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[2013] ZALCJHB 90
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Trustee of the Lekoa Transport Trust represented by Vorster in his capacity as Trustee v Transport and Allied Workers Union and Others (J599/13) [2013] ZALCJHB 90 (28 May 2013)
9
THE
REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable
Of
interest to other judges
case
no: J 599/13
In the matter between:
THE TRUSTEES OF THE
LEKOA
TRANSPORT TRUST
REPRESENTED
BY F VORSTER IN HIS
CAPACITY
AS TRUSTEE
...................................................................................................
Applicant
And
TRANSPORT AND ALLIED
WORKERS UNION
...............................
First
Respondent
INDIVIDUAL RESPONDENTS
LISTED ON
ANNEXURE “A”
TO THE NOTICE OF MOTION
..........................
Second
Respondent
Date
heard: 18 May 2013
Date
delivered: 28 may 2013
Summary: Return day-
unprotected industrial action:
Locus standi
of
trustees. Trustee not producing letter of authorisation from the
Master.
judgment
MOLAHLEHI J
Introduction
The applicant having
obtained an interim order from this Court on 26 March 2013 is now
seeking the confirmation thereof. In the
interim order the refusal
by the individual respondents to operate special hire trips was
declared to be an unprotected strike
action as contemplated in
section 68 of the Labour Relations Act of 1995 (the LRA).
The application is
opposed by the first and further respondents.
Background facts
It is common cause that
the applicant conducts the business of the public passenger bus
under the name Mqibelo Transport. The
applicant receives a subsidy
from the Gauteng government for providing scheduled bus services to
commuters. The business of the
applicant includes providing services
to customers who hires the buses for purposes such as funeral and
wedding events.
The dispute between the
parties arose from the issue of including in the drivers’
duties performance of "special hires."
In insisting that
the drivers’ duties includes performance of "special
hires" the applicant relies on the written
contract of
employment which, amongst others provide under the heading "HOURS
OF WORK,” that:
“
45 hours per
week. Six days a week, Monday to Saturday. From time to time you will
be required to work overtime and operate special
hires.”
It seems common cause
that the special hire trips are done over the weekends. On 6 March
2013, the drivers addressed a letter
to the applicant “requesting”
that:
"Lekoa Transport Trust Drivers
request cash payment of special hires; since the Company does not
have special Hires.
Please see below table of destination
and cash payment
1. Local special hire = R 250;00 each
special
2. Soweto/Avelon =R 300;00 each
special
3. Pretoria =R 400;00 each special
Please take note that this is the
urgent and the reply is requested on or before Friday 08-03-2013.”
In response to the above
the applicant indicated to the individual respondents that in terms
of the contract of employment they
are obliged to work a six days in
a week and the demand not to operate the special hires would result
in no work no pay and discipline.
On 9, 16 and 23 March
2013, the individual respondents refused to operate the special hire
trips. An attempt to obtain an undertaking
by the applicant for the
respondents to perform their duties of special hire was
unsuccessful.
The contention of the
parties
In the heads of argument
for the respondents, Mr Memani, contended that Mr Voster the
deponent to the founding affidavit did not
have
locus standi
to institute the proceedings for and on behalf of trust. It is
further submitted in the heads of argument that except for Mr
Voster
other trustees have not been cited. This point was not pursued
further as the resolution authorising the institution of
these
proceedings was subsequent to the interim order filed with the
Court.
The other point raised
on behalf of the respondents on the day of the hearing concerned
failure to produce a letter of authorisation
of the trustees by the
Master of the High Court. This point was not raised in the papers
but from the bar.
Mr Memani in opposing
the submission of the letter from the Master contended that the
applicant was not entitled to do so as it
ought to have dealt with
that in the papers. He submitted in this respect that the trustees
ought to have indicated in their
papers that they had the authority
from the Master.
Although, no reference
was made as to the law upon which the respondent relied on in
raising the point, it would appear that that
point has its source in
section 6(1) of the Trust Property Control Act 57 of 1988 (the Act).
In terms of section 6(1) of the
Act, a trustee can only perform his
or her duties once he or she has the letter of authority from the
Master. Section 6(1) of
the Act reads as follows:
"Any person whose appointment as
a trustee in terms of the trust instrument, section 7 or a court
order comes into force after
the commencement of this Act, shall act
in that capacity only if authorised thereto in writing by the
Master."
There has been over the
years conflicting judgments in terms of the approach to be adopted
when dealing with trustees who act
as such prior to the formal
authorisation by the Master. On the one hand, there are those cases
that followed the approach in
Schierhout
v Minister of Justice
1
,
wherein Innes CJ, in dealing with this issue had the following to
say:
"It is a fundamental principle of
law that a thing done contrary to the direct prohibition of the law
is void and of no effect."
The other approach is
that which was adopted in
Kropman
NNO v Nysschen
2
,
where it was held that;
"Having regard to the purpose of
the legislation, which is clearly designed to protect those who will
ultimately benefit from
the trust, there seems no reason why a Court
in exercising the discretion cannot retrospectively validate any such
actions in the
circumstances deem it fit."
The issue of
locus
standi
in
the context of section 6 (1) of the Act received attention in
Watt
v Sea Plant Products Bpk
3
,
where the capacity of
the defendants who did not have the Master's letter of authority,
was raised. In dealing with the issue
the Court, per Conradie J held
that:
"
Locus standi in iudicio
is an access mechanism controlled by the court itself. The standing
of a person does not depend on authority to act. It depends
on
whether the litigating is guided by the court as having sufficient
close interest in the litigation.’’
The Court further stated
that:
". . . the
appointment is not void pending authorisation by the Master in terms
of section 6 (1) of the Act."
The approach to adopt
when dealing with the issue of the capacity to act by a the trustees
in terms of section 6(1) of the Act
was clarified by the Supreme
Court of Appeal in the matter of
Gabrielle
Lupacchini NO v Minister of Safety and Security .
4
In interpreting section
6(1) Nugent JA held that:
“
The section
makes it clear that a trustee may not act in the capacity at all
without the requisites authorisation. If we were to
find that acts
performed in conflict of the section are valid it seems to me that we
would be giving the legal sanction to the
various situations that the
legislator wished to prevent.
Parker
makes
it clear that legal proceedings commenced by persons who lack
capacity to act for the trusts are a nullity and I see nothing
in the
section that suggests that trustees who are prohibited from acting in
that capacity are in a better position."
The issue of whether a
person has the capacity to act as a trustee in terms of section 6
(1) of the Act is a factual question.
In essence the question is
whether or not the trustee has been authorised to act as a trustee
by the Master. In this respect
production of the letter from the
Master is sufficient proof that a person has complied with the
requirements of section 6 (1)
of the Act.
In the present instance
the respondents did not challenge the validity of the letter of the
Master authorising the trustees of
the Lekoa Trust which the
applicant’s councel tendered in Court. The contention that the
trustees do not have capacity
to act on behalf of the Trust is based
on of failure to make averments in that regard.
My view is that this
approach is highly technical and places form above substance
particularly when regard is had to the context
in which this
proceedings were launched. It is also important to note that the
point was not raised in the answering affidavits
but rather during
the course of the hearing. It is for this reason that I accept that
the trustees have complied with the requirement
of section 6 (1) of
the Act. The point raised by the respondent concerning the capacity
of the trustee to instituting these proceedings
accordingly stands
to fail.
Turning to the issue of
whether the interim order should be confirmed, it is trite that in
order to succeed in an application
like this the applicant has to
show the following:
A clear right;
An act of interference with the
right/s possessed by the applicant and;
That there is no other satisfactory
remedy available to the applicant.
According to the
respondents the first time when the issue of payment for special
hire arose, they informed Mr Berning that they
would not operate the
function unless they were paid R 350, 00.
The respondent further
states that on 20 December they under took special hire for Trust
Bus Africa and transported passengers
to Rustenburg. According to
them the applicant refused to pay for the special hire which took
place on 20, 21, 22 and 24 December
2012. The applicant refused to
pay the respondents and told them to claim the payment from the
Trust Bus Africa. The drivers
who undertook that trip were paid by
Trust Bus Africa.
The respondent
complained that they were at times accused of being absent without
authority whenever they were doing special hire
trips.
On the face value there
is a dispute of facts in this matter. On the one hand the applicant
contends that the respondents refused
to perform special hire trips,
the administration of which it contended it had outsourced to a
third party.
The applicant further
contends that the special hire trips function is part of the
individual respondent’s duty in terms
of the contract of
employment.
The picture presented by
the respondents on the one hand is that the special hire trips are
performed for other trust businesses
and whenever they did that they
were not paid for the work done or if they were to be paid it would
be by the third party and
not the applicant. The individual
respondents further complained that whenever they transported
passengers under the special
hire trips arrangements they would be
accused by the applicant for being absent without authorisation.
The applicant is on the
other hand disputes the allegations made by the respondents and
contends that the special hire is part
of their duties which they
normally performed on Saturdays. The payment for performing the
function is according to the applicant
part of the overall salary
payment of the respondents and in addition they were up paid
allowances for such trips. In others
words the payment for the
special hire is incorporated into the salary of the individual
respondents.
Evaluation
In my view, there exists
no dispute of facts in this matter. The picture which the
respondents sought to create of the dispute
the fact is
unsustainable for the following reasons: The case of the applicant
is that special hire trips are part of the contract
of employment
and more specifically the clause dealing with the hours of work. In
this respect the applicant's case is stated
in the founding
affidavit at paragraph 12 in the following terms:
“
The
applicant’s employees are employed subject to certain standard
terms and conditions. The drivers are required to work
45 hours per
week, six days a week. The individual respondents are required to
fulfil their duties and to drive shifts or special
hire trips
allocated to them so that the applicants can operate the subsidised
bus trips and special hire trips. A copy of a specimen
contract of
employment is attached marked “FV1”. Driving special
hires forms part of the duties of the drivers in terms
of their
contracts of employment”
In response to the above
the respondents state:
"6.11.1 Save to admit the
contents of annexure “FV1” the rest of the allegations
are denied.”
In admitting the
contents of annexure “FV1” the respondents accepted that
the applicant is entitled, "from time
to time you (the
individual respondents) will be required to work overtime and
operate special hire." There is also nothing
in the agreement
that says payment for special hire will be made separate from the
basic salary of the respondents. The salary
to be paid to each of
the respondents is stated in the contract of employment under the
heading "PAY" as "R128.60
per week (R28.48 Hourly
Rate) prorated for the period worked.”
In my view the
probabilities do not support the version of the respondents. Thus
even if it was to be concluded that a dispute
of fact exists, resort
to the respondents version would not assist the case of the
respondents as the version is not reliable.
On their own version
special hire is part of the employment contract with the applicant.
They have in this respect presented
a contradicted version as far as
the issue of special hire is concerned.
On one hand they say
that the contents of the employment contract of employment, which
makes provision for the special hire trips
is a part of their
employment contract. And on the other hand the first respondent in
the e-mail dated 20 March 2013, which it
addressed to the applicant
regarding the same issue says the following:
“
We want to
point out that your instruction to all members to operate special
hire is unreasonable as they (are) not required to
do so in terms of
the contract of employment."
The applicant contends
that there is a collective agreement which was concluded at SARPBAC,
regulating the terms and conditions
of employment including wages.
This has not been disputed by the respondents.
The question that needs
to be answered in light of the above findings is whether the refusal
to operate special hire trips by
the individual respondents amounted
to a strike.
A strike is defined in
the
Labour Relations Act as
follows:
“
The partial
or complete concerted refusal to work, or the retardation or
obstruction of work, by persons who are or have been employed
by the
same employer or by different employers, for the purpose of remedying
a grievance or resolving a dispute in respect of any
matter of mutual
interest between employer and employee, and every reference to ‘work’
in this definition includes
overtime work, whether it is voluntary or
compulsory”
In interpreting the
decision in
Gobile
v BP Southern Africa (Pty) Ltd and others
5
,
John Grogan in Workplace
Law correctly says:
"employees will be deemed to be
on strike even if the mistakenly believe that they are not
contractually obliged to do work
they have declined to perform,
provided that they have the prolific was seeking attention to induce
the employer to comply with
some, demand."
It follows from the
above that the only reasonable conclusion to draw is that the
special hire trips are part of the duties of
the individual
respondents and that is in accordance with the provisions of their
employment contracts. Accordingly, refusal
to perform that function
accompanied by the demand that they be paid a separate amount from
their salaries whenever they are
called upon to perform that
function amount to a strike.
It has to be noted that
the respondents’ demand is made despite the existence of the
collective bargaining agreement which
regulates the terms and
conditions of employment in the sector which includes wages. The
strike by the respondents is further
unprotected because they have
not complied with the provisions of
section 64
of the
Labour
Relations Act.
I
now turn to deal with
the issue of the availability of other appropriate remedies.
Although the respondents did not pursue this
point in the heads of
argument or their submission there is some suggestion in the papers
that the matter could have been referred
to arbitration.
The issue of arbitration
as an alternative remedy arose in the context where a proposal was
made to refer the matter to arbitration
and it would appear in
principle the parties were in agreement in this regard. However, the
applicant indicated that it was willing
to submit the issue to
arbitration subject to the respondent withdrawing the demand for
payment for waiting special hire, pending
the outcome of the
arbitration. In my view, in the absence of an agreement between the
parties to refer the matter to arbitration
the arbitration process
cannot be regarded as an alternative remedy.
Conclusion
For the above reasons, I
am of the view that, in refusing to carry out the instruction to do
the special hire trips and demanding
additional payment if they were
to perform that function, the individual respondents embarked on an
unprotected industrial action.
In my view, the applicant was
entitled to approach this court for a remedy in the form of an
interdict. In the circumstances
of this matter, the applicant had a
right not to be faced with an unprotected industrial action.
The remaining issue for
determination relates to cost. It is not clear from the papers as to
whether or not the parties have a
recognition agreement. It however
is apparent that the parties have in general a cordial relationship
and have been engaging
with each other in a constructive manner with
regard to this matter. Imposing an order of costs in the
circumstances does not
seem to be appropriate as it would not assist
in building the relationship between the parties.
Order
In the premises, the
rule nisi
made on 26 March 2013, is confirmed with no order
as to costs.
________________
Molahlehi J
Judge of the Labour Court
of South Africa
Appearances:
For the Applicant:
Advocate Orr Instructed by Bowman Gilfillan Attorneys
For the Respondent: Mr
Lehong of Medupi Lehong Attorneys
1
1926
AD 99
at 109
2
1999
(2) SA 567
(T) at 576F
3
[1998]
4 All SA 109
(C),
4
[2010]
ZASCA 108.
5
(1999)
20 ILJ 2027 (LAC)