About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2015
>>
[2015] ZALCJHB 302
|
|
Barberton Mines (Pty) Ltd v Association of Mineworkers and Construction Union and Others (J1780/14) [2015] ZALCJHB 302 (25 August 2015)
IN
THE LABOUR COURT OF SOUTH AFRICA JOHANNESBURG
JUDGMENT
Not Reportable
Case no: J1780/14
In the matter between:
BARBERTON MINES (PTY)
LTD
Applicant
and
ASSOCIATION OF
MINEWORKERS AND CONSTRUCTION UNION First
Respondent
THE PERSONS LISTED IN
ANNEXURE “A”
Second to Further Respondents
Heard:
14 November 2014
Delivered:
25 August 2015
JUDGMENT
Nkutha-Nkontwana AJ
Introduction
[1]
In
this application the Applicant seeks confirmation of the rule
nisi
issued
by this court on the 7
th
of August 2014 as amended in the draft order. In terms of the
draft order issued on the 7
th
of August 2014, the Respondents were called to show cause why the
following order should not be granted in terms of Section 158
or
Section 68(1)(a) of the Labour Relations Act, 66 of 1995 (“
the
LRA”
)
in the following terms:
“
2.1
Declaring that the First Respondent’s conduct in calling for
industrial action in
support of its demand to be granted statutory
organisational rights to constitute unlawful conduct giving its
failure to have demonstrated
that it is sufficiently representative
as required in terms of the collective agreement entered into between
the Applicant and
the National Union of Mineworkers (NUM) established
threshold for the granting of organisational rights to any trade
union;
2.2
Declaring any strike action by the Second to Further Respondents in
support of the
First Respondent’s demand to be granted
organisational rights as set out in paragraph 2.1 above as
constituting unlawful
industrial action with the meaning of Section
65(3)(a)(i) of the Labour Relations Act, 66 of 1995 (LRA);
2.3
Interdicting and restraining the First Respondent from calling for,
encouraging or
supporting any industrial action by and of the Second
to the Further Respondents for the granting of the statutory
organisational
rights by Applicant to, the First Respondent;
2.4
Interdicting and restraining any of the Second to Further Respondents
from participating
in industrial action of support of the First
Respondent’s demand and that the Applicant grants the First
Respondent statutory
organisational rights;
2.5
Ordering the First Respondent to intervene and to take all reasonable
steps to ensure
that their members who participate in unprotected
industrial action in support of the First Respondent’s demand
and that
the Applicant be granted statutory organisational rights
desists from any further participation in such industrial action;
2.6
Ordering the rule nisi due issue remain enforce until the return date
or the return
date being anticipated by the First Respondent;”
[2]
Subsequent
to the granting of the above order, the Applicant supplemented its
papers and is now requesting confirmation of the rule
subject to the
amendments which are contained in the draft order. The
Respondents consent to the confirmation of the draft
orders 1.1 and
1.2 which are exactly the same as orders 1.1 and 1.2 of the rule.
However, they are opposing the confirmation
of the draft orders 1.3,
1.4 and 1.5 which seek to amend the original orders as follows:
“
1.3
INTERDICTING and RESTRAINING the 1
st
Respondent from calling for, encouraging or supporting any industrial
action by and of at the 2
nd
to Further Respondents for the granting of statutory organisational
right to; the 1
st
Respondent by the Applicant until the 1
st
Respondent has obtained the threshold for the granting of such
organisational rights in accordance with collective agreement
concluded
between the Applicant and NUM;
1.4
INTERDICTING and RESTRAINING any of the 2
nd
Respondent to
Further Respondents from participating in industrial action of
support of the 1
st
Respondent’s demand that the
Applicant grants the 1
st
Respondent statutory
organisational rights until it has obtained the threshold for the
granting of such organisational rights in
accordance with the
collective agreement concluded between Applicant and NUM;
1.5
DIRECTING that the 1
st
Respondent and/or the 2
nd
to Further Respondents in not exercise their right to refer the
dispute concerning 1
st
Respondent’s entitlement to organisational rights under
Section
12
to
15
of the
Labour Relations Act to
arbitration in terms of
Section 21
of the
Labour Relations Act for
a period of 12 months from
the 4
th
of August 2014;”
Factual background
[3]
The
genesis of this matter is the referral of a dispute in terms of
Section 21
of the LRA to the CCMA under case number MP259/14 by the
First Respondent (“
the
AMCU”
)
wherein it sought to obtain organisational rights.
[4]
The
dispute was unsuccessfully conciliated by the CCMA and a certificate
of non-resolution was issued on 4 August 2014. I
need to
backtrack and state that there were several engagements between the
parties leading to the CCMA conciliation regarding
AMCU’s
eligibility to organisational rights. The Applicant was
adamant that AMCU was not eligible solely because
it did not meet the
threshold set in the collective agreement entered into between itself
and the National Union of Mineworkers
(“the
NUM”
).
The threshold is as follows:
“
5.
THRESHOLD
5.1
It is agreed that the threshold established by this agreement in
respect of those organisational
rights regulated by
Section 12
,
13
and
15
of the Act is 45% (forty five per centum) plus 1 [one] of the
employees employed by the company in the bargaining unit.
5.2
It is further agreed that the threshold established by this agreement
in respect of the
organisational rights regulated by Section 14 and
16 of the Act is 50% (fifty per centum) plus 1 [one] of the employees
employed
by the company in the bargaining unit.”
[5]
After
being served with the notice of intention to embark on a strike
action by the Respondents, the Applicant launched the urgent
application and the interim order was granted on 7 August 2014 as
alluded to above.
[6]
The
conduct of the parties subsequent to the granting of the rule is
dealt with in the Applicant’s supplementary affidavit
and the
Respondents’ answering affidavit. I have taken notice of the
exchange of numerous letters between the parties during
the period of
August to November 2014. The most pertinent one though is the
Respondents’ letter dated 5 November 2014, through
their
attorneys of record, addressed to the Applicant’s attorneys of
record and, for completeness sake, its contents are
as follows:
“
Dear Sirs
BARBERTON MINES (PTY) LTD / AMCU
& OTHERS – LABOUR COURT CASE NUMBER J1780/14
1.
We refer to the above matter.
2.
We refer to the writer’s telephone discussion with Mr St Elmo
Wilken today.
3.
We confirm as follows:
3.1
our client hereby withdraws the dispute referred to the CCMA under
case number
MP4259-14. Our client’s notice of withdrawal
in this regard is attached; and
3.2
our client hereby withdraws its strike notice issued on 4 August 2014
in respect
of the above-mentioned CCMA dispute.
4.
In the light of the above developments, there is no on-going threat
of strike action in respect of above dispute; there is no reasonable
prospect whatsoever of strike action resuming; and the dispute
has
become academic.
5.
In the circumstances, please confirm whether your client would be
amenable to having paragraphs 2.3, 2.4, 2.5 of the interim order
granted under Labour Court case number J1780/14 discharged on
the
return date of 14 November 2014.
6.
Furthermore paragraphs 2.3, 2.4 and 2.5 of the interim order
constitute
wide, indefinite and general injunctions which could
preclude our client and its members from engaging in a lawful strike
in future.
This would obviously not be an acceptable situation.
7.
We kindly request that you indicate your client’s confirmation
of the above by no later than business day on Thursday, 6 November
2014.
8.
In the event no confirmation of the above is received, or in the
event that you indicate that your client intends to confirm the
abovementioned paragraphs of the interim order, then it is our
instruction to appear on the return date to argue that in the
circumstances, the interim interdict should be discharged insofar
as
these paragraphs are concerned.
9.
Please note that we are advised by our client that from the time the
interim order was granted to date our client has undertaken a
recruitment exercise resulting in a significant increase in AMCU
membership at your client. Our client is in the process of
processing and calculating its increased membership numbers, and
will
revert to your client in this regard once it has finalised the
process. Our client reserves the right should it be necessary,
to refer a fresh dispute to the CCMA in terms of Section 21 of the
LRA.
10.
We trust that the above is in order and await your response herein.”
[7]
The
Applicant responded to the above letter as follows:
“
We refer
to your letter dated 5 November 2014.
We have taken instructions from our
client regarding your proposal that our client discharges the rule on
14 November 2014.
Our client is not prepared to
discharge the rule especially since it is now apparent from your
letter that the issue of your client
being granted organisational
rights is an ongoing matter and given the history of your client’s
refusing to participate in
any independent verification or
verification under the auspices of the CCMA of its membership, there
remains an ongoing threat
of your client engaging in an industrial
action.
We attach a draft order setting out
terms of confirmation of the rule we will be seeking on 14 November.
We invite you to
make proposal in respect of the draft order with a
view to ascertain whether it is still possible to obtain an Order by
consent.
We however reserve our client’s rights to
proceed to have the rule confirmed in terms of the proposed draft
order or as may
be amended by the Court when the matter is argued if
no agreement can be reached concerning the terms of this order.”
[8]
In
a last bid to have the rule discharged by consent, the Respondents
made the following undertakings:
8.1
That they would not refer a further dispute to the CCMA in terms of
Section 21 of the LRA until
such time the First Respondent is in a
position to demonstrate that it has obtained the requisite threshold
in terms of the collective
agreement concluded between the Applicant
and NUM; and
8.2
That they would not seek to embark on a strike action until such time
the First Respondent is
in a position to demonstrate that it has
obtained the requisite threshold.
[9]
The
Applicant maintained its stance. Therefore, the main issue for
determination is whether the matter has since become moot.
Legal principles
[10]
The
principles relating to mootness of a matter were solidly established
in
National
Coalition for Gay and Lesbian Equality and Others v Minister of Home
Affairs and Others
[1]
where the Constitutional Court stated that:
“
A case is
moot and therefore not justifiable, if no longer presents an existing
or live controversy which should exist if a Court
is to avoid giving
advisory opinions or abstract propositions of law.”
[11]
Whilst
in
NEASA
v MEIBC & Others,
[2]
the Labour Appeal Court, dealing with intervening events that have an
effect on the life of the issues before the court,
stated
that:
“…
the
mootness of this appeal is plain. The interdictory relief
sought has been overtaken by events. The action which
it was
formulated to prevent has occurred. The relief which was sought
is now perfectly academic.”
[12]
Nonetheless,
it is trite that mootness is not an absolute bar to deciding an
issue. The next question to be asked is whether
the interest of
justice requires the matter to be decided and whether the order will
have any practical effect on either of the
parties or others.
[3]
[13]
The
Respondents referred me to the case of
Ekurhuleni
Metropolitan Municipality v SAMWU & Others
[4]
where the court discharged the rule on the basis that there was no
reasonable possibility of the occurrence of the conduct interdicted
by the interim order. In that regard, the court said the
following:
“
The
applicant does not seek any declaratory relief, but rather seeks an
interdict which amounts to a general injunction to workers
not to
engage in unlawful misconduct, which is not linked to any concurrent
industrial action. Unlike typical injunctions of this
nature, it is
not time bound by the duration of the industrial action. In this case
the context in which the actions occurred was
a protected national
strike. However the form of relief sought is of indefinite duration
and in principle would be equally enforceable
in industrial action
occurring two years hence, without any need to give notice of the
applicant's intention to obtain a court
order on that occasion.
But if the rule is confirmed in
this instance it is not merely reaffirming whether or not the
applicant was indeed entitled to their
relief at the time when it was
a live issue: it also will have the prospective effect of imposing a
court order barring such conduct
on all future occasions when it
cannot be said on any reasonable basis that such possible future
events were live issues at that
time the matter was argued on the
return day. In the case just cited, the effect of the court order
dismissing the application
to set aside the magistrate decision had
no prospective effect, whatever the significance of its declaratory
importance may have
been.”
[14]
It
was argued, however, on behalf of the Applicant that the matter is
ongoing simply because the Respondents persist with being
granted
organisational rights despite having refused to participate in any
independent verification or verification under the auspices
of the
CCMA of its membership. In that regard, paragraph 25.2 and 25.3
of the replying affidavit the Applicant states the
following:
“
25.2
… the withdrawal of the strike notice issued on the 4
th
of August is of no moment since a Court order had been obtained
declaring the strike called for an unprotected strike.
Furthermore
the withdrawal of the CCMA dispute is also of no
consequence given that Section 65(2)(b) of the Labour Relations Act,
66 of 1995
(“LRA”) applies which renders the dispute as
not capable of being pursued and exhausted for a period of twelve
(12)
months from the date of issuing of the strike notice.
25.3
I respectfully refer the Honourable Court to what I have stated in my
supplementary affidavit
under the heading ongoing dispute in
paragraphs 14 to 31 and verily believe that there is a threat of
ongoing strike action.”
[15]
It
is true that
it
is not the duty of the court to answer moot questions and, as such
when pending proceedings, an event occurs which renders the
relief
sought academic; the court will dismiss the application. However, in
this case a question that arises is whether a mere
voluntary
cessation of allegedly illegal conduct would moot a case.
[16]
In
my view
the
Respondents’
position
implies no concession that their conduct not in line with to their
undertakings would be unlawful. Therefore, it is most
conceivable
that if the rule, as the amended by the draft order, were to be
discharged, there would be no legally binding injunction
preventing
the Respondents from immediately pursuing a similar dispute and
embarking on strike action on similar grounds. In fact,
the
Respondents are on record having expressed their intention to exactly
do that without any expressed commitment to a particular
verification
process; hence the Applicant is adamant that the rule be confirmed as
amended.
[17]
I
now deal with the effect of the Respondents’ withdrawal of both
the dispute referred to the CCMA under case number MP4259-14
and the
strike notice issued on 4 August 2014 that ensued therefrom. In
Ncaphayi
v Commission for Conciliation, Mediation and Arbitration and
Others
[5]
the
court, dealing with
the
effect of a withdrawal of a referral to conciliation, said the
following:
“…
The
LRA does not deal with the withdrawal of matters referred to the CCMA
and neither do the rules of the CCMA. Rule 13 of the Labour
Court
merely deals with the procedure to be followed if a party wishes to
withdraw proceedings. It is instructive to note how the
High Court
has considered the effect of a withdrawal of a matter.
It
has been held that the withdrawal of a matter by a party is akin to
an order of absolution from the instance. Ordinarily, an
order of
absolution from the instance does not prevent a party from
reinstituting proceedings and the defendant absolved in the
first
proceedings will not be able to raise the exceptio rei judicatae if
sued again on the same cause of action
.
If the
withdrawal of a matter in the High Court at a stage when it is ripe
for hearing does not necessarily prevent the institution
of fresh
proceedings, it would be anomalous if the withdrawal of a matter at
the conciliation stage of dispute resolution under
the LRA –
when no decision on the merits of the dispute is even possible -
precluded a party from making a fresh referral.
Obviously,
if the withdrawal under consideration is part and parcel of a final
settlement of the dispute the situation would be
quite different.
However, in this case, the withdrawal was at the applicant’s
own instance and not an intrinsic part of a
settlement agreement…”
[Emphasis
added]
[18]
I
am in agreement with the view expressed in the above case that
withdrawal
of a matter at the conciliation stage of dispute does not precluded a
party from making a fresh referral of a dispute.
In this instance, it
stands to reason, therefore, that in the absence of a legally
enforceable injunction, the Applicant would
perpetually be at the
mercy of the Respondents, who could bail out from their assurances
alluded to above anytime and with impunity.
[19]
Accordingly,
it is my view that, until the Respondents are in a position to prove
that they have met the threshold for representatively,
consequent to
a verification exercise,
this
matter is far from moot. Clearly, the Applicant successfully
established that a reasonable apprehension of injury exist as
a
result of the Respondents’ conduct on the basis similar to
those that were dealt with in
Libanon
Gold Mining Co Ltd & others v National Union of Mine Workers &
another
[6]
discussed
and distinguished in
the
case of
Ekurhuleni
referred
to above ardently relied upon by the Respondents.
Ekurhuleni
is, however, distinguishable from this case since the Applicant in
that case failed to prove that the ‘possible future events
were
live issues at that time the matter was argued on the return day’.
[7]
[20]
Furthermore,
I do not agree with the Respondents’ submission that if draft
orders 1.3 and 1.4 were to be confirmed, they would
not be able to
seek organisational rights in future even if they did follow correct
procedures in terms of Section 21 of the LRA
and again seek to go on
a strike simply because the Applicant will institute contempt
proceedings against them. On the contrary,
the amended draft order
clearly deals with their concern by limiting the interdict to a
strike action in support of a demand for
organisational rights only
if the Respondents are not in a position to prove that they do comply
with the threshold provided for
in the collective agreement.
[21]
I
now deal with order 1.5 of the draft order which is clearly different
from order 2.5 of the rule. The Applicant now seeks
to
specifically interdict the Respondents from referring any dispute
concerning the First Respondent’s entitlement to Sections
12 to
15 organisational rights to arbitration in accordance with Section 21
of the LRA for a period of 12 months. In my view,
this issue
has been rendered academic by the Respondents’ withdrawal of
the CCMA referral that led to the issuing of a certificate.
As stated
above, a fresh dispute would have to be referred to the CCMA and,
typically, an arbitration hearing would be preceded
by a conciliation
hearing.
[22]
In
any event, the Applicant
diverged
from the original orders in the rule and chose to persist only with
orders as contained in the draft order. Effectively,
it has abandoned
order
2.5 of the rule.
Consequently,
order
1.5 and/or as amended by 2.5 of the draft order must be discharged.
Costs
[23]
On
the issue of costs, in the light of the persisting relationship
between the parties I am not inclined to grant cost.
Order
[24]
In
the circumstances, I make the following order:
1.
The
rule
nisi
issued
on 7 August 2014 is confirmed in accordance with the draft order
attached hereto and marked “X” as amended to
exclude
orders1.5 and 1.6 thereof.
2.
There
is no order as to costs.
__________________
Nkutha-Nkontwana AJ
Judge
of the Labour Court of South Africa
APPEARANCES:
FOR THE APPLICANT:
Adv. C
E Watt-Pringle SC
Instructed
by:
Mervyn Taback Inc
FOR THE
RESPONDENTS:
Adv. S Collet
Instructed
by:
Larry Dave Incorporated
[1]
2000 (1) BCLR 39 (CC).
[2]
JA02/25/2015 ZA LAC 11 at para 7.
[3]
Sebola & Others v Standard Bank of South
Africa Ltd & Another
2012 (5) SA
142
(CC);
2012 (8) BCLR 785
(CC) at para 32.
[4]
2011 (5) BLLR 516
(LC) paras 20 and 27.
[5]
[2010] ZALC 118
; (2011) 32 ILJ 402 (LC) at
paras 27 and 28
[6]
(1985) 6 ILJ 180 (W).
[7]
Above n 5.