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[2015] ZALCJHB 29
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Freshmark (Pty) Limited v Mabasa and Others (J 2636/14) [2015] ZALCJHB 29 (10 February 2015)
REPUBLIC OF SOUTH
AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
Judgment
Case No: J 2636/14
DATE: 10 FEBRUARY 2015
Not Reportable
In the matter between:
FRESHMARK (PTY)
LIMITED
.............................................................
Applicant
And
FREDERICK
MABASA
...........................................................
First
Respondent
SOUTH AFRICAN
TRANSPORT AND ALLIED
WORKERS
UNION
............................................................
Second
Respondent
TC
NKOSI
..............................................................................
Third
Respondent
VELEMINAH
MOKOENA
....................................................
Fourth
Respondent
Heard: 30 January 2015
Judgment: 10 February
2015
Summary : Contempt
application, whether statements made by a union office bearer
constitutes contempt of a Court Order.
Judgment
AC
BASSON, J
[1]
This
is an application to have the second respondent (the South African
Transport and Allied Workers Union – hereinafter referred
to as
“the union”) declared to be in contempt of a court order
of this Court granted on 29 October 2014 (“hereinafter
referred
to as “the order”).
[2]
The
salient part of the order reads as follows:
“
1.1
Interdicting and restraining the second and further respondents (“the
individual respondents”) from intimidating,
assaulting,
harassing, or in the applicant’s business at corner
Kruisfontein and Old Paarl Roads, Brackenfell (“the
applicant’s
premises”);
1.2
Interdicting
and restraining the individual respondents from in any way unlawfully
interfering with or damaging the property or
assets of the applicant
or any of its employees or any other persons involved in or connected
with the conduct of the applicant’s
business;
1.3
Interdicting
and restraining the individual respondents from damaging or
threatening to damage the applicant’s premises, blockading
the
points of access to and egress from the applicant’s premises,
interfering with the access or egress control to the applicant’s
premises, interfering with the proper working of the applicant’s
property or property under the applicant’s control;
interdicting and restraining the respondents from inciting,
prohibiting and restraining the respondents from inciting,
prohibiting
and restraining any person from tendering their services
to the applicant;
1.4
Directing
the first respondent to do all such things and take all such steps as
are necessary to ensure that the provisions of paragraphs
1.1 to 1.3
above are compiled with by the individual respondents;”
[3]
The
strike that resulted in this order has since been terminated.
Consequently the applicant is not persisting with a contempt order
against the union in respect of certain events that occurred
subsequent to the granting of the interim interdict. In the
stead the respondent now only seeks an order for contempt against the
union based upon certain statements made by a certain Ms
Irene
Thulani (who is the Provincial Secretary of the union) to the
striking workers on 4 November 2014. It is instructive to point
out
that Ms Thulani is not cited as a one of the respondents to this
contempt application.The applicant’s stance is that
this
conduct is in direct contravention of the terms of paragraph 1.1 of
the order in that the union was required, in terms of
paragraph 1.4,
of the order to take all steps necessary to ensure compliance with
the terms of paragraph 1.1 of the order. The
basis upon which the
applicant is therefore instituting contempt proceedings against the
union is because it is of the view that
the union has breached the
order by failing to do all such things and to take all such steps
that are necessary to ensure that
the orders contained in paragraphs
1.1 to1.3 are complied with. More in particular, it was submitted
that the conduct of the Ms
Thulani fell within the context of the
order contained in paragraph 1.1 of the order.
[4]
The
Court was referred to correspondence between the applicant’s
attorneys and the respondents’ attorneys. In a letter
dated 5
November 2014 in paragraph 4.13 reference is made to a women believed
to be a SATAWU official who addressed 150 SATAWU
members. The
respondent alleged in this letter that this individual stated to the
striking workers that if the applicant did not
acceded to SATAWU’s
demands, it would close down the business and burn down the
applicant’s buildings. The attorneys
on behalf of the
respondents initially disputed that this individual ever uttered
these words. However, it is clear from
the answering affidavit
that the union later conceded, after it had regard to the CCTV
footage taken of the address by officials
from the union, that she
did in fact utter words to this effect. It can therefore be
accepted that Ms Thulani is the one
who made certain comments
addressed to members of the union and to members of management and
that she did so in her capacity as
the Provincial Secretary of the
union.
[5]
According
to the transcript provided in the answering affidavit, Ms Thulani
said the following:
“
I’m
surprised why you’re standing so far away from us …
because we don’t even have guns. You’re the
ones who have
guns and dogs but you’re standing very far from us. Why are you
scared of us? Maybe we should be running from
you instead of you
running from us. Do we scare you? Do we look like monkeys aw we’re
sitting here?
We are here for a reason. We are only
asking for one thing. For you to treat these employees as human
beings. Like yourselves, for
you to do what you do for yourselves for
them. It’s not hard.
Do you want us to come and burn the
building first only then will you listen to us?”
[6]
The
applicant submitted that these words constituted a threat and that Ms
Thulani’s conduct constitute a breach of the court
order and
consequently should not go unpunished. On behalf of the union
it was submitted that this statement clearly was
not a threat and
that Ms Thulani merely asked a rhetorical question that was intended
to reveal the absurdity of the applicant’s
refusal to engage
with the striking workers in the face of what was an obviously
peaceful gathering. It was further submitted
that no
representative of the applicant was willing to accept the memorandum
from the striking workers and that whilst management
stood behind the
heavily armed police and security contingents. According to the
respondent, these remarks seen and placed
in context are simply an
expression of the frustration by the Provincial Secretary and that
these remarks were not made in the
context of an undertaking to
commit any act of violence towards the applicant or its property. It
was also submitted that
the Court order was unambiguous and that Ms
Thulani’s conduct did not fall within the ambit of the Court
order.
Contempt
proceedings
[7]
The
principles governing contempt proceedings are well known and need not
be restated in detail. Suffice to point out that
it is trite
that in order to succeed with an application for contempt the
applicant must prove that the respondent is in contempt
of an order
of a court. This entails proof of the order, due service of the
order on the relevant party and that the respondent
acted in
deliberate wilful disobedience of the order of this Court. Proof
must be beyond reasonable doubt. These principles
were set out
in the well-know case of
Fakie
NO v CCII Systems (Pty) Ltd
:
[1]
“
[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)
declarator
and other appropriate remedies remain available to a civil applicant
on proof on a balance of probabilities.
Application to
facts: did CCII show beyond reasonable doubt that the
Auditor-General's non-compliance was wilful and
mala fide
?”
[8]
It is also accepted that a distinction should be drawn between the
union’s conduct and whether that is in breach of the
court
order and the breach of the court order perpetrated by the individual
members on strike.[1] The importance of this
distinction was
highlighted in
Food
and Allied Workers Union v In2Food:
[2]
“
Was
a Breach proven?
[7] Proof of contempt of a court order
requires, in particular, proof of the order, of due service on the
relevant party,
and of deliberate wilful disobedience.
Moreover, there must be proof beyond reasonable doubt. (
Fakie NO v
CCII Systems (Pty) Ltd
[2006] ZASCA 52
;
2006 (4) SA 326
(SCA) at
[42]
).
[8] The true question for decision is
whether the evidence adduced about the appellant union’s
conduct contributes to proving
that the appellant committed a breach
of the order, as distinct from a breach by the individual union
members on strike. An examination
of the order reveals that only
orders 1.1 and 1.2 apply to the appellant. In essence the appellant,
no less than the strikers individually,
were forbidden to “continue”
the strike. More specifically, they were forbidden from blocking
access to the premises
and inhibiting people entering and leaving.
The question is therefore whether evidence exists of the appellant
doing these things.
[9]
The
principle upon which a juristic entity is held to perform acts is by
acting through its officials, agents or members, acting
within the
scope of a mandate from the juristic entity to persist in given
activity.
[3]
What is required is proof that the strike and the blockade occurred
in pursuance of a decision by the appellant or of an agreement
with
its members to strike. In the case of a protected strike, the
observance of the formalities by a trade union in terms of section
64
of the LRA would establish the fact of the union’s complicity.
In the case of an unprotected strike the establishment
of the fact of
union complicity is likely to be by inference.”
[9]
The important point emphasised in this judgment is that, before the
union can be held in contempt, there must be evidence of
a breach by
the union “
in
its own right
”.
[4]
In the
In2food
matter the Court held that there was no evidence to show a breach by
the union in its own right. In the present matter the facts
are
distinguishable in that it was the Provincial Secretary – who
is an office bearer of the union – who made these
remarks. At
best for the applicant it can be found that the union may be held
liable for remarks uttered by an office bearer
provided that it is
found that those words were uttered in breach of a Court order.
[10]
This brings me to the next question: Did the Provincial Secretary by
uttering these words act in breach of the Court order?.
On
behalf of the respondents it was submitted that the Provincial
Secretary had not breached this order simply because the
order did
not provide for this kind of behaviour and consequently submitted
that the order is not formulated in such a way that
it is clear and
unambiguous.
[11]
It is accepted that an order that is formulated in such a way that
compliance is left to the discretion of the person bound
by the order
is not capable of enforcement.
[5]
It is therefore accepted that for an order to be enforceable
the wording of the Court order must be clear and unambiguous.
[6]
In
In2food
[7]
the Labour Appeal Court also made it clear that an order should be
clear so that there is no reasonable doubt as to what exactly
is to
be done or refrained from:
“
[13]
The second difficulty from which these submissions suffer is the
dependence on a generous interpretation of the term “continue”
in the order directing a cessation of the strike, to imply that the
appellant
,
a fortiori,
had to take “‘positive steps” to bring the strike
to an end. What might such positive steps be that are to be
implied
by stating that the appellant was not to continue with the strike?
Bearing in mind the quasi-criminal sanction for a breach,
it is to be
expected from the text of an order that the party interdicted is left
in no reasonable doubt as to what exactly is
to be done or refrained
from. The formulation of the order against the appellant is vague,
having not been insightfully framed
with logistics of proof of breach
and of effective execution in mind. An interdict order against a
union should prudently state
plainly what action is mandatory, and
not elide the union’s obligations with that of its members. The
terminology of, “‘continuing”
the strike, whatever
broad meaning might be attributed to that term, is, in my view, too
vague to be useful in a context where
quasi-criminal sanctions are at
issue.
[14] In other cases where contempt
proceedings have been prosecuted that degree of clarity in the orders
has been the point of departure
for the enquiries. The point is
illustrated in
Security Services Employers’ Organisation and
Others v SATAWU
(2007) 28 ILJ 1134 (LC)…”
[12]
I have perused the Court order and I am not persuaded that the order
contained in paragraph 1.1 is vague and unambiguous to
the extent
that it excludes utterances that can be construed as intimidating
persons involved in or connected with the applicant’s
business.
Certainly if a union official utters words which may incite the
members of the union to burn down a factory or utter
words that are
aimed at intimidating management, such act will be prohibited by
paragraphs 1.1 of the Court order.
[13]
Having accepted that the Court order is not vague or ambiguous it
still needs to be considered whether what the Provincial
Secretary
said amounts to intimidation or a threat to damage the applicant’s
premises as contemplated in paragraph 1.1. If
the answer to
this question is in the affirmative the union can, in my view, be
held liable by virtue of the provisions of paragraph
1.4 of the order
which directs “
the union to do all such things and take all
such steps as are necessary to ensure that the provisions of
paragraphs 1.1 –
1.3 above are complied with by the individual
respondents
.”
[14]
I have had an opportunity to carefully scrutinize what the Provincial
Secretary said and more particularly the context within
which these
words were uttered. I am persuaded by the submission that her
statements are not capable of being construed as
a threat when it is
placed within its immediate context. The demonstration appears
to have been calm and peaceful. Moreover,
the Provincial Secretary
has explained her state of mind at the time of making the statement.
She explained that she was
frustrated because the applicant
refused to engage with the striking workers in the face of what was
an obviously peaceful gathering.
She was also frustrated by the
fact that management was intent on not accepting the memorandum and
that management were intent
on remaining behind the heavily armed
police and security contingent. I am not persuaded beyond a
reasonable doubt that,
in light of the Provincial Secretary’s
explanation of her state of mind at the time and viewed in its proper
context, that
it can be concluded that she was wilful or
mala
fide
. The application is therefore dismissed. I can find no
reason why costs should not follow the result.
Order
[15]
In the event the following order is made:
15.1
The application for contempt against the second respondent is
dismissed.
15.2
The Applicant to pay the costs of this application.
AC
BASSON
Judge
of the Labour Court
Appearances:
For
the Applicant : Advocate F A Boda
Instructed
by: Norton Rose Fulbright South Africa Inc.
For
the Respondent: Advocate LM Spiller
Instructed
by : Cheadle Thompson & Haysom Inc.
[1]
2006 (4) SA 326
(SCA).
[2]
JA61/2014
at paragraph [8] of the judgment.
[3]
My emphasis.
[4]
Ibid
at paragraph [9].
[5]
See
in general:
[zRPz]
Jayiya
v Member of the Executive Council for Welfare, Eastern Cape, and
Another
2004
(2) SA 611
(SCA) at paragraph 19.
[6]
See in this also
regard
The
Body Corporate of The Tuzla Mews Scheme v Yang
.2001
JDR 0166 (W).
[7]
Supra.