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[2013] ZALCCT 14
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Alpha Pharm Western Cape (Pty) Ltd v National Education Health and Allied Workers Union and Others (C1008/2012) [2013] ZALCCT 14 (5 March 2013)
REPUBLIC OF
SOUTH AFRICA
THE LABOUR
COURT OF SOUTH AFRICA, CAPE TOWN
JUDGMENT
Not Reportable
Case no: C1008/2012
In the matter between:
ALPHA PHARM WESTERN CAPE (PTY) LTD
....................................................
Applicant
and
NATIONAL EDUCATION, HEALTH AND
ALLIED WORKERS UNION
.....................................................................
First
Respondent
THE PERSONS REFERRED TO IN
SCHEDULE “1” TO THE NOTICE OF
APPLICATION
..............................................................................
Individual
Respondents
Heard: 5 March 2013
Delivered: 5 March 2013
Summary:
Strike violence – interdict – rule
nisi
confirmed.
______________________________________________________________________
JUDGMENT
______________________________________________________________________
STEENKAMP, J
This is the extended return date of a rule
nisi
granted by
Madame Justice Lallie on 18 December 2012 by agreement between the
parties and extended by Moshoana AJ on 22
January 2013.
The issues before this Court are:
2.1 whether the rule
nisi
should be confirmed or discharged;
and
2.2 which party, if any, should be held liable for the costs of the
application.
The background is that the first respondent, NEHAWU (“the
Union”) called out its members on a strike on 10 December
2012. It is common cause that that strike was unprotected and the
union commendably, when it realised that it was unprotected
after
taking legal advice, immediately called off the unprotected strike.
It then followed the proper procedure set out in section
64 of the
LRA and its members embarked on a protected strike as from 14
December 2012.
However, based on what it
alleged to be unlawful and violent conduct by at least a portion of
the striking workers, the company
(the applicant) then approached
this Court on 18 December when the rule
nisi
was granted.
It is common cause that that strike ended on Christmas eve on 24
December 2012. I use the word “ended” in a wide
sense
because there is a dispute as to whether it was in fact terminated
or whether it was suspended. In the normal course, in
circumstances
where a strike has come to an end, this Court will not grant relief
that has become moot or that is academic.
That type of order has been
criticised in the past, for example, in the well-known case of
Polyoak (Pty) Ltd v
CWIU
,
1
where Brassey AJ commented:
‘
The
fourth prayer I consider improper, is an open-ended one. That is one
that binds the respondents for a period whose duration
is indefinite
and potentially unlimited. As I have said, an interdict can be
granted only to restrain misconduct that is likely
to occur in the
future. The period during which this is likely to happen is a
question of fact, but it will rarely, if ever, be
indefinite. It will
normally last for no longer than the motive for wrongdoing remains
alive - typically, within this context,
the duration of the strike
plus the time it thereafter takes for life to return to normal. The
unlimited operation of a sword of
Damocles to which I referred above
is more than simply undesirable, it is legally wrong.’
However, in the case before me the facts are to be distinguished
from those in
Polyoak.
The dispute that the union referred to
the CCMA for conciliation and that resulted in the protected strike
is one over the payment
of a bonus. It was summarised by the Union
as follows:
‘
The
company Alpha Pharm Western Cape refuses to agree to NEHAWU’s
demand of a full 13
th
cheque (4.333 weeks’ pay)
in
lieu
of an annual bonus for all employees payable no later than 16
December 2012.’
It must be presumed that the
words “
in lieu
of” used here means its opposite and not that it was demanded
in place of an annual bonus, but that it would constitute
an annual
bonus.
When the rule
nisi
was issued, the parties agreed that the company would make financial
information available to the Union and that it would give
the
Union’s consultant or accountant or auditor access to its
financial records for purposes of inspecting it. It also
appears
from the union’s answering affidavit that the issue around a
bonus is still alive.
In these circumstances, as Mr Seymour for the Union readily
conceded, it is not inconceivable that the same issue i.e. the
dispute over bonuses may not be resolved and that the Union may take
further industrial action over the same dispute. If that is
the
case, there is for the reasons that were set out when this
application was brought, still a reason to hold the Union’s
members to the interdict preventing them from acting unlawfully.
The next question then is whether there was in the first place a
reason to grant that interim order and to confirm it today.
As this
is the return day, the question then is whether the company has made
out a clear right for the relief it seeks.
In this regard, the applicant has placed extensive evidence before
the Court, including video footage of employees who have been
identified as members of NEHAWU and who have been identified by
name, engaging in various acts of misconduct including blocking
the
entrances to the company’s premises with their cars and that
has resulted in disciplinary action against 25 individuals
who were
specifically identified.
Those individuals were found to have conducted specific acts of
misconduct, as specified in each case in the transcript of the
disciplinary findings, and those individual employees were
dismissed. Three of them were present in court today in
circumstances
where Mr Seymour made it clear that he is acting only
of behalf of the Union and not on behalf of the individual
employees.
The evidence set out in the answering affidavit, deposed to by a
provincial organiser, Mr Shaun Wildschut, is to a large extent
contradicted by the clear evidence on the video recording. For the
rest it constitutes mainly bare denials of any misconduct
by the
individual employees and vague allegations that the Union and its
officials tried to prevent the employees from engaging
in the
unlawful conduct.
However, despite Mr Seymour’s complaint that the South African
Police Services should have done their job, Mr Wildschut
himself
acknowledges that when the SAPS tried to do just that, he told them
to go away, as he described the actions complained
of as a labour
dispute where the police had no place.
Also, when the company’s management tried to speak to Mr
Wildschut and other Union officials in order to have a meeting
to
agree on picketing laws, the Union did not agree to that. They
simply complained that they were not prepared to speak through
the
gates of the employer’s premises.
The principles regarding motion
proceeding are well known. It is set out in
Plascon-Evans
Paints Ltd v Van Riebeeck Paints Ltd
,
2
What is important though, is that that case also confirms that in
certain instances the denial by a respondent of a fact alleged
by
the applicant may not be such as to raise a real, genuine or
bona
fide
dispute of fact,
as set in
Room Hire Co
(Pty) Ltd v Jeppe Street Mansions
,
3
and
Da Mata v Otto
.
4
The Court also made it clear in
Plascon-Evans
that there may be exceptions to the general rule as, for example,
where the allegations or denials of the respondent are so
far-fetched or clearly untenable that the Court is justified in
rejecting them merely on the papers.
That is the situation before this Court. Where there is a dispute of
fact it is created by the bare denials of Mr Wildschut,
much of
which, as I have said, has been belied by the clear evidence on the
video recording.
This is also not a case such as
that criticised in
Polyoak
where the individual perpetrators have not been identified. In the
case before me the applicant has gone out of its way and has
properly identified those individuals who did commit the misconduct
complained of. They have established a clear right for the
relief
sought and for the rule to be confirmed.
That brings me to the question
of costs. The general principle that costs should follow the result
is of course not applicable
to this Court in terms of section 162 of
the LRA which compels the Court to consider the requirements of law
as well as fairness,
as set out in
NUM
v East Rand Gold and Uranium Co Ltd
.
5
There have been numerous
instances in this Court where costs have been granted, albeit mainly
in a context of an unprotected strike,
such as that in
Mutual
Construction Company (Pty) Ltd v Federated Mining Union
,
6
where Landman AJ, as he then was, said:
‘
An
order of costs is imperative, not only to compensate the applicant
but to stress the point that unprocedural strikes are contrary
to the
ethos of the new labour dispensation and ought not to be tolerated.’
In the case before me, it is common cause that the strike was
protected. However, I would similarly venture that unlawful and
violent action concomitant to a procedural strike, is contrary to
the ethos not only of our labour dispensation - not so new
anymore
-- but also to the constitutional principles that protect the right
to strike and the right to assemble peacefully and
unarmed.
I take into account that on the evidence before me, the individual
employees have engaged in unlawful conduct and the union has
not
fulfilled its responsibility to stop that conduct.
I also take into account that although the union initially agreed to
a rule
nisi
it has sought to oppose the application today,
not only on the question of costs but also on the merits, when it
had very little
evidence to do so.
I agree with Mr
Stelzner
for the applicant that confirmation
of the rule and the granting of costs will confirm an important
principle that is increasingly
being disregarded in our labour
dispensation, and that is that the hard fought and constitutionally
protected right to strike
is one that carries with it certain
responsibilities, one of those being to exercise the rights within
the confines of the law
and the Constitution.
Lawlessness cannot and will not be tolerated, and it is incumbent
upon this Court to send out that message not only to the Unions,
but
to strikers and to the South African Police Services. It will
continue to do so.
In those circumstances, I grant an order in the following terms:
[1] The rule
nisi
granted on 18 December 2012 is confirmed and
is made final.
[2] The first respondent, NEHAWU, and the individual respondents
listed in schedule 2 to this draft order, are ordered to pay the
costs of this application, including the costs of 22 January 2012,
jointly and severally, the one paying, the other to be absolved.
_______________
Steenkamp J
APPEARANCES:
For the Applicant: RGL Stelzner SC
Instructed by: Joubert Galpin Searle, Port Elizabeth.
For the First Respondent: V Seymour attorney, Cape Town
1
(1999)
20
ILJ
392 (LC) at 396H-J.
2
1984(3)
SA 623 (A)
at 634E-635C
.
3
1949(3)
SA 1155 (T) at 1163-5.
4
1972(3)
SA 858 (A) at 882 D-H.
5
1992(1)
SA 700 (AD) at 738J-739G.
6
[1997]
11 BLLR 147O
(LC) at 1472.