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[2014] ZALCPE 6
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MSC Logistics (Pty) Ltd and Another v NUMSA and Others (P99/14) [2014] ZALCPE 6 (21 May 2014)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH
JUDGMENT
REPORTABLE
CASE
NO: P99/14
In
the matter between:
MSC
LOGISTICS (PTY)
LTD
First
Applicant
MSC
DEPOT (PTY)
LTD
Second
Applicant
and
NUMSA
First
Respondent
EMPLOYEES
set out in the annexure to the
Notice
of Motion Marked
“X”
Second
and Further Respondent
Heard:
16 May 2014
Delivered:
21 May 2014
Summary:
The notice of application referred to in section 68 (2) of the LRA
consists of a notice of motion and founding papers.
A letter
informing the respondents of the applicant’s intention to
approach courts for appropriate relief does not suffice.
Notice
to interdict a secondary strike in terms of section 66 of the LRA.
JUDGMENT
LALLIE
J
Introduction
[1]
The applicants approached this Court on an urgent basis seeking a
rule
nisi
interdicting the respondents from inciting and/or
participating in a secondary strike called by the first respondent
which was
due to commence on 15 May 2014.
[2]
The first and second applicant operate in the logistics business and
marine container industry respectively. They have operations
in Port
Elizabeth, Uitenhage and East London. On 9 May 2014, the first
respondent served the applicants with a notice in terms
of section 66
(2) (b) of the Labour Relations Act 66 of 1995 (“the LRA”)
that the second and further applicants would
participate in a
secondary strike from 16 May 2014. The secondary strike, is intended
to support the first respondent’s members
working for the
Transnet Port Terminals at Ngqura and Port Elizabeth ports who are on
strike.
[3]
The applicants filed the current application on 14 May 2014 setting
the application down for 14h00 the following day. On 15
May 2014, the
matter was postponed to 16 May 2014 at 14h00 and the parties were
ordered to file the answering and replying affidavits
before it was
heard. The strike was suspended pending the finalization of this
application and costs were reserved. In the answering
affidavit, the
respondents raised a point
in
limine
to the effect that
the applicants’ case was fatally flawed in that the applicants
failed to comply with section 68 (2) of
the LRA. Section 68 (2)
required the applicants to have given the respondents 48 hours’
notice of this application. The applicants
denied and sought to rely
on the following letter which they forwarded to the first respondent
on 13 May 2014:
‘
RE: NOTICE OF
SECONDARY STRIKE
We act for MSC Logistics
(Pty) Ltd and MSC Depots (Pty) Ltd.
We have been given a copy
of your notice of a secondary strike due to commence at our client’s
premises on 16 May 2014.
We are of the view that
any secondary strike would not comply with section 66 (2)(c) of the
LRA in that the nature and extent of
the secondary strike is
unreasonable in relation to any effect that it may have on Transnet
Port Terminals.
We therefore ask you to
confirm that your members will not participate in the secondary
strike. We request this confirmation by
close of business today,
failing which we shall have no alternative but to approach the Labour
Court on an urgent basis for appropriate
relief.
This letter serves as
notice of our intention to approach the courts as a matter of
urgency.
Should you wish to
discuss the matter please feel free to contact the writer on
082 454 1951.
Yours faithful’.
[4]
Section 66 (3) provides that subject to section 68 (2) and (3) of the
LRA the secondary employer may apply to the Labour Court
for an
interdict to prohibit or limit a secondary strike that contravenes
subsection (2). Section 68 (2), provided as follows:
‘
(2) The Labour
Court may not grant any order in terms of subsection (1) (a) unless
48 hours’ notice of the application has
been given to be
respondent: However, the Court may permit a shorter period of notice
if-
(a)
the applicant has given written notice to the respondent of
the
applicant’s intention to apply for the granting of an order;
(b)
the respondent has given a reasonable opportunity to be heard before
a decision
concerning that application is taken; and
(c)
the applicant has shown good cause why a period shorter than 48 hours
should
be permitted.
[5]
In
NASECGWU
and Others V Donco Investments (Pty) Ltd ,
[1]
the
giving of notice was held to be aimed at giving the recipient an
opportunity to consider its position and decide on an appropriate
response. I find the following dictum
in
Automobile Manufacturers Employers’ Organization v Numsa
[2]
opposite:
‘…
The
wording of the Act refers to a notice of application. A notice of
application is generally a notice of motion together with
supporting
affidavits. In my opinion this is a construction which must be given
to section 68 (3). A respondent, such as the union
and other
respondents in this case require to know what the case is that is
being brought against them .They need to know whether
they can oppose
the case and they require more than simply the gist of the case. The
applicant’s attorney’s letter
of 26 August 1998 sets out
the relief which is going to be claimed and the grounds but not the
facts which are to be relied upon’.
[6]
Section 68 (2) (a) refers to a notice of the application. I am of the
view that ‘notice of an application’ in section
68 (3)
has the same meaning as ‘notice of the application’ in
section 68 (2). In giving notice in terms of section
68 (2) the
applicants were therefore required to file a notice of motion with
supporting affidavits in order to achieve the purpose
for which the
notice is given. The purpose being to afford the respondents a
fair opportunity to consider and formulate their
response to the
notice.
[7]
The letter the applicants seek to rely on is a response to the
secondary strike notice. It expresses the applicants’ view
of
the notice, seeks confirmation that second and further respondents
would desist from participating in the secondary strike and
conveys
the applicant’s intention to approach this Court on an urgent
basis for appropriate relief. The nature of the relief
in not
disclosed. It also informs the respondents that the letter serves as
notice of intention to approach the courts as a matter
of urgency. It
gives not details of the courts and the purpose for which they will
be approached. The content of the letter does
not fulfill the
requirements of giving notice of the application. The respondents’
averment that the applicants did not give
notice in terms of section
68 (2) (a) is valid. The applicants also did not give reasonable
notice as envisaged in section 68 (2)
(b) as they gave the
respondents less that 24 hours’ notice. They also failed to
show good cause why a period shorter than
48 hours should be
permitted. I considered the applicants’ submission to move the
condonation application form the bar. The
circumstances of this case
required a proper condonation application which included affording
the respondents an opportunity to
decide whether to oppose it because
section 68 has the potential of violating the respondents’
constitutional right to participate
in strike action.
[8]
Considerations of the law and fairness require that a costs order be
granted against the applicants. The respondents have successfully
opposed this application and fairness requires that they are not out
of pocket as a result of defending this application.
[9]
In the premises, the following order is made:
9.1
The point
in limine
is upheld.
9.2
The application is struck from the roll.
9.3
The order granted on 15 May 2014 suspending the strike falls away.
9.4
The first and second applicants are ordered to pay the respondents’
costs of this
application including the costs reserved on 15 May
2014.
_______________________________
Lallie
J
Judge
of the Labour Court of South Africa
Appearances
For
the Applicants:
Advocate Buchanan
SC
Instructed
by:
Chris Baker & Associates
For
the Respondents:
Mr Niehaus of Niehaus Attorneys
[1]
[2010] 3 BLLR 271 (LC)
[2]
[1998] 11 BLLR 1116
(LC) at 1118 E-F