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[2014] ZALCJHB 227
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Metsimaholo Local Municipality v South African Municipal workers Union and Others (J1561/2014) [2014] ZALCJHB 227 (27 June 2014)

REPUBLIC
OF SOUTH AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
NOT REPORTABLE
CASE NO: J1561/2014
METSIMAHOLO
LOCAL
MUNICIPALITY                                                                  Applicant
and
SOUTH
AFRICAN MUNICIPAL WORKERS
UNION                                     First

Respondent
THE
PERSONS MENTIONED IN ANNEXURE ‘A’               Second

to Further Respondents
Heard:
26 June 2014
Delivered:
27 June 2014
JUDGMENT
TLHOTLHALEMAJE,
AJ
Introduction:
[1]
The Applicant approached the Court on an urgent basis to seek an
interim order declaring the strike embarked upon by the Respondents

as prohibited or in breach of sections 64 and 65 of the Labour
relations Act 66 of 1995 (The LRA); declaring the refusal or failure

of the Second to Further Respondents to tender their services and
work in terms of their respective contracts of employment applicable

to them as a strike that is unlawful and unprotected for want of
compliance with sections 64 an 65 of the LRA; and restraining
and
interdicting the Respondents from engaging in certain actions or
conduct.
Background:
[2]
The Second to Further Applicants have embarked on a complete work
stoppage with effect from 17 June 2014. The strike action
followed
upon the following sequence of events;
2.1
On 17 January 2014, the First Respondent (SAMWU) had referred a
dispute of mutual interest
to the South African Local Bargaining
Council (SALGBC) for conciliation. The issue in dispute pertained to
the Applicant’s
alleged refusal to implement the resolutions of
the Local Labour Forum with regard to salary disparities and Group
Scheme. At about
the same time, SAMWU had also referred a dispute
pertaining to interpretation and/or application of a collective
agreement.
2.2
A conciliation hearing in respect of the first dispute was held on 17
March 2014 before
Commissioner M Mohlala of the SALGBC. Following the
failure to resolve the dispute, Mohlala had then issued a certificate
of outcome,
enabling SAMWU to exercise the right to strike. The
parties had nevertheless agreed to a process of private mediation
under Mohlala
outside of the SALGBC.
2.3
The private mediation process took place on 19
th
, 20
th
and 23
rd
of March 2014. Mohlala was to compile a report
recording the issues discussed and agreed upon. Such a report was
compiled and submitted
on or around 23 March 2014.
2.3
The status of the report was placed in dispute. Amongst the
‘agreements’ Mohlala
had noted was that the Respondents
would not exercise their right to strike at least until 30 June 2014.
The Applicant held the
view that arising from the report, the issues
that were the subject-matter of the dispute in respect of which the
certificate of
outcome was issued on 17 March 2014 were resolved. The
Respondents’ view on the other hand was that Mohlala had
invited the
parties to comment on the report, and having perused it,
they were not satisfied that the report correctly recorded the
agreement
reached between the parties. Even though some of these
issues were highlighted by the First Respondent in its correspondence
with
Mohlala and the Applicant, the Respondent did not appear to have
issues with the ‘agreement’ pertaining to withholding
of
strike action until 30 June 2014, whilst the parties addressed any
outstanding issues. SAMWU further held the view that attempts
to have
those issues resolved had not succeeded as the parties never
reconvened to finalise the agreement reached at private mediation.
On
13 June 2014 SAMWU had issued a strike notice, indicating that its
strike was to commence on 17 June 2014
Urgency:
[3]
The Applicant submitted that the application should be dealt with on
an urgent basis in that  any unlawful violation of
rights of
individuals and / or community members requires and justifies an
urgent redress from the Courts; that an unlawful strike
coupled with
threats and intimidation of others not participating in the strike
disturbs labour peace as well as peace in the broader
community, and
that there was no justification for  communities relying on the
Applicant for vital services to suffer extreme
prejudice as a result
of unlawful strike.
[4]
The Respondents on the other hand denied that the application was
urgent in that there was no unlawful violation of rights for

individuals and/or the community members at all; that the strike was
not unlawful and that there are no threats and intimidation
of others
at all. In this regard, it was submitted that the allegations made by
the Applicant regarding intimidation were vague
and unsubstantiated.
Furthermore, it was submitted that all services are still being
rendered by other employees who are not on
strike.
[5]
It is accepted that this Court has powers to grant urgent interim
relief in terms of the provisions of section 158 (1) (a) (i)
of the
Act.
Urgent
applications are further dealt with in terms of Rule 8 of the Rules
for the Conduct of Proceedings in the Labour Court. The
requirements
of this rule were explained by the Labour Appeal Court in
Jiba
v Minister: Department of Justice and Constitutional Development and
Others 2010 31 ILJ 112
[1]
as follows;
“
Rule
8 of the rules of this court requires a party seeking urgent relief
to set out the reasons for urgency, and the degree to which
the
ordinary applicable rules should be relaxed is dependent on the
degree of urgency. It is equally trite that an applicant is
not
entitled to rely on urgency that is self-created when seeking
deviation from the rules”.
[6]
In dealing with the requirement of urgency, this Court in
BIFAWU
v South African Football Association and Another
[2]
,
per the Honourable Basson J had held the following;
‘
It
is trite that
an
applicant who approaches this Court on the basis of urgency must make
out a case for urgent relief on papers in sufficient particularity

(See in this regard:
National
Union of Mineworkers v Black Mountain - A Division of Anglo
Operations Ltd
(Citation
omitted) where the legal position has been summarized as follows:
‘
[11]
It is trite that an applicant who approaches this court on an urgent
basis must make out a case for urgent relief on the papers
in
sufficient particularity. This much is clear from rule 8 of the
Rules of the Labour Court which expressly states that a
party that
applies for urgent relief must file an application that complies with
the requirements of Rule7 (1); 7 (2) and
7(3)  and
if applicable 7(7) of the rules. Rule 7 (2
)
expressly requires that the affidavit
in support of the application
must
contain
the following:
(a)
the
reasons for urgency and why urgent relief is necessary;
(b)
the
reasons why the requirements of the rules were not complied with, if
that is the case; and
(c)
if
a party brings an application in a shorter period that that provided
for in terms of s 68 (2) of the Act, the party must
provide
reasons why a shorter period of notice should be permitted.
[12]
Urgency in itself does not relieve a party from this obligation and
the applicant should, in as much detail as possible, place
such facts
that are necessary before the court and which will enable this court
to decide whether the forms and service provided
for in the rules
should be dispensed with. Only once an applicant has persuaded the
court that sufficient grounds exist which necessitates
a relaxation
of the rules and ordinary practice, will the court proceed to
consider the matter as one of urgency. The extent to
which the court
will allow parties to dispense with the rules relating to time
periods will depend on the degree of urgency in
the matter. (footnote
omitted)
[7]
In argument, Mr. Venter on behalf of the Respondents had submitted
that not every strike situation should be treated as urgent,
and that
the circumstances of each case should be looked at. I am in agreement
with the Respondents in this case that the averments
made on behalf
of the Applicant as to the reason the application should be treated
with urgency are indeed vague and lacking in
detail and
particularity, more particulalry in respect of allegations relating
to acts of misconduct. It is common knowledge that
strikes in our
country are generally characterised by violence and other
unacceptable forms of conduct on the part of the striking
employees.
However, prior to a strike being interdicted, considerations of the
employees’ right to strike as enshrined in
section 23 (2) (c)
of the Constitution, and whether the requirements of sections 64 and
65 have been met should be taken into account.
In this regard then,
it is not sufficient in the light of what is known to be the
characteristics of these strike actions to simply
grant an interdict
in the absence of details surrounding acts of violence and
intimidation.
[8]
In this case, the Applicant had in its founding affidavit, merely
asserted
inter alia
that ‘some leaders of the Second
Respondent (who are trade union representatives or shop stewards of
the First Respondent)’
have already threatened to commit acts
of sabotage. Furthermore, Mr. Hutchinson on behalf of the Applicant
had submitted a letter
from the Applicant’s attorneys of record
highlighting alleged acts of criminality and a photograph of evidence
of damage
to a vehicle. These items in my view do not take the matter
any further as on their own they do not prove anything, especially
since they were not produced by way of affidavit. These
unsubstantiated assertions on their own are not sufficient to enable
the
Court to determine whether the application is indeed urgent.
[9]
Notwithstanding the above, it is further trite that the applicant
approaching the court on an urgent basis must demonstrate
that it had
done so timeously. In further explaining the need for the application
to be treated with urgency, the Applicant had
submitted that having
issued an ultimatum on 17 June 2014, the First Respondent had not
responded to requests for its intervention
in dissuading and stopping
the Second to Further Respondents from continuing with the strike.
Furthermore, meetings were arranged
with the First Respondent’s
shop stewards on 20
th
and 21
st
June 2014 to
discuss and resolve the new issues emanating from the private
mediation. The shop stewards had made an undertaking
that they would
revert to the Applicant after seeking a mandate from the Second to
Further Respondents. They did so on 22 June
2014 and informed the
Applicant that the strike would continue. The Respondents had denied
that there was any engagement between
the parties on 22 June 2014. Be
that as it may, the Applicant had only approached its attorneys of
record on 22 June 2014 to arrange
for consultations, which were
scheduled for 23 June 2014. The application was filed with the Court
on 25 June 2014.
[10]
Inasmuch as I am not satisfied that the Applicant has not provided
details in regard to allegations of misconduct and acts
of violence
and intimidation on the part of the striking employees, I am however
satisfied that in the light of the history of
this dispute between
the parties, and concerted efforts to find a solution to the dispute,
the Applicant had acted in due haste
in approaching the Court
following the issuing of the strike notice. In this regard, in the
light of the timing of the issuing
of the notice of intention to
strike, the ultimatum issued by the Applicant, and attempts between
the parties to resolve the dispute
between 20 and 22 June 2014, it
cannot be said that the Applicant was dilatory in approaching the
Court. To this end, it is further
my view that the Court should
permit shorter periods as contemplated in section 68 (2) of the LRA,
more particularly since the
Respondents were able to file an
answering affidavit and given an opportunity to respond and be heard
as contemplated in s68 92)
(b) of the LRA.
The
Strike notice:
[11]
Central to this application in my view is the issue of whether the
Respondent had properly notified the Applicant of its intention
to
embark on the strike action. Thus even if I amy be incorrect in my
findings regarding the issue of urgency,the issue of the
timing of
the notice takes precedence.
[12]
The Applicant had raised issue with the fact that the Respondents had
instead of giving 7 days’ notice of the commencement
of the
strike, only given four days’ notice in breach of the
provisions of section 64 (1) (d) of the LRA, and further that
the
alleged issues in dispute on which the strike was embarked upon do
not pertain to the issues that were referred for conciliation,
but to
new issues emanating from the agreement facilitated by Mohlala
through private mediation. In the light of what the Applicant

perceived to be an illegal strike, an ultimatum was issued on 17 June
2014 after the commencement of the strike.
[13]
The Respondents had conceded that as notice of intention to strike
was issued on 13 June 2014, and since the strike action
had commenced
on 17 June 2014, only four days’ notice was issued. It was
however contended that section 64 (3) provided for
exceptions for the
requirements of section 64 (1), and further that the provisions of
sections 64 (3) (a) and (b) were applicable
in this instance.
Furthermore, the Respondents had submitted that the parties were
members of the SALGBC and that the strike conformed
with the
procedures in the Main Collective Agreement.
[14]
This Court in
City
of Matlosana v SALGBC and others
[3]
confirmed that a municipality, such as the employer in this case, is
a State at local government level as contemplated in section
64 (1)
(d) for the purposes of issuing a notice of intention to strike. The
Court in that matter had concluded that a notice of
intention to
strike had to be in compliance with section 64 (1) (d) of the LRA,
more particularly when the rationale for the seven
days notice had to
be looked at. In this regard, the Court per Pillay J held as follows;
‘
One
of the reasons for giving notice is that the State provides essential
and necessary services to the public. As discussed above,
such
services are rendered at national, provincial and local levels. No
alternative provider of many components of such services
is readily
available, especially to poor communities. There is therefore a
rational basis for requiring seven days notice for strikes
in all
three tiers of government. In the circumstances, the court finds that
the union has to give seven days notice to the employer’
[4]
[15]
In this case, one of the concerns raised surrounding the strike
action was that some employees, who performed essential services

functions have also joined the strike. The Respondents had conceded
that this was indeed the case, and these employees could embark
on
strike action as the agreement on essential and minimum services had
lapsed on 31 December 2013. A similar argument was raised
in
SAMWU
v City of Tshwane and Another
[5]
,
and the Honourable Molahlehi J had dealt with the issue in the
following terms;
‘
It
is trite that the terms of a collective agreement are not only
binding on the individual employees but as a matter of law are

incorporated into the employees’ contract of employment
(Reference omitted). It is therefore my view that even though the

2006 collective agreement lapsed, its provisions having been
incorporated into the employment contracts of the individual members

of the applicant continued beyond the life span of the collective
agreement. The shift system remained as was before the lapse
of the
collective agreement because its provisions became part of the
individual employees’ employment contracts. In other
words
those terms and conditions set out in the collective agreement
remained in force even after the lapse of the collective agreement

and would remain as such until another collective agreement was
concluded changing those provisions that had been incorporated
into
individuals’ contracts’
[16]
In the light of the circumstances of this case, and in line with the
authorities referred to above, the Respondents were obliged
to give
seven days’ notice of intention to strike as contemplated in
s64 (1) (d) of the LRA. The exceptions in s64 (3) of
the LRA do not
find application in this case. Secondly, by virtue of non-compliance
with the provisions of section 64 (1) (d) of
the LRA, it follows that
the strike action embarked upon by the Respondents is unlawful and
unprotected, and the question as to
whether the issues in dispute
were resolved or not become moot for the purposes of this
application. In the light of these conclusions,
it is not deemed
necessary to deal with other aspects or factors applicable to such
applications.   To this end, the
following order is deemed
to be appropriate;
Order:
i.
The draft order submitted on behalf of the
Applicants which is marked ‘X’ is made an order of court.
ii.
The return date is set at 9 October 2014.
iii.
There is no order as to cost
Tlhotlhalemaje, AJ
Acting Judge of the
Labour Court of South Africa
Appearances:
For
the Applicants:
Adv. W. Hutchinson
Instructed
by:

Lebea & Associates
For
the Respondent:
Adv. R Venter
Instructed
by:

Maenetja Attorneys
[1]
2010)
31 ILJ 112 at para 18
[2]
(J
2986/2012) [2013] ZALCJHB 200 (26 July 2013) at para 4
[3]
(2009)
30 ILJ 1293 (LC)
[4]
At
page 7
[5]
(2014)
35 ILJ 241 (LC)  at para 18