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[2014] ZALCJHB 60
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Anglo American Platinum Ltd and Another v Association of Mineworkers and Construction Union and Others (J158/14) [2014] ZALCJHB 60; (2014) 35 ILJ 2832 (LC) (6 March 2014)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT JOHANNESBURG
Reportable
CASE
NO J 158/14
ANGLO
AMERICAN PLATINUM
LTD 1
ST
APPLICANT
RUSTENBURG
PLATINUM MINES
LTD 2
ND
APPLICANT
and
ASSOCIATION
OF MINEWORKERS
AND
CONSTRUCTION UNION
1
ST
RESPONDENT
JOSEPH
MATHUNJWA
2
ND
RESPONDENT
JIMMY
GAMA
3
RD
RESPONDENT
INDIVIDUALS
LISTED IN ANNEXURE TO
THE
NOTICE OF
MOTION FURTHER
RESPONDENTS
Application
heard: 5 March 2014
Judgment
delivered: 6 March 2014
JUDGMENT
VAN
NIEKERK J
Introduction
[1]
This case has its origins in a strike called by the first respondent
(the union) on 23 January 2014 on the applicants’
mines, a
strike that remains ongoing. On 24 January 2014, this court (per Cele
J) granted an order in the form of a rule
nisi
, coupled with
an interim interdict. The interpretation to be given to that order is
central to the present application in which
the applicants seek to
have the respondents held in contempt of court for their failure to
comply with the order and sanctioned
appropriately.
[2]
The application first came before the court on 21 February 2014. At
that stage, the union and the individual respondents had
not filed an
answering affidavit. It was agreed that in respect of the first,
second and third respondents (the union, its president
and general
secretary respectively), the parties would file affidavits and that
the matter would be argued on 5 March 2014. In
respect of the
remaining respondents, it was agreed that answering and replying
affidavits would be filed at a later stage. These
proceedings (and
this judgment) are accordingly limited to the allegations of contempt
made against the first, second and third
respondents.
The
order
[3]
The order that is the subject of these proceedings was granted after
the applicants filed an urgent application. The union’s
attorneys were advised on the morning of the 24
th
that an
application would be set down in the same afternoon. The union and
the other respondents did not oppose the application,
but it is fair
to say that the order was not granted by consent. In a letter
addressed by the second respondent to the applicants’
attorneys
on 24 January, the second respondent provided the assurance that the
union did not condone violence by any of its members
and that “
We
agree to an order that gives effect to prevent violence
”.
The order that was ultimately granted reflects a draft prepared by
the applicants. It reads as follows:
“
Having read the
documents and having considered the matter:
IT
IS ORDERED THAT:
1.
The provisions of the Rules of this 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 this Court’s Rules.
2.
The short notice of the application in
terms of Section 68(2) of the Labour Relations Act is condoned.
3.
A
Rule Nisi
is issued calling upon the Respondents herein to appear and show
cause on
14 March 2014 at 10:00
as to why a final Order should not be granted in the following terms:
3.1.
DIRECTING
that
the Second to Further Respondents are interdicted and restrained from
instigating, inciting or engaging in:
3.1.1
.
any unlawful conduct interfering with or
aimed at interfering with the business of the Applicants;
3.1.2.
any unlawful conduct intimidating and/or
preventing any of the Applicants’ employees, especially the
employees involved in
essential services, minimum services,
maintenance services and other services critical to the Applicants’
health and safety
obligations, the general upkeep and operation of
the mine from tendering their services to the Applicants;
3.1.3.
any unlawful conduct which damages the
property of the Applicants; and
3.2.
DIRECTING
that
the First Respondent is interdicted and restrained from instigating,
inciting or engaging the Second to Further Respondents
in engaging,
inciting or instigating:
3.2.1.
any unlawful conduct interfering with or
aimed at interfering with the business of the Applicants;
3.2.2.
any unlawful conduct intimidating and/or
preventing any of the Applicants’ employees, especially the
employees involved in
essential services, minimum services,
maintenance services and other services critical to the Applicants’
health and safety
obligations, the general upkeep and operation of
the mine from tendering their services to the Applicants;
3.2.3.
any unlawful conduct which damages the
property of the Applicants; and
4.
ORDERING
that the provisions of paragraphs 3.1 to 3.2.3 shall
operate with immediate effect as an interim order pending the
finalisation
of this application.
5.
ORDERING
the First Respondent to communicate, on an urgent
basis, to its members the picketing rules attached to the Notice of
Motion as
an annexure marked “A”.
6.
ORDERING
the First Respondent to ensure compliance by its
members with the picketing rules attached to the Notice of Motion as
an annexure
marked “A”.
7.
ORDERING
the Second to Further Respondents to comply with the
picketing rules attached hereto as an annexure marked “A”.
8.
ORDERING
the South African Police Services to enforce this
Order.
9.
ORDERING
the Respondents who oppose this application to be
held jointly and severally liable to pay the costs of the
application.
10.
DIRECTING
that the service of the
Rule Nisi
be effected
as follows:
10.1.
Upon the First Respondent by faxing it to the First Respondent’s
attorneys of record.
10.2.
Upon the Second to Further Respondents per hand by displaying copies
thereof on the notice boards at the Applicants’
premises, which
are usually used by the Applicants to communicate with its employees
and by distributing copies of the order to
as many of the First to
Further Respondents as may request same.
10.3.
Upon the Second to Further Respondents whose cellphone numbers are
known to the Applicant by sms with the following wording:
“
The
Labour Court of South Africa has interdicted you from committing
violent acts and from stopping any fellow employee to go to
work.
The Labourt
(sic)
Court has also ordered that you comply with
the picketing rules which are available from AMCU and HR.”
BY
THE COURT
REGISTRAR”
The
relevant legal principles
[4]
The principles applicable in an application such as the present are
well- established. In
Fakie v CCII Systems (Pty) Ltd
[2006] ZASCA 52
;
2006 (4)
SA 326
(SCA), the Supreme Court of Appeal observed that the civil
process for a contempt committal is a ‘peculiar amalgam’
since it is a civil proceeding that invokes a criminal sanction or
its threat. A litigant seeking to enforce a court order has
an
obvious and manifest interest in securing compliance with the terms
of that order but contempt proceedings have at their heart
the public
interest in the enforcement of court orders (see paragraph [8] of the
judgment). The court summarised the position as
follows:
‘
[42] To sum up:
(a)
The civil contempt procedure is a valuable and important mechanism
for securing compliance with court orders, and survives
constitutional scrutiny in the form of a motion court application
adapted to constitutional requirements.
(b)
The respondent in such proceedings is not an ‘accused person’,
but is entitled to analogous protections as
are appropriate to motion
proceedings.
(c)
In particular, the applicant must prove the requisites of contempt
(the order; service or notice; non-compliance; and
wilfulness and
mala fides) beyond reasonable doubt.
(d)
But once the applicant has proved the order, service or notice, and
non-compliance, the respondent bears an evidential
burden in relation
to wilfulness and mala fides: 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.
(e)
A declarator and other appropriate remedies remain available to a
civil applicant on proof of a balance of probabilities.’
Analysis
[5]
It is not in dispute that the above order was granted on 24 January
2014, nor is it in dispute that the order was served on
the first to
third respondents. What is central to these proceedings is whether or
not they have complied with the order, an issue
that is dependent on
a determination of what it is that the order required the respondents
to do or not to do. The applicants’
case is that the union and
its office bearers, and in particular the second and third
respondents, are in breach of the order because
they failed to
communicate the picketing rules to union members and ensure
compliance by union members with those rules. Some 20
separate
instances of non-compliance are recorded in the founding affidavit,
amongst them instances where it is alleged that members
of the union
attended meetings armed with knobkerries and sticks, gathered in
places other than designated picketing areas, carried
dangerous
weapons, intimidated those who wished to work and obstructed access
to the applicants’ mines. The applicants also
aver that the
second and third respondents have gone so far as to advise members
not to comply with the picketing rules, since
the union was not a
party to their formulation. In the answering affidavit, the
respondents note that they intend to respond to
these averments in
the later proceedings that concern the 4
th
to 39
th
respondents. For present purposes, the first to third respondents
have been content to rely on broad statements to the effect that
the
union does not condone unlawful behaviour, that it has consistently
advised its members that they ought to conduct themselves
in a
lawful, peaceful and orderly manner and that of those who do not will
be disciplined. Whether or not any union member has
been disciplined
is not apparent from the papers.
[6]
The primary issue to be determined in these proceedings is whether
the order granted on 24 January 2014 required the first,
second and
third respondents to act in terms of paragraphs 5, 6 and 7 of the
order, i.e. whether the union was obliged immediately
to communicate
the contents of the picketing rules to its members and to ensure that
they complied with the rules, or whether the
terms of the order do no
more than require the respondents to show cause on the return date
why a final order should not be made
to this effect.
[7]
Adv. Cassim SC, who appeared for the respondents, submitted that
properly construed, paragraphs 5, 6, 7 and 8 of the order have
no
immediate binding effect as an order of court. First, unlike the
provisions of paragraphs 3.1 to 3.2.3 of the order, they are
not made
to operate as an interim order. In other words, paragraphs 5, 6, 7
and 8 are subject to the broader preamble to the order
which
contemplates no more than that the respondents appear on the return
date (14 March 2014) to show cause why a final order
should not be
granted in those terms. On this interpretation, only the provisions
of paragraphs 3.1 to 3.2.3 operate as an interim
order with immediate
effect, pending the finalisation of the main application. This much,
it was submitted, is specifically recorded
in paragraph 4 of the
court order. Since the respondents have until 14 March 2014 to show
good cause why paragraphs 5, 6, 7, 8
and 9 should not be made an
order of court, the picketing rules are not the subject of any
existing court order and to the extent
that the crux of the
applicant’s case in the present application is a failure by the
union and its office bearers to comply
with the picketing rules or
take steps to ensure compliance with them, there was no obligation on
the respondents to do so. In
the circumstances, they cannot be in
contempt of any court order.
[8]
Adv. Bruinders SC, who appeared for the applicants, urged me to adopt
a different interpretation of the order. He submitted
that while
paragraphs 3.1 to 3.2.3 operate with immediate effect as an interim
order, the balance of the order, and in particular
paragraphs 5, 6
and 7, constitute final orders. The respondents were thus obliged
immediately to comply with the provisions of
those paragraphs.
[9]
It seems to me, viewing the terms of the order in context, that a
strong case can be made for the proposition that the respondents’
obligations in relation to the picketing rules are not the subject of
any interim interdict or final order and that at most, the
order does
no more than call on the respondents to show cause on 12 March 2014
why a final order should not be granted in the terms
they
encapsulate. There are three indications that support this
interpretation. The first is the nature of the order itself.
A rule
nisi
, by definition, is an order directed at particular
persons calling on them to appear in court on a certain date and show
cause
why the court should not grant a final order. The court may
grant interim relief by ordering that the rule
nisi
or parts
of it operate as a temporary interdict.
[10]
In the present instance, the form of the order implies that but for
that relief specifically designated as the subject of a
temporary
interdict, a final order will be granted if and only if on the return
date, the court determines that the applicant has
made out a case for
final relief. Indeed, in the present instance, paragraph 4 indicates
which part of the rule is to operate as
a temporary interdict. As I
have indicated, the temporary interdict is limited to paragraphs 3.1
to 3.2.3 of the order. Paragraph
9 of the order is also a strong
indication that the provision of paragraphs 5, 6 and 7 were not
intended to constitute final orders.
Paragraph 9 seeks to make
respondents who oppose the application liable for costs, jointly and
severally. Given the circumstances
in which the order was granted
(effectively on an
ex parte
basis), the intention is clearly
to alert the respondents that their opposition to the confirmation of
the rule
nisi
stands, potentially at least, to attract a costs
order. The significance of paragraph 9 is that it is a ‘stand-alone’
paragraph, like paragraphs 5, 6 and 7, separate from those parts of
the order specifically recorded to be orders made with immediate
effect. This suggests that all of these paragraphs are subject to the
preamble that appears in paragraph 3, which calls on the
respondents
to show cause on 14 March 2014 why a final order should not be
granted.
[11]
In making these observations, I do not intend to interpret the order
in any definitive manner; for present purposes, it is
sufficient for
me to find, which I do, that there is an element of ambiguity in the
order. Once there is ambiguity and ambivalence
in an order, it will
generally not be open to a court to make a finding of wilful
non-compliance and mala fides, especially where
the respondents rely,
as they do in the present instance, on an interpretation of an order
that is not far-fetched or unreasonable
and where their conduct is
not in conflict with their understanding of the terms of order so
understood.
[12]
For these reasons, in my view, the applicants have failed to
establish that the first to third respondents have failed or refused
to comply with the order granted on 24 January 2014. The application
accordingly stands to be dismissed.
[13]
In regard to costs, Adv. Cassim submitted that the application filed
on 24 January 2014 and the present application were little
more than
a stratagem to undermine the ability of the union and its members to
exercise the right to strike, and that an order
for costs was
therefore appropriate.
[14]
It would be naïve to think that in the context of industrial
action, parties do not resort to litigation as a means to
an end.
Applications to challenge the lawfulness of strikes and lock-outs and
to declare the conduct and actions of managers and
workers
respectively to be unlawful are routine fare in the urgent court. The
real purpose of many of these applications, no doubt,
is to bring
pressure to bear on the opposing party – this is evidenced by
the large numbers of rules
nisi
that are granted, only to be
discharged weeks later once the fray giving rise to the application
is over. What the court ought
to guard against is the abuse of its
process. There is a fine line between seeking tactical advantage
through litigation and abuse
of process, but it is a line that
parties ought to respect and which the court ought to maintain.
[15]
Nothing in the papers before me to indicate that the present
application falls into the category of abuse. The applicants were
entitled, as they did, to protect and advance their interests by
seeking an order that union members should not act unlawfully,
and
that there should be compliance with the picketing rules. Given the
terms of the order that was granted, it is by no means
an abuse of
process to suggest, as the applicants have, that the respondents were
in contempt of the order. Equally, the union
has not hesitated in
present circumstances to use the law to secure tactical advantage. In
particular, the temporal coincidence
in the filing of the answering
affidavit and the lodging of an application to rescind the picketing
rules more than a month after
they were issued, reeks of expediency.
The union’s case in relation to the picketing rules borders on
the disingenuous –
the second respondent, Mathunjwa, states in
the answering affidavit that he has urged members to comply with the
picketing rules.
In the same breath, the unions seeks to make the
case that the rules are invalid or should not be observed because
they were established
unilaterally.
[16]
In any event, it is practice in this court not to grant orders for
costs where the parties to the dispute are engaged in collective
bargaining, and where a costs order runs the risk of prejudicing the
relationship between them, especially where that relationship
is
fragile.
For
the above reasons, I make the following order:
1. In
respect of the first to third respondents, the application is
dismissed.
ANDRE VAN NIEKERK
JUDGE OF THE LABOUR
COURT
APPEARANCES
For
the applicants: Adv. T Bruinders SC, instructed by ENS Attorneys
For
the respondents: Adv. N Cassim SC, instructed by Larry Dave
Attorneys.