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[2014] ZALCJHB 58
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Xstrata South Africa (Pty) Ltd v Association of Mineworkers And Construction Union and Others (J1239/13) [2014] ZALCJHB 58 (25 February 2014)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable
Case no: J1239/13
In
the matter between
XSTRATA
SOUTH AFRICA (PROPRIETARY)
LIMITED Applicant
and
ASSOCIATION
OF MINEWORKERS
AND First
Respondent
CONSTRUCTION
UNION
NATIONAL
UNION OF
MINEWORKERS Second
Respondent
THE
MINISTER OF POLICE OF THE
REPUBLIC Third
Respondent
OF
SOUTH AFRICA
THE
NATIONAL COMMISSIONER OF POLICE
OF Fourth
Respondent
THE
REPUBLIC OF SOUTH AFRICA
THE
INDIVIDUAL RESPONDENTS LISTED IN Fifth
to Further Respondents
ANNEXURE
“A” TO THE NOTICE OF MOTION
Heard:
13
February 2014
Order
granted: 25 February 2014
JUDGMENT
TLHOTLHALEMAJE,
AJ
Introduction:
[1]
There are three separate but interrelated applications before the
Court. The first two concern extended return dates of a
rule nisi
.
These are:
1.1
An application brought by the Applicant (Xstrata) to confirm an
interim order (in the form
of a
rule nisi
) granted by
Molahlehi J on 11 June 2013 in terms of which the Court interdicted
an unprotected strike action and strike related
misconduct.
This application will be referred to as the “Main application”
and is opposed only by the First Respondent
(AMCU).
1.2
An application brought by Xstrata to confirm an interim order
(in the form of a
rule nisi
) granted by Snyman AJ on 26
July 2013, which placed AMCU, the Second Respondent (NUM) and the
individual respondents in contempt
of Court on the grounds that they
had contravened the order of Molahlehi J. This application will be
referred to as the “Contempt
application”, and is also
opposed only by AMCU.
1.3
An application brought by AMCU to strike out a portion of Xstrata’s
founding affidavit
in the “contempt application”. This
will be referred to as the “Strike out application”. This
application
is opposed by Xstrata.
Background:
[2]
The background to these applications is fairly common cause. They
affect Xstrata’s operations at Thorncliffe, Helena and
Magareng
Mines (The Company’s mines). These mines engaged about 1 256
hourly paid employees, who were members of both AMCU
and NUM. On 28
May 2013, the individual respondents embarked on an unprotected
strike at the mines. This was one of the many unprotected
strikes
that the individual respondents had embarked upon in the recent past.
[3]
On 30 May 2013, the individual respondents were dismissed. The
dismissals were confirmed on 5 June 2013. Following incidents
of
violence on 6, 7 and 10 June, Xstrata launched an urgent application
before this Court on 10 June 2013. On 11 June 2013, Molahlehi
J
granted an interim order (in the form of a
rule nisi
) in the
following terms;
“
1.
The provisions of the Rules of this Honourable Court relating to
times and manner of
service referred to therein are dispensed with
and the matter is dealt with as one of urgency in terms of Rule 8 of
the Labour
Court Rules.
2.
Rule nisi
is issued calling upon the Respondents herein to
appear and show cause on 16 August 2013 why a final order should not
be granted,
in the following terms:
2.1
the strike which commenced on morning of 28 May 2013 is not in
compliance with Chapter
IV of the Labour Relations Act, 66 of 1995
and is unprotected;
2.2
the Third to Further Respondents (Fifth to Further Respondents as
cited in these applications)
are interdicted and restrained from:
2.2.1
gathering at any of the Applicant’s entrances to the workplace,
and/or blocking such entrances
2.2.2
encouraging and/or inciting any of the Applicant’s employees to
participate in the unprotected
strike; and
2.2.3
intimidating any of the Applicant’s employees to participate in
the unprotected strike; and
2.2.4
being within 4 (four) kilometres of the Applicant’s Helena,
Magareng and Thorncliffe Mines.
2.3
The First and Second Respondents are ordered to ensure that their
members comply with
this order.”
[4]
On 11 June 2013, Xstrata served the order on the Fifth to Further
respondents in the manner prescribed in prayer 5 of the order
itself.
The order was also e-mailed to AMCU’s attorneys of record, even
though they had yet to be formally instructed in
the matter. On 22
July 2013, the same order was formally served on AMCU at its head
office and also on NUM by telefax.
[5]
Following incidents of intimidation and violence during the period 11
to 25 July 2013 allegedly perpetrated by members of the
individual
respondents, Xstrata then launched the contempt application. On 26
July 2013, Snyman AJ issued a
rule nisi
in the following
terms;
“
2.1
The first and Second Respondents are in
contempt of the Court order of this Honourable Court dated 11 June
2013 (“the Court
Order”)
2.2
The Fifth to Further Respondents are in contempt of the Court Order.
2.3
The First and Second Respondents, are ordered to appear in this Court
on 12 September 2013
to show cause why the First and Second
respondents should not be ordered to each pay a fine to be determined
by the Court for their
contempt of the Court Order.
2.4
The following persons are ordered to appear in this Court on 12
September at 10h00 to show
cause why they should not be imprisoned
for a period to be determined by the Court for their contempt of the
Court Order. (20 individuals
are listed)
2.5
The Third and Fourth Respondents are directed and ordered to ensure
that the SAPS removes
the Fifth to Further Respondents from within 4
(four) kilometres of the Applicant’s Helena, Thorncliffe and
Magareng Mines
at any time when they are within 4 (four) kilometres
of the Applicant’s Helena, Thorncliffe and Magareng Mines
following
the service of this order.
2.6
The Third and Fourth Respondents are directed and ordered to ensure
that the SAPS enforces
the rule of law and arrests all persons who
contravene the Court Order and/or who conduct themselves in an
unlawful manner;
2.7
The Third and Fourth Respondents are directed and ordered to take
such steps as may be reasonably
necessary to give effect to and
enforce the Court Order.”
The
Main Application:
[6]
As a consequence of the dismissal of the individual respondents,
paragraphs 2.1; 2.2.2; and 2.2.3 of the Order issued by Molahlehi
J
are no longer pertinent. AMCU however opposes the granting of a final
order in respect of prayer 2.2.4 (The “perimeter
order”)
and prayer 2.3 (The “ensure compliance order”).
“
The
Perimeter order”
[7]
AMCU’s contention was that in terms of section 21 of the
Constitution of the Republic of South Africa 108 of 1996 (The
Constitution), everyone has the right to freedom of movement, and
that its members were entitled to move freely throughout South
Africa, and lawfully to be at any place that they wished to be.
Furthermore, it was submitted on their behalf that in terms of
section 17 of the Constitution, AMCU members have the right,
peacefully and unarmed, to assemble, to demonstrate and picket. To
this end, it was submitted that the “perimeter order” was
too wide and had the effect of placing unnecessary, unjust
and
unreasonable restrictions on the Members’ constitutional
rights.
[8]
AMCU’s further contention was that the “perimeter order”
would preclude its members, for an indefinite period,
from being
within 4 kilometres of the Xstrata Mines. It had also pointed out
that it would be nonsensical to confirm the order
in that some of the
individuals sought to be interdicted and restrained, have since been
reinstated or re-employed. Impracticalities
were also pointed which
it was contended would severely prejudice the Fifth to Further
respondents. These mainly related to access
to either the main public
road or to the Mines for a variety of reasons.
[9]
Xstrata’s contention was that it sought confirmation of the
“perimeter order” on the grounds that firstly,
the
T-Junction where the Thorncliffe access road met with the R577, which
is the only access point to the only road to the mines,
is exactly
3.1 km’s from the plant entrance to the Thorncliffe Mine.
Secondly, the 4 kilometre order was sought on the grounds
that during
the course of the unprotected strike, the individual respondents had
gathered at the T-junction and prevented other
employees and other
private persons from accessing the mines. Thirdly, subsequent to
their dismissals, the individual respondents
have continued to gather
at the T-junction and prevented persons from accessing the mines.
Fourthly, Xstrata was of the view that
since the dismissals and a
referral of a dispute in that regard, there was a “likelihood
that the dismissed employees will
persist at gathering at the
T-junction and in participating in incidents of violence and unlawful
behaviour”. It was thus
submitted that this was not a case
where the underlying dispute that formed the subject of the
rule
nisi
has been extinguished, in which event the Court might be
inclined to discharge the rule. To this end, Xstrata sought
confirmation
of the “perimeter order” that would prevent
the individual respondents from gathering at the T-junction, which is
a
critical point of access to the company’s mines, and which
the members had utilised to block access to the company mines.
[10]
In regards to the concerns raised by AMCU regarding the
impracticalities associated with the “perimeter order”,
Xstrata submitted that the concern can be addressed by the replacing
of the word “
being”
at the beginning of paragraph
2.2.4 of the order with the word “
gathering”,
in
order to be in line with paragraph 2.2.1 of the order.
Evaluation:
(“The Perimeter order”)
[11]
In
Polyoak
(Pty) Ltd v Chemical Workers Industrial Union & others
[1]
,
Brassey AJ held as follows in regards to matters before the court on
the return day;
“
It
is trite that on the return day, the court must be satisfied that a
proper case has been made out for each facet of the relief
sought.
Where the original papers fail to do this – because the
allegations are either incomplete or strictly speaking inadmissible
–
the applicant should supplement them so that their deficiencies are
remedied before application is made for confirmation
of the rule”
[12]
It is further trite that one ought to stand or fall by one’s
notice of motion and the averments made in one’s founding
affidavit. A case cannot be made out in the replying affidavit for
the first time
[2]
. The Court in
Body
Corporate, Shaftesbury Sectional Title Scheme v Rippert’s
Estate and Others
[3]
had regard to
Shephard
v Tuckers Land and Development Corporation (Pty) Ltd
[4]
and
also acknowledged that the rule against raising new material for the
first time in the replying affidavit was not inflexible.
Nestadt J in
Shephard
had illustrated the point in the following terms
[5]
;
“
This
is not however an absolute rule. It is not the law of the Medes and
Persians. The court has a discretion to allow new matter
to remain in
a replying affidavit, giving the respondent the opportunity to deal
with it in a second set of answering affidavits.”
[13]
There can be no doubt that the Fifth to Further respondents’
constitutional rights to freedom of movement under section
21 and
section 17 of the Constitution are sacrosanct. However and most
importantly for the purpose of this case, section 17 of
the
Constitution provides that “
Everyone has the right,
peacefully
and
unarmed
, to
assemble, to demonstrate, to picket and to present petitions”
.
[14]
In the light of Xstrata seeking to have the “perimeter order”
confirmed, it needs to show that the Fifth to Further
respondents are
likely to be within 4 kilometres of its Helena, Magareng and
Thorncliffe Mines for no other purpose than to do
wrong. Thus Xstrata
has to show that the Fifth to Further Respondents’
constitutional rights to be within the said area should
be subject to
limitations on account that they have no legitimate reason for being
there other than for illicit purposes
[6]
.
[15]
In his written heads of argument, Adv Redding SC on behalf of AMCU
pointed out that the only reference made by Xstrata in its
founding
affidavit to a point that is four kilometres away from its Mines was
at paragraph 16 of the founding affidavit deposed
to by Johan
Combrink, its General Manager at the Mines. Combrink had averred that
on 6 May 2013 a number of buses transporting
employees to Thorncliffe
Mine, arrived at the Applicant’s Thorncliffe Mine, and the
employees disembarked from the buses
and gathered at the bus stop in
front of the main entrance to the Thorncliffe Mine. The bus stop is
located on the main access
road to Thorncliffe, Helena and Magareng
Mines, which road is also the main access road to the Xstrata’s
Mototolo Mine. The
road leading to Thorncliffe is the Thorncliffe
Road, and the main road which is used to access the Thorncliffe Road
is the R577,
which is approximately 4 (four) kilometres from
Thorncliffe Mine.
[16]
Reference to the four kilometre area was made by Combrink at
paragraph 51 of the founding affidavit wherein he had stated the
following;
“
On
Thursday, 6 June 2013, the dismissed employees gathered at the
pick-up points where buses belonging to the Applicant collect
employees to take them to work at the Applicant’s Mototolo
operation. They intimidated the employees on 2 (two) of the buses
and
forced them to disembark from the buses. They then intimidated the
bus drivers of these 2 (two) buses and forced the bus drivers
to take
them to an area approximately 4 (four) kilometres from the
Applicant’s Thorncliffe Mine, where they disembarked and
walked
towards the Applicant’s Thorncliffe Mine, carrying axes,
pangas, sticks and other weapons and prevented various vehicles
from
passing. I attach, marked “JC18”, a still image from a
video recording taken on 6 June 2013, in which the Applicant’s
employees en route to the Applicant’s Mototolo Mine are seen
being removed from a bus of the Applicant. I attached marked
“JC19”
a picture on 6 June 2013, in which the group is seen preventing a
private vehicle from passing”
[17]
Adv Redding SC further submitted that Xstrata had for the first time,
made mention of the T-junction in its replying affidavit.
He
submitted that on Xstrata’s own version as gleaned firstly from
the replying affidavit, secondly, the annexure “SYV1”
as
attached to the replying affidavit, which is a map of the area in
question, and thirdly, the contents of paragraph 48 of the
replying
affidavit in respect of the contempt application, there were
differing versions as to how far the Thorncliffe Mine entrance
was
from the T-junction. The argument further went that if the purpose of
the “perimeter order” was to prevent the
Fifth to Further
respondents from blocking access to the company’s mines at the
T-junction or any other point, the company
should simply have sought
such an order, which it did not. It was further submitted that to the
extent that prayer 2.2.1 sought
an order to interdict and restrain
the Fifth to Further respondents from “
gathering at any of
the Applicant’s entrances to the workplace and/or blocking such
entrances”
, they would in any event be precluded from
blocking access or entrance to the Company’s mines, whether at
the T-junction
or any other point. To this end, it was argued that
the “perimeter order” was superfluous.
[18]
In
Ripple
Effect 40 (PTY) LTD t/a Mkuze Bus Service v SATAWU and Others
[7]
,
Van Niekerk J with reference to
Lourenco
& others v Ferela (Pty) Ltd & others
[8]
opined that the respondent is obliged, on a return day, to show no
more than that the order should not have been granted at the
outset
because there was no proper case made out for that order on the
papers. In my view, AMCU’s opposition to the confirmation
of
the “perimeter order” had more to do with the
consequences of the confirmation of that Order rather to show why
it
should not have been granted at the outset. In essence, AMCU failed
to make out a case in its answering affidavit to counter
the factors
presented by Xstrata as to the necessity of this “perimeter
order”. This conclusion is based on the following:
[19]
AMCU did not deem it necessary to either respond or refute Combrink’s
averments in relation to the reason the “perimeter
order”
was sought in the first instance. Instead, in its answering
affidavit, AMCU merely stated that it would abide by the
decision of
the Court in relation to prayers 2.1, 2.2.1, 2.2.2 and 2.2.3 of
Molahlehi J’s Order. In its view, it did not
deem it
appropriate to respond to allegations made by Xstrata as it
considered them irrelevant considering its (AMCU’s) opposition
to the relief sought.
[20]
In opposing the confirmation of the “perimeter order”,
Marais, AMCU’s Head Legal Advisor in his answering
affidavit
did not at all challenge or refute allegations made by Combrink
surrounding incidents of intimidation, the unlawful stopping
of buses
ferrying employees to the Mines, the carrying of an assortment of
weapons by members, the prevention of access to the
Mines, the
removal of other employees from buses and thus preventing them from
reporting for duty. Paragraphs 2.1; 2.2.2 and 2.2.3
of the
rule
nisi
have since become superfluous in the light of the strike
having ended and the subsequent dismissals of the strikers. The
confirmation
of the “perimeter order” however, was being
pursued on the basis of subsequent events to the dismissal of the
strikers,
and also in view of the fact that the ending of the strike
had not diminished the need of such an order.
[21]
On AMCU’s concession that it would abide by the Court’s
decision in respect of prayer 2.2.1, it should be inferred
that at
the very least, it acknowledges that its members have been gathering
at any of the Applicant’s entrances to the workplace
and have
been or had blocked such entrances. It can also be inferred that AMCU
further acknowledges that its members may be guilty
of having
gathered at the company’s entrances, and may have intimidated,
and prevented other employees from reporting for
duty whilst carrying
an assortment of dangerous weapons. Notwithstanding, AMCU believes
that its members should be allowed to continue
with their actions
unhindered as they are acting in pursuance of their constitutional
rights. This attitude cannot be countenanced
in a democracy
such as ours, where the rule of law is still a founding value in the
Constitution.
[22]
It is further a fundamental value, if not obligation of a democratic
society that every right must be exercised with due regard
to the
rights of others. Thus inasmuch as the constitutional rights of AMCU
members under sections 17 and 21 are acknowledged,
in the same vein,
other employees of Xstrata, or any other individuals who seek to do
business with Xstrata, and who are not affected
by the dispute with
AMCU, also have rights, including to go about their business free
from all forms of violence, intimidation
and harassment, which
incidents Combrink alluded to. Furthermore, Xstrata has a right to
conduct its business and affairs with
whomsoever unhindered, and has
a right to have its employees who seek to render their services to do
so unhindered.
[23]
The right to assemble, to demonstrate, to picket and to present
petitions under section 17 has inherent limitation by the insertion
of “
peacefully
”
and “
unarmed
”.
Mogoeng CJ in
South
African Transport and Allied Workers Union and Another v Garvas and
Others
[9]
explained
the rights in section 17 of the Constitution as follows;
“
Everyone
has the right, peacefully and unarmed, to assemble, to demonstrate,
to picket and to present petitions.” “That
is what
section 17 of the Constitution promises the people in South Africa.”
And,
“
Nothing
said thus far detracts from the requirement that the right in section
17 must be exercised peacefully. And it is important
to emphasise
that it is the holders of the right who must assemble and demonstrate
peacefully. It is only when they have no intention
of acting
peacefully that they lose their constitutional protection”.
[24]
It is acknowledged that Xstrata had not in clear terms sought an
order in prayer 2.2.4 to prevent the Fifth to Further) Respondents
from blocking access to the Company mines at the T-junction, and it
can thus not make out its case in that regard for the first
time in
its replying affidavit. Prayer 2.2.1 of the Order is specific in
application as it merely refers to gathering at any of
the
Applicant’s entrances to the workplace, and/or blocking such
entrances. It does not refer to a radius, and to this end,
it cannot
be correct that prayer 2.2.4 is therefore superfluous as argued on
behalf of AMCU. Adv Redding SC in his arguments was
correct in
pointing out that the Court’s intention was to be ascertained
primarily from the language of the judgment or order
as construed
according to the usual well-known rules. It is apparent that the
Court drew up the order in the terms sought by Xstrata,
and in my
view, the order in its language and intent is clear and unambiguous.
[25]
Xstrata had suggested that the word “
being”
in
prayer 2.2.4 should be substituted with “
gathering”
in order to circumvent some of the practical problems highlighted by
AMCU. Inasmuch as the language and intent of the order is
clear and
unambiguous, and further since Xstrata should be bound by its Notice
of Motion, it is my view that in its application,
the Order in its
current form is indeed too wide and may have unintended consequences,
some of which have been pointed out by AMCU.
However, in view of
Xstrata’s uncontested contentions regarding incidents of
intimidation, the blocking of access and other
unsavoury incidents
complained of, the constitutional rights allegedly exercised by
members concerned cannot be unfettered, as
the members have no
intention of exercising those rights peacefully. Furthermore, in view
of the current and prevailing complaints
in regard to the gathering
of members of the Fifth to Further Respondents at the areas within
the four kilometre area, and further
the reasonable apprehension of
harm as a consequence of the continued gathering of these
individuals, it is my view that the this
“perimeter order”
should be confirmed,
albeit
not in its current form.
[26]
AMCU has not shown that the Fifth to Further Respondents have any
intention of gathering at any point within the four kilometre
radius
peacefully. They are more likely to gather at the area in question
for no purpose other than to do wrong. If this was not
the case, AMCU
would have at least indicated so in its answering affidavit. It is
acknowledged that the word “
being
” in the order is
wide enough to infringe on unaffected members of AMCU’s right
of movement in the area, and also those
who might be in the area for
legitimate reasons. It could not therefore have been envisaged by
either the Court or Xstrata that
the consequences of the “perimeter
order” should be far-reaching as to impact on unaffected
individuals’ constitutional
rights, let alone inhibit the
movement of Xstrata’s own employees who would be in the area
for legitimate reasons.
[27]
The purpose of the “perimeter order” was clearly to
prevent individual members or the Fifth to Further Respondents
from
gathering within a radius of 4 kilometres of Xstrata’s Mines
for nefarious and untoward reasons. To this end, and merely
for the
purposes of convenience, the “perimeter order” should be
confirmed with an amendment, and the substitution
of the word “
being”
in prayer at the beginning of 2.2.4 with the word “
gathering”
as suggested by Xstrata. This is also to make certain as to what
conduct is restrained from taking place within the perimeter.
[28]
As regards the duration of the order, it is apparent that the order
was sought on the basis that the dismissed employees continue
to, or
are more than likely to converge or gather in the area concerned for
reasons already stated until the unfair dismissal dispute
is resolved
or determined. The nature of the order and its duration in its
current form appears to be unlimited. This is clearly
undesirable and
legally wrong
[10]
. It would
however defeat the purpose of the order to limit it to a specific
period in view of the uncertainty surrounding the finalisation
or
determination of the unfair dismissal dispute. To this end, the
“perimeter order” is to remain in effect and binding
on
the Fifth to Further Respondents, until the determination or
resolution of the unfair dismissal dispute referred to the CCMA.
The
“Ensure Compliance Order”
[29]
Xstrata seeks a final order that AMCU “ensures” that its
members comply with the Court Order granted by Molahlehi
J. AMCU
conceded that it is in a position to take reasonable steps in order
to attempt to ensure that its members comply
with the Court Order. It
however opposed the granting of the order on the following grounds;
It
would be inappropriate for the Court to order that AMCU “ensures”
compliance by its members with the Court Order.
Furthermore, AMCU
holds the view that to order it to “ensure” compliance
would be to place an obligation on a trade
union, for which there is
no legal basis. AMCU had further submitted that as an independent
trade union, its relationship with
its members was governed by its
constitution. There was no duty that arose either in contract,
delict, or statute as between union
and its members that would compel
a union to police its members and to ensure that its members acted in
a lawful manner. AMCU acknowledged
that it was obliged to act within
the scope of the Labour Relations Act in its collective bargaining
relationship with an employer,
but however, there was no duty owed by
a union to an employer to ensure that its members do not engage in
unlawful activities,
especially in an unprotected strike that was not
authorised, instigated, ratified, promoted or encouraged by the
union, and where
the union does not support such activities. Lastly,
it was argued that any obligation placed on a union to physically
“police”
its members, in circumstances where its members
are engaged in unlawful activities could result in “disastrous
consequences”.
[30] Xstrata’s
arguments in seeking confirmation of the order were as follows;
All
that was required of AMCU was to do what is “reasonably
necessary” to ensure compliance. Secondly, there existed
a
legal and factual basis for the ensure compliance order due to the
following reasons;
AMCU
had a collective bargaining relationship with the company. The
unprotected strike was called and engaged in by a large group
of
members of AMCU. The strike was called primarily in opposition to the
company’s decision to take disciplinary action against
Mr.
Malibu, an AMCU Full Time Shop Steward and mine branch secretary, and
also against Mr. Mohlala, an AMCU member. Malibu was
the chief
protagonist in the strike and had called upon his fellow AMCU members
to join the “
fight against the company”.
The
company had held various meetings with AMCU during the course of the
strike and had communicated with AMCU members through
it during the
course of the strike. The company had met with AMCU, including its
president, Mr. Mathunjwa after the dismissals
in an attempt to
resolve the matter. At no stage did AMCU distance itself from the
conduct of its members and AMCU continues to
represent the individual
respondents. All of these factors saddled AMCU with various legal
obligations with the “ensure compliance”
order.
Evaluation
(“Ensure compliance order”)
[31]
The relationship between unions and employers is usually governed by
recognition agreements, which sets out the rules of engagement.
That
collective bargaining relationship, cannot for practical purposes,
set out all the do’s and don’ts in the parties’
relationship. Some of these rules will be developed as the
relationship grows, and some of the rules are expected to be common
knowledge as they arise out of the common law. Depending on how
volatile the engagement may be at any given time, further rules
may
be agreed upon in the form of picketing rules in terms of section 69
of the Labour Relations Act
[11]
.
This is the only provision in the LRA that places an obligation on
the union and its members to act “
peacefully”.
[32]
The Labour Relations Act does not regulate the relationship between
the union and its members
[12]
.
The only provisions that can be said to regulate that relationship to
a limited extent by imposing certain obligations on the
union are
those under sections 98
[13]
,
99
[14]
and 100
[15]
.
Even then the monitoring and enforcement in that regard is left to
the Registrar of Labour Relations under the Department of Labour.
On
the contrary, section 97 (2) of the LRA
[16]
appears to absolve members of a registered trade union from that
union’s obligations and liabilities.
[33]
The relationship between a union and its members is regulated by its
constitution. It is doubted however, that the definition
of a “
member
in good standing”
in the definition section of the constitution would extend beyond
payment of union subscriptions. It is further doubted that in
any
union constitution, one would find a clause regulating its members’
conduct during strikes, protests or similar activities.
Invariably,
when such activities are embarked upon, union members are let loose,
as the union’s constitution does not make
provision for
consequences of untoward behaviour no matter how abhorrent,
despicable, cruel and criminal that behaviour may be.
As AMCU had
stated; “
Any
obligation placed on a union to physically “police” its
members, in circumstances where its members are engaged
in unlawful
activity, could result in disastrous consequences”
[17]
.
[34]
From AMCU’s attitude as gleaned above, it is apparent that the
“disastrous consequences” referred to can
only be in
relation to how the union will be perceived by its members when it
makes attempts to implore them to behave like civilised
citizens. For
fear of being seen by its marauding members as “weak” and
“counter-revolutionary”, the union
would rather let the
chaos unfold in front of its eyes rather than intervene as the
perception is that there is no legal or moral
obligation to
intervene. It is therefore clear from AMCU’s attitude that the
“disastrous consequences” of the
actions of an unruly mob
should be more tolerable and palatable to everyone other then the
unions themselves. In my view, what
this attitude implies is that the
concept of a “
disciplined cadre”
within the
context of strikes, protest action and similar activities has become
confined to and defined by how much mayhem a union
member can cause.
[35]
It has become noticeable that unions are readily and easily prepared
to lead employees out on any form of industrial action,
whether
lawful or not. The perception that a union has no obligation
whatsoever to control its members during such activities,
which are
invariably violent in nature cannot be sustained. There are various
grounds upon which in my view there is an obligation
on unions to
“police” their members. The first,
albeit
open to
debate, is a constitutional obligation. Section 3 of the LRA provides
that;
Any
person applying this Act must interpret its provisions:-
(a)
to give effect to its primary objects;
(b)
in compliance with the Constitution; and
(c)
in compliance with the public international
law obligations of the Republic
[36]
Thus when a union calls upon its members to take part in strike
action or some form of protest action, this will lead to further
activities associated with the strike including marches,
demonstrations and handing over of petitions. To the extent that the
union members would be engaged in these activities during that
strike, section 17 of the Constitution places an obligation on them
to do so “
peacefully”
and “
unarmed”.
By implication, the same obligation is placed on the union to ensure
that its members indeed exercise these rights likewise, and
within
the confines of other laws of the land. As already indicated
elsewhere in this judgment, the rights enshrined in the Bill
of
Rights are not self-standing, they also impose obligations.
[37]
Secondly, the obligation arises out of the fact that there is a
relationship of guardianship between the union and its members.
The
leadership, be it shop stewards or the national leadership, were
elected on the basis that the members trust them to lead and
guide
them. Inasmuch as the members can be guided on whether to embark on a
strike action or some other protest action, in the
same vein, the
leadership, including shop stewards, should also lead and guide the
members and advise them to behave lawfully during
actions undertaken.
Leadership and guidance by the union should persist until the end of
the action undertaken, and not end at
the point that the action
commences.
[38]
Thirdly, the collective bargaining relationship between unions and
employers places an obligation on both parties. Maserumule
AJ in
Mangaung
Local Municipality v Mouthpiece Workers Union
[18]
held that once a trade union has a collective bargaining relationship
with an employer, it has a duty to ensure that its members
complied
with the provisions of the LRA in relation to such an employer. In
similar vein, to the extent that there is a Court Order
granted by
this Court in terms of the provisions of the LRA, by virtue of that
relationship, the union should be obliged to ensure
that its members
comply with that order, as it pertains to that relationship with the
employer.
[39]
In the light of the above, when as in this case, members of AMCU went
on strike and have since been dismissed as a result of
that strike,
AMCU, by virtue of its on-going bargaining relationship with Xstrata
is expected to call its members to order, and
to ensure that they
behave in a civilised manner even if they seek to show their
displeasure at being dismissed. That obligation
should be on-going
until all matters pertaining to the dismissal are resolved or
determined.
[40]
A process of engagement between the parties further gives rise to
this obligation. In this case, and based on all of
the factors
or incidents pointed out on behalf of Xstrata as indicated elsewhere
in this judgment, AMCU cannot simply extricate
itself from its
responsibilities arising out of that engagement. In this regard, it
was
inter alia
, pointed out on behalf of Xstrata that AMCU had
called the unprotected strike and a large number of its members had
taken part
in that strike. The strike was called primarily because
its members were aggrieved with disciplinary measures taken against
its
official and members. Various meetings were held between AMCU and
Xstrata, and AMCU had not distanced itself from its members and
continues to represent them, including in this matter and also in
respect of a dispute referred to the CCMA.
[41]
All that AMCU had done in its answering affidavit is to deny that
there is a legal basis for the order sought. Furthermore,
it raised a
complaint that this “ensure compliance order” would
amount to an infringement of its members’ rights
under Chapter
II of the LRA. Even though AMCU perceived this application to be an
attack on it in retaliation to the violence that
took place at the
mines during and after the strike, in my view, the “ensure
compliance order” can hardly be considered
an infringement of
its members’ rights to freedom of association. On the contrary,
it is more the consequences of that association
of its members and
AMCU’s obligations in that regard that remains the focus.
[42]
It cannot be doubted that AMCU has fully associated itself with the
conduct of its members throughout the illegal strike, even
after the
dismissal of the strikers. AMCU cannot therefore, when it is required
to account for the actions of its members, wash
its hand of them in
the mould of the proverbial Pontius Pilate. AMCU has conceded that it
is in a position to take reasonable steps
in order to attempt to
ensure that its members comply with the Court Order. This concession
implies that it does appreciate its
obligation to indeed “police”
its members.
[43]
Orders obliging unions to ensure that their members acted in a lawful
and peaceful manner during strikes are meant to reinforce
what the
unions should know and do. In view of the volatility associated with
strike or protest action in the workplace, employers
are now bound to
depend on the Courts to issue such orders. Thus, when a Court Order
obliges unions to ensure that their members
act in a particular
manner or refrain from doing certain things, the Courts, and by
implication, the employers, are not expecting
unions to perform
miracles. All that is expected of unions is for them to take
reasonable steps and measures, to ensure that their
members comply
with the Court orders.
[44]
The term “
ensure”
is not fanciful or awkward to
understand. It might
inter alia
imply that one must give a
guarantee. However, it is known that there can be no guarantees in a
volatile strike situation. However,
all that AMCU had to show was it
did whatever was necessary, and within its means and powers, to
ensure that its members complied
with the Court order. It is not even
required of the union leadership to physically and at all times
police its members. The “policing”
can be done by the
shop stewards, and the union’s national leadership can provide
a supporting role. Shop stewards are in
a unique situation where they
can control the members as they have exercised a liaison function
between the union and its members
in respect of the activity in
question. In the same fashion that the shop stewards were used by the
union to organise the action
in question, they can and should be used
to control it. I am of the view that this is not too much to ask from
a union in the bigger
scheme of things, especially where the action
in question has turned violent. To this end, it is concluded that
AMCU has not made
out a case why the “ensure compliance order”
should not be confirmed.
The
Contempt Application:
[45]
Xstrata in its Notice of Motion had sought an order declaring that
AMCU and NUM were in contempt of the Court order of 11 June
2013 and
that an appropriate penalty should be imposed against the two unions.
A similar order was sought against the Fifth to
Further Respondents.
For the purposes of this application, Xstrata has since abandoned the
relief against NUM and the Fifth to
Further Respondents.
[46]
As it was correctly pointed out in both sets of written heads of
argument, the principles relating to contempt proceedings
are set out
in
Fakie
NO v CCI Systems (Pty) Ltd
[19]
.
In summary, an applicant must prove the requisites of contempt, viz,
the order, the service or notice, non-compliance, and wilfulness
and
mala
fides
beyond reasonable doubt. Once an applicant has proved the order,
service or notice and non-compliance, the respondent bears the
evidentiary burden in relation to wilfulness and
mala
fides
.
Thus should the respondent fail to advance evidence that establishes
a reasonable doubt as to whether non-compliance was wilful
and
mala
fide
,
contempt will have been established beyond reasonable doubt.
[47]
In its application, Xstrata complained about the unlawful and illegal
conduct of the Fifth to Further Respondents at or near
the
Applicant’s Thorncliffe Mine in flagrant breach, defiance and
deliberate disregard of the Court Order of 11 June 2013.
AMCU opposed
the application on two grounds. Firstly, that the order of 11 June
2013 was not properly served on it, and secondly,
that it was not
guilty of wilful and
mala fide
non-compliance.
[48]
In regards to service of the order, in terms of paragraph 5 of that
order, it was directed that it be served on AMCU by tele-faxing
a
copy of the application to it at its Head Office (number 031 656
5112) in accordance with the provisions of Rule 4 of the Rules
of
this Court. Xstrata’s contention was that the order was sent to
AMCU’s attorneys of record by e-mail on the same
date it was
issued. It was then formally served on AMCU’s head office by
telefax on 22 July 2013.
[49]
In his answering affidavit in respect of the contempt application,
AMCU’s President, Joseph Mathunjwa (Mathunjwa), submitted
that
Xstrata had failed to provide any proof whatsoever in respect of the
service of the order on AMCU, as required in terms of
Rule 4 (2) (b)
of the Rules of the Court, read together with paragraph 14.1.5 of
this Court’s Practice Manual. He further
submitted that Xstrata
relied on hearsay evidence in contending that there was indeed
service of the order by telefax. In addition,
Mathunjwa contended
that personal service of the application had not been affected on
AMCU. He however confirmed that the order
was faxed to AMCU’s
head office on 22 July 2013.
[50]
Mathunjwa further acknowledged that the order was sent by e-mail to
Larry Dave Attorneys on 11 June 2013. He however contended
that this
did not constitute proper service as these attorneys were not on
record at the time. Adv Redding SC on behalf of AMCU
had argued that
despite the order not being properly served, hardly three days had
passed after it was properly served on AMCU
had Xstrata launched the
contempt application.
[51]
Adv Myburgh SC on behalf of Xstrata had had made reference to
DENOSA
& another v Director-General, Department of Health &
others
[20]
and
acknowledged that contempt of court applications may be found
defective where formal service of the order on the respondent
had not
been established. He however submitted that service of the order was
not absolute in itself, and that being informed or
notified may be
sufficient. Adv Myburgh SC further submitted that even if the order
was only faxed to AMCU on 22 July 2013, actual
service was not
necessary in that AMCU was aware of the order firstly through its
attorneys, secondly the order was conveyed through
sms, and thirdly
that Mr. Bhengu, its AMCU’s regional secretary had met a crowd
gathered at the T-junction on 21 June 2013
and requested them to
comply with the order. To this end, it was argued that AMCU had
knowledge of the order.
[52]
It was further argued on behalf of Xstrata that even if it is found
that reliance can only be placed on the order having been
faxed to
AMCU’s head office on 22 July 2013, AMCU on its own version did
nothing to ensure that its members complied with
the order from then
until the contempt application was heard on 26 July 2013. Insofar as
AMCU had placed reliance on the practice
manual, it was contended
that this was misplaced as the manual dealt with service of
applications and not the order in question.
[53]
Where a Court has ordered that its order should be served on the
respondents and other affected parties in a specific manner,
it would
be required of the applicant party to serve that order in the manner
prescribed. There can be no deviations or half-measures
in respect of
the directive of the Court concerning the service of its orders,
unless the applicant can show that it was not possible
to effect
service in the manner prescribed, or alternatively service in the
manner prescribed by the Court was frustrated by some
factors beyond
its control. The reasoning behind this view is that the Court, more
specifically in urgent applications, is guided
by the applicant as to
how service should be effected in order for compliance to follow, and
furthermore, the Court ordinarily
takes into account the
circumstances of the application in deciding on the manner of service
of its orders.
[54]
The Order issued by Molahlehi J required that it be served on AMCU at
its Head Office by telefax at a specific number in accordance
with
the provisions of Rule 4 of the Rules of this Court. In terms of Rule
4 (2) (b), service is proved in court if it was effected
by fax, by
an affidavit of the person who effected service, which must provide
proof of the correct fax and confirmation that the
whole of the
transmission was completed. There is nothing vague or ambiguous about
how service was to be effected as per the court
order. The contention
that from the fact that the order was e-mailed to Larry Dave, it must
be assumed that AMCU was aware of it
as the attorneys must have
informed it cannot be sustained. Service of a court order cannot be
assumed to have been effected. There
must be proof that it was
effected, and that there was compliance with the method prescribed by
the Court. In this case, such proof
would be by means of a
service affidavit as required by the provisions of Rule 4 (2) (b) of
the Rules of this Court. Furthermore,
Larry Dave attorneys were not
AMCU’s attorneys of record then, and there was no obligation on
them to inform or notify AMCU
or even forward the Order to AMCU. The
obligation on Larry Dave attorneys, if any, arose out of professional
courtesy and nothing
more.
[55]
As appears from the e-mail correspondence
[21]
between Rian Itzkin of the Xstrata’s attorneys of record and
Jayson Kent of Larry Dave Attorneys, the latter had informed
the
former on 11 June 2013 that the firm had not been able to obtain
instructions in the matter. Thereafter, there does not appear
to be
any further confirmation by or on behalf of Xstrata in respect of
these instructions. It appears that Xstrata was content
with merely
e-mailing the Court Order to Larry Dave attorneys, which it was not
even sure were mandated by AMCU to receive the
order. Notwithstanding
the importance of the matter, no attempt was made between 11 June
2013 and 22 July 2013 to serve the Court
order in the manner
prescribed. There is neither an explanation nor an excuse for not
effecting service in the manner prescribed
by the court, and given
the circumstances of this case and its importance to the parties,
this omission cannot be excused, and
it is concluded that as a result
of the defective service, the application for contempt should be
dismissed.
[56]
Even if it is accepted that proper service of the order was effected
on 22 July 2013, in my view, it appears convenient that
Xstrata would
within three days thereafter launch the application for contempt, and
more specifically, pursue it against AMCU.
It is not doubted that
there may have been non-compliance with the Court order by the Fifth
to Further Respondents from the moment
it was granted in the manner
described by Combrink in his founding affidavit. It appears strange
that Xstrata could not have brought
the application at any time
before 25 July 2013 if indeed the matter of non-compliance was
serious to it. Be that as it may, in
respect of the period after the
Court order was properly served, Combrink had averred that on 22 July
2013, there were two incidents
which were perpetrated by members of
the Fifth to Further Respondents. These included a security vehicle
of a contractor engaged
by the Applicant being attacked with a petrol
bomb, and damage caused to another security vehicle of a contractor
that was caused
when a rock was thrown at it. Combrink had further
averred that on 23 July 2013, about 30 members of the Fifth to
Further Respondents
had continued to gather at the same T-junction
and the incidents of intimidation and violence had not ceased.
[57]
In my view, notwithstanding the incidents identified by Combrink, it
cannot be said that on the whole AMCU had not taken any
measures to
ensure compliance by its members with the Court order. Despite AMCU’s
initial contentions that it was not obliged
to ensure that its
members complied with the Court, Mathunjwa as can be gleaned from his
answering affidavit, had on 26 June 2013,
personally addressed the
members that had gathered at the T-junction and implored them to
conduct themselves in a lawful manner.
Before then, Bhengu, the
AMCU’s Regional Secretary had on 21 June 2013 addressed the
people at the same spot and requested
them to comply with the court
order. Notwithstanding the fact that AMCU had not been properly
served with the court order, Malibu
of AMCU had on 11 June 2013, upon
being in receipt of an sms from Xstrata taken the effort to measure a
distance of four kilometres
from Thorncliffe Mine, and had found the
T-Junction to be 4.2 kilometres away from that Mine. Malibu had then
addressed people
that had gathered at the Mine gate and requested
them to move to a point of 4.2 kilometres away from the Mine, and
further requested
them to maintain discipline. The contention that
Mabilu was seen driving around in his bakkie on 25 July 2013 using a
loud speaker
and allegedly inviting people to “
join him in
the fight against the company”
is hardly sufficient for a
conclusion to be made that he was encouraging people not to comply
with the Court order, more specifically
if the context within which
he made those remarks is unknown.
[58]
These interventions might not be seen to be enough. However, in view
of the fact that essentially there was no proper service
of the court
order for a period of 44 days after it was granted, the fact that
some of the AMCU officials had nevertheless acted
on that court order
in my view does not indicate wilful or
mala fide
non-compliance. It cannot be doubted that some of the persons
identified amongst the Fifth to Further respondents might have not
complied with the court order. It cannot be justifiable for Xstrata
to specifically target AMCU for contempt in circumstances where
it
(Xstrata) had created the conditions of non-compliance (i.e. by
failure to properly serve the order). This is even more
so
where the focus and allegations of non-compliance with the Court
order as gleaned from Combrink’s founding affidavit seems
to be
on the Fifth to Further Respondent rather than on AMCU itself.
The
application to strike out:
[59]
At paragraph 38 of Combrink’s founding affidavit in respect of
the contempt application, he had alleged that 20 individuals
were
identified as having been involved in incidents of violence and
intimidation. AMCU sought to have this paragraph struck out.
To the
extent that relief in the contempt application was not longer pursued
against these individuals, the application to strike
out became
academic.
Costs:
[60]
A determination in respect of an order of costs is made after
consideration of the interests of law and fairness. Given the
nature
of the three separate but interrelated applications before the court,
and further in respect of the conclusions made in
that regard, it is
deemed appropriate that no order should be made as to costs.
Final Order:
[61]
In respect of the
rule nisi
issued by Molahlehi J on 11 June
2013, it is ordered as follows;
61.1
Paragraph 2.2.1 of the
rule
nisi
is confirmed.
61.2
Paragraph 2.2.4 of the
rule
nisi
is confirmed with the following
amendments and substitutions to read;
“
being
within 4 (four) kilometres of the Applicant’s Helena, Magareng
and Thorncliffe mines during and for a period that the
unfair
dismissal dispute referred to the CCMA by AMCU is finally resolved or
determined.”
61.3
Paragraph 2.3 of the
rule
nisi
as above is confirmed, with the
deletion of any reference to the Second Respondent (NUM).
61.4
Service of this final order on the affected
respondents shall be as directed in paragraph 5 of the Order granted
on 11 June 2013.
[61] The application for
contempt as brought by the Applicant is dismissed
[62] There is no order as
to costs
_______________________
Tlhotlhalemaje, AJ
Acting Judge of the
Labour Court of South Africa
Appearances:
For
the Applicant:
Adv. AT Myburgh SC
Instructed
by:
Edward Nathan Sonnenbergs
For the First
Respondent:
Adv. A
Redding SC with S Collet
Instructed
by:
Larry Dave Attorneys
[1]
(1999)
20 ILJ 329 (LC) at 395 para B
[2]
See
Betlane
v Shelly Court CC
(2011 (1) SA 388
(CC) para 29 and also
Kleynhans
v Van der Westhuizen NO
1970
(1) SA 565
(0) at 568E).
[3]
(2003)
(5) SA 1 (C)
[4]
1978
(1) SA 173
(W) at 177
[5]
at
177H – 178A
[6]
See
Polyoak
(Pty) Ltd v Chemical Workers Industrial Union & Others
(supra
at p396 para B).
[7]
CASE
NO: D 440/09 at para 16
[8]
1998
(3) SA 281
(T) at 289 I-J
[9]
2012
(8) BCLR 840
(CC) at para 51 - 52
[10]
Polyoak
(Pty) Ltd v Chemical Workers Industrial Union & Others
(supra)
at 396 - I
[11]
Which
provides that a registered trade union may authorise a picket by its
members and supporters for the purposes of peacefully
demonstrating-
(a)
In support of any protected strike; or
(b)
In opposition to any lock-out
[12]
See
SA
Polymer Holdings (Pty) Ltd t/a Mega-Pipe v Llale and Others
(1994) 15 ILJ 277 (LAC)
[13]
Provision
relating to accounting records and audits
[14]
Duty
to keep records
[15]
Duty
to provide information to the registrar
[16]
Which
provides that; The fact that a person is a member of a registered
trade union or a registered employers’ organisation
does not
make that person liable for any of the obligations or liabilities of
the trade union or employers’ organisation
[17]
At
paragraph 24 p12 of the written heads of argument.
[18]
[2002]
1 BLLR 84 (LC)
[19]
[2006] ZASCA 52
;
(2006)
4 SA 326
(SCA) at para 42
[20]
(2009)
30 ILJ 1845 (LC)
[21]
Annexure
“CRA1” of the Applicant’s replying affidavit in
the contempt application