame
for the
ultimate dismissal of the individual applicants. Why did NUM and
Mnisi not communicate with the respondent during the strike?
Also,
why did Mnisi not approach the respondent on the day of the strike in
an attempt to clarify the legal status of the strike.
Also, Mnisi
made no attempt to explain to the Court what he had discussed with
the individual applicants when he (allegedly) was
at the premises
during the strike. At no stage did Mnisi tell the Court that he had
advised the members to comply with the ultimatum
and the court order
and return to work. He was also particularly evasive about having
received the court order. Lastly, it is common
cause that the
individual applicants did not exhaust their internal remedies and
appeal against their dismissal.
[32] I am, therefore, satisfied that the dismissal of the individual
applicants was substantively (and procedurally) fair.
11
The individual applicants were engaged in an unprotected strike and
steadfastly refused to return to work. They flagrantly disregarded
a
court order. They steadfastly ignored ultimatums and refused to
co-operate and make representations before a decision was taken
by
the respondent to dismiss them. The conduct of the applicants was not
functional to collective bargaining and there is nothing
before this
Court to persuade me that they were justified in continuing with
their strike after the Court interdict was issued.
I must also point
out that I am not persuaded by the submission on behalf of the
applicants that there were attempts to comply
with the LRA and that
the strike was functional to collective bargaining. After the issuing
of thecourt order, there could not
have been any doubt in the minds
of the individual applicants and NUM that the strike was unprotected.
Moreover, as already stated,
not one single individual applicant
testified and told the Court that they were under the
bona fide
belief that the strike was protected. I am also not persuaded that
any attempts were made to comply with the LRA. As already pointed
out, at the time when the court order was served on the individual
applicants and NUM, they ought to have ceased their illegal
action.
In the stead, they continued.
[33] In respect of costs, I am satisfied that this is one of those
instances where considerations of fairness should not interfere
with
a decision to order the applicants to pay the costs of these
proceedings. I, however, order that NUM to pay the costs.
[34] In the event, the following order is made.
32.1 The dismissal of the applicants was substantively and
procedurally fair.
32.2 The claim is dismissed
32.3 The National Union of Mineworkers is ordered to pay the costs.
_______________________
AC BASSON, J
Judge of the Labour Court
APPEARANCES:
For the Applicant: Advocate C Orr
Instructed by: Cheadle Thompson and Haysom Attorneys
For the Respondent: D van der Westhuizen
Instructed by:
Kramer
and Wesemann
1
Act
66 of 1995.
2
See:
Food and General Workers Union and Others v Minister Of Safety
and Security and Others
(1999) 20 ILJ 1258 (LC): ‘[25] It
is clear that the legislature intends to impose an additional
procedural requirement in
the case of intended strikes involving a
'refusal to bargain' as defined. This is that an advisory award be
issued. Only once
this has been done can the notice prescribed by s
64(1)(b) be served. This additional requirement applies only to
disputes involving
refusals to bargain.’
3
(
1991)
12 ILJ 1048 (IC) at 1056H-J.
4
(2000)
21 ILJ 519 (LAC) at para 120.
5
(2005)
26 ILJ 56 (LAC).See also:
Mbashe Local Municipality andOthers v
Nyubuse
(2008) 29 ILJ 2147 (E) where the Court held that,
although it is not an absolute rule, the Court may refuse to hear a
party until
such party has purged itself of its contempt of an
earlier court order:
‘
[19] The general rule that
orders of court must be obeyed is a long standing one and its
rationale self evident. In
Di
Bona
Rose Innes J
articulated the position thus:
“
It is a strong thing for a
Court to refuse to hear a party to a cause and it is only to be
justified by grave considerations of
public policy. It is a step
which a Court will only take when the contempt itself impedes the
course of justice and there is
no other effective means of securing
a compliance. Applying this principle I am of the opinion that the
fact that a party to
a cause has disobeyed an order of Court is not
itself a bar to his being heard, but if his
d
isobedience
is such that so long as it continues it impedes the course of
justice in the cause by making it more difficult for
the Court to
ascertain the truth or to enforce the orders which it may make then
the Court may, in its discretion, refuse to
hear him until the
impediment is removed or good cause shown why it should not be
removed.”
The learned judge emphasized however, with reference to
the judgments of Romer LJ and Denning LJ in
Hadkinson
that
the rule that a person in contempt will not be heard is not an
absolute one. In
Hadkinson
Romer LJ referred with approval to
the judgments of Vaughan Williams LJ and Cozens-Hardy LJ in
Gordon
where the learned judges expressed themselves as follows:
“
Taking it generally it has
not been disputed in the discussion before us that this rule, that a
person who is in contempt cannot
be heard, prima facie applies to
voluntary applications on his part - when he comes and asks for
something, and not to cases
in which all that he is seeking is to be
heard in respect of matters of defence. I do not for one moment
suggest that everymatter
of defence entitles a person in contempt to
be heard; for instance, if an order has been made in the exercise of
the discretion
of the court, and someone who is oppressed, or thinks
himself oppressed, by that order appeals, saying that the court has
exercised
its discretion wrongly, that person if he is in contempt
cannot be heard to say anything of the kind until he has purged his
contempt.”
Cozen-Hardy LJ, in concurring said (reference omitted):
“…
I desire expressly
to limit my judgment to a case in which the [party in contempt] is
saying that the order complained of is outside
the jurisdiction of
the court, as distinguished from the case of an order which,
although it is within the jurisdiction of the
court, ought not, it
is said, to have been made.”
6
Supra
7
National
Union of Mineworkers and Others v H and S Oprigters GK andAnother
(2010) 31 ILJ 2970 (LC) at para 6
:
‘In terms of the
decision of the Supreme Court of Appeal in
Fakie NO v CCII
Systems (Pty) Ltd
[2006] ZASCA 52
;
2006 (4) SA 326
(SCA), once it is established
that a court order exists, which has been served on the alleged
contemptor, and it has not been
complied with, then an evidentiary
burden, but not an overall evidentiary onus, falls on the accused to
establish a reasonable
doubtthat the failure to comply was neither
wilful nor mala fide. Given that the first three elements had been
met in
casu,
only the last two issues need to be addressed.’
8
Mangaung
Local Municipality v SA Municipal Workers Union
(2003) 24 ILJ
405 (LC) at para 46-48:
‘
[46]
The respondent was made aware of the strike on 15 January 2002 and
was specifically requested to get the striking employees
to return
to work. In its response in the letter dated 16 January, the
respondent did not dispute the fact that its members were
taking
part in an unprotected strike, nor did it claim that it was not
obliged to take steps to bring the strike to an end. It
merely
stated that it could not respond earlier and that its shop stewards
were available for a meeting. The respondent itself
did not send a
union official to speak to the striking employees. It was content to
leave the resolution of the strike to the
shop stewards. It did not
send a union official to attend the meeting of 16 January. It did
not give the undertaking sought by
the applicant that it would take
steps to end the strike or advise its members to end the strike. The
strike only came to an
end after the applicant obtained an interdict
from this court.
[47] I am of the view that where a trade union has a
collective bargaining relationship with an employer, and its members
embark
on unprotected strike union and the trade union becomes aware
of such unprotected strike and is requested to intervene but fails
to do so without just cause, such trade union is liable in terms of
s 68(1)(b)
of the Act to compensate the employer
who suffers losses due to such an unprotected strike. Similarly, if
a trade union elects
to delegate the responsibility to resolve the
strike to its shop stewards employed by the employer facing an
unprotected strike,
and such shop stewards fail to discharge the
same obligation that the trade union has, the trade union is also
liable to compensate
the employer for any losses that it has
suffered as a result of such strike. The obligation arises because
the trade union, as
a party to a collective bargaining relationship
with the employer, has a duty to ensure that its members comply with
the provisions
of the Act in relation to such an employer when they
seek to exercise their collective power by way of strike action.
[48]
In arriving at the above conclusion, I have also had regard, for
comparative purposes, to the provisions of item 6 of schedule
8,
relating to the dismissal of employees engaged in an unprotected
strike. The guidelines there provide for the employer to
solicit the
assistance of a trade union official to discuss the course of action
that the employer intends to adopt, clearly,
with a view that the
union official should intervene and prevent dismissals, if that is
what the employer contemplates doing,
by securing a return to work
by the striking employees. This guideline indicates that a trade
union shoulders some responsibility
with regard to participation by
its members in an unprotected strike. This responsibility extends to
liability to compensate
an employer where the trade union fails to
discharge its duty of intervening during unprotected strikes by at
least attempting
tosecure a return to work by its members.’
9
SACTWU
andOthers v Yarntex (Pty) Ltd t/a Bertrand Group
(2010) 31 ILJ 2986 (LC)
.
10
National
Union of Mineworkers v Black Mountain Mineral Development Co (Pty)
Ltd
(1997)
18 ILJ 439 (SCA)
. (headnote) 'The court reaffirmed the decision
in
National Union
of Metalworkers of SA v Vetsak Co-operative Ltd andOthers
1996 (4) SA 577 (A);
(1996)
17 ILJ 455 (A)
that a striking employee may not be dismissed
merely for striking, for otherwise the right to strike would have no
content and
collective bargaining as an instrument of industrial
peace would be largely undermined. Even when parties negotiate in
good faith
and their conduct cannot be faulted, there comes a time
when the process of negotiation and powerplay, which is the essence
of
strike action, must be acknowledged as having failed to resolve
the negotiating impasse between the two sides. The delivery of
an
ultimatum and, in the absence of compliance, termination of the
employer-employee relationship will then be justified. Whether
this
stage has been reached or not depends on a consideration of the
facts of the particular case with the ultimate determinant
being
fairness to both the employer and the employee. The inquiry is not
whether one or other course may have been more successful
in
resolving the dispute or whether the employer could have endured the
strike for longer, the inquiry is whether in all the
circumstances,
including the duration of the strike and the extent of the measures
actually taken by the parties to resolve the
dispute, the dismissal
can be said to have been unfair.' (Quoted from the headnote.)
11
The
Code of Good Practice provides as follows in item 6:
‘
(1) Participation in a strike
that does not comply with the provisions of Chapter IV is
misconduct. However, like any other act
of misconduct it does not
always deserve dismissal. The substantive fairness of dismissal in
these circumstances must be determined
in the light of the facts of
the case, including –
(a) the seriousness of the contravention of the Act;
(b) attempts made to comply with the Act; and
(c) whether or not the strike was in response to
unjustified conduct by the employer.
(2) Prior to dismissal the employer should, at the
earliest opportunity, contact a trade union official to discuss the
course
of action it intends to adopt. The employer should issue an
ultimatum in clear and unambiguous terms that should state what is
required of the employees and what sanction will be imposed if they
do not comply with the ultimatum. The employees should be
allowed
sufficient time to reflect on the ultimatum and respond to it either
by complying with it or rejecting it. If the employer
cannot
reasonably be expected to extend these steps to the employees in
question, the employer may dispense with them."