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[2015] ZALCJHB 349
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Swissport (SA) (Pty) Ltd v National Transport Movement and Another (J1940-15) [2015] ZALCJHB 349 (12 October 2015)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case
no: J1940-15
DATE:
12 OCTOBER 2015
Not
Reportable
In
the matter between:
SWISSPORT
(SA) PTY
LTD
...................................................................................................
Applicant
And
NATIONAL
TRANSPORT
MOVEMENT
.................................................................
First
Respondent
EMPLOYEES
LOISTED IN ANNEXURE
“A”
....................................................
Second
Respondent
Heard:
10 October 2015
Delivered:
12 October 20015
Summary:
Urgent application to interdict the strike pending
the outcome of appeal.
JUDGMENT
MOLAHLEHI,
J
Introduction
[1]
This is an application in terms of which the applicant seeks an
interim order in the following terms:
‘
4.1
Declaring that the action and/or the proposed strike action
contemplated for 10 October 2015 constitute an unprotected strike
action in terms of
section 68
of the
Labour Relations Act 66 of 1995
as amended;
4.2
Interdicting the Respondents from participating in any such unlawful
and unprotected strike action;
4.3
Interdicting and restraining the Respondents from committing any act
of violence, intimidation and threat any and all employees
of the
Applicant in any way whatsoever including but not limited to
intimidating them to participate and join in.
5.
Ordering the provisions of paragraph 4.1. 24.3. above operate as an
interim order pending the outcome of the application for
leave to
appeal…’
The history of
litigation
[2]
This application was launched by the applicant on 9 October 2015 and
enrolled for hearing on Saturday, 10 October 2015. On the
same day,
the applicant launched an application for leave to appeal against a
judgment made by Rabkin-Naicker, J discharging a
rule nisi
interdicting and restraining the respondents from engaging in a
strike action. The order in that judgment reads as follows:
‘
i
The
rule nisi
is discharged.
ii
The parties are ordered to jointly approach the CCMA not later than
Monday, 12 October 2015 in order to obtain assistance for
verification process under case number GAEK 6217 – 15.’
[3]
The
rule nisi
was issued by Whitcher, J on 23 September 2015
and was returnable on 4 December 2015. The applicant anticipated the
return day
and, accordingly, the matter was heard on 29 September
2015.
[4]
The respondent had prior to commencing with
the strike action, on the 23 September 2015, referred the dispute
concerning an alleged
“refusal to bargain” to the CCMA
for conciliation. The conciliation having failed, the matter was
referred to arbitration.
The outcome of that process was that the
Commissioner issued an award reads as follows:
‘
[14]
The parties to engage in a joint verification exercise, which is to
commence within 14 days hereof.
[15]
In view of the fact that it is common cause that NTM have more
membership than any other Union currently at the Respondent’s
workplace, the Respondent should not reduce to bargain with the
Applicant. This should be the case even prior to the finalisation
of
the verification exercise, and irrespective of whether or not it
results in a collective agreement.’
[5]
On the same day, that the judgment
discharging the
rule nisi
was made, 9 October 2015, the applicant addressed the letter to the
respondents which reads as follows:
‘
1.
We refer to the above matter.
2.
We confirm that our client’s application for leave to appeal
has been served and filed and accordingly, the order handed
down by
Honourable Rabkin-Naiker J has been suspended.
3.
In light of the aforesaid- any strike action, pending the outcome of
the appeal will be unlawful until such time as the appeal
has been
finalised.
4.
We are instructed that our client has been informed that you intend
to strike tomorrow and that such strike will be used to intimidate
non-participating employees.
5.
In light of the above, please provide us with a written undertaking
that you will not partake in any strike activity and/or industrial
action until such time as a find has been made in respect of the
appeal proceedings.
6.
Should we not receive the above-mentioned written undertaking by
22:00 today, we hold instructions to launch the appropriate
legal
proceedings in the circumstances including but not limited to
interdictory relief.
7.
In the interim, all our clients rights are and remain strictly
reserved in full.
Yours
faithfully”
[6]
The first respondent replied to the above
letter by stating the following:
‘
The
leadership of NTM has noted the contents of your correspondence dated
9
th
October 2015.
We however reject
with contempt your assertion that a any NTM’s strike pending
the outcome of appeal will be unlawful.
We place it on
record that the Labour Court Order had confirmed content that NTM’s
strike is protected.
We dispute the fact
that we have to serve a second notice of our intention to embark on a
protected strike.
…
We place it on
record that the CCMA had contacted NTM for the meeting, which will
take place on Monday 12
th
October 2015 at 10h 00 this
meeting takes place at the CCMA Office….’
The applicant’s
case.
[7]
The applicant’s case is based mainly
on the fact that the respondents have, pending the outcome of the
appeal process, lost
their right to strike which had been confirmed
by the judgment of Rabkin-Naiker, J. The applicant is, in this
regard, correct.
It is a trite principle of our law that leave to
appeal suspends any judgment or order made by the Court. This
principle is, however,
not absolute in the sense that the party in
whose favour judgment or order was made is entitled to approach the
Court for an order
directing that the judgment be given effect
despite the pending appeal.
[8]
The issue that needs consideration concerns
the urgency of the matter. In this respect, the applicant relies both
on the respondents’
letter and what is stated in the founding
affidavit. The relevant portion of the founding affidavit in relation
to seeking to substantiate
urgency of the matter reads as follows:
‘
6.3
It came to my attention via meeting with representatives of SAA (to
whom NTM also enjoys membership); that despite the appeal
proceedings
having been launched that the First Respondent intends to proceed,
without issuing a new strike notice, and without
honouring the appeal
process, to proceed with a strike tomorrow morning on Saturday, 10
October 2015.
6.4
I instructed representatives of the Applicant to “keep their
ear to the ground” tp (sic) confirmed the reliability
of the
information.
6.5
I was advised by Masala Nemakonde that he heard members of NTM after
the granting of the Honourable Judge Rabikin- Naiker; saying
that “we
will teach them a lesson tomorrow”, and that “they should
be scared”. He also heard them laughing
and made references to
“Marikana last time.”
6.6
…
6.7
I take these statements in the most serious light.’
[9]
The applicant also relies on what it
alleges happened on the 22 September 2015 to support its averment
that the matter is urgent.
It is stated, in that respect, that:
‘
6.8
The history of NTM (as with the strike that occurred on 22 September
2015 – whereby knopkirries were used to threaten
and intimidate
other employees, and the property was damaged and trespassing of
restricted areas occurred) reflect and maintain
and intimidate the
attitude.’
[10]
It is apparent that the above is also used
to support the averments that the 48-hours’ notice prescribed
by the LRA should
be abridged by the Court.
The law
[11]
It is trite that in an urgent application
the party that applies for an urgent relief must in terms of Rule 8
of the Rules of the
Court set out the reasons for the urgency and why
urgent relief is necessary. In the case where the application is
brought on period
shorter than 48 hours as provided for in section 68
(2) of the LRA, that party must provide reasons why a shorter period
should
be permitted.
[12]
In
National
Union of Metal Workers of South Africa (NUMSA) obo its Members v
Murray Roberts
,
[1]
Whitcher,
AJ, as she then was observed that:
‘
[11]
Rule 8 of the Labour Court rules also provides that if a party brings
an urgent application, the affidavit in support of the
application
must contain reasons why urgent relief is necessary and if the
application is brought on less than 48 hours notice,
the reasons why
a shorter period of notice should be permitted.
[12]
The rules thus strike a balance between the recognition that in some
instances the application of the prescribed time limits
or any time
limits at all might occasion injustice and the right of the
respondent to a reasonable opportunity to be heard before
any adverse
decision is made against it.
[13]
The fact that a matter may require very urgent attention by the court
does not relieve a party from the obligation to give
respondents
48-hours notice or provide proper reasons in the founding affidavit
why a period of notice shorter than 48 hours should
be permitted. The
applicant should also in its founding affidavit set out a factual
basis which shows that respondents have been
given a reasonable
opportunity to be heard on the application. Rule 8 makes this
perfectly clear. It is also apparent from the
conjunction “and”
which joins subsections (a), (b) and (c) of section 68 of the LRA.’
[13]
In
Tantsi
v Member of the Executive Council of Health-Eastern Cape Province and
Others
,
[2]
Lallie J held that:
‘
[7]
The necessity to prove urgency in urgent application cannot be
overlooked. In
Mimmo’s Franchising CC and Others v Spiro and
Others
(footnote omitted) the Labour Appeal Court made it clear
that the provisions of Rule 8 which require the applicant to prove
urgency,
apply to all urgent applications, irrespective of whether
the relief claimed is of an interim of final relief.’
Evaluation
[14]
It is common cause that the notice in these proceedings was
served on the respondent in less than 48 hours. In fact, according to
the submission made by Mr Mphahlele for the respondents, they were
given less than five-hours notice. According to him, they were
served
with the papers on Saturday, 10 October 2015 at 10h00, the matter set
down for hearing at 12:00 on the same day.
[15]
At paragraph 3.5 of the founding affidavit, the applicant
states that the Court should dispense with the requirements of the
48-hours
notice as provided for in section 68 (2) of the LRA. The
affidavit then deals, in about twenty pages with the history of the
matter
and matters canvased in in the judgment of
Rabkin-Naiker, J. Most of the points raised in the affidavit are
irrelevant
to the consideration of this matter. For instance
paragraph 5.67 of the founding affidavit makes reference to a letter
addressed
to the Honourable Judge regarding
locus standi
of Mr
Maphahlele. As pointed out to Counsel, I did not understand why the
applicant was resorting to litigation through correspondence
with a
Judge. The proper approach, as I see it, was for the applicant to
have raised the issue of
locus standi
in the pleadings and
substantiated the same in the founding affidavit. Applicant did not,
however, pursue this point in the present
matter.
[16]
Turning back to the issue of the 48-hours’ notice, the
applicant has not made out a case for the Court to indulge it and
condone
the non-compliance with the time-frame as required by the
LRA. It is apparent from the reading of the founding affidavit that
the
reason for non-compliance with the 48-hours’ notice was due
to the information which Mr Subrugen received from Mr Nemakonde,
the
HR manager.
[17]
In my view, the allegations made by Mr Nemakonde are broad, general
and unsubstantiated. The allegations lack in details and
substance in
that, amongst others, those who are alleged to have made the threats
have not been identified, neither is there evidence
that it was
stated that the strike would commence the following day. There is
also no evidence that the alleged threats were made
for and on behalf
of the first respondent.
[18]
In addition to the above, the applicant has failed to satisfy the
requirements of Rule 8 of the Rules of the Court. In this
respect,
there is no satisfactory explanation as to why it is alleged that the
matter is urgent and why the relief is sought on
an urgent basis.
[19]
In contending that it was faced with an imminent strike action, the
following day after the judgment was made, the applicant
relies on a
letter from the first respondent. There is nothing in the letter
stating that the first respondent intended commencing
with the strike
action on the following day. All what is contained in the respondents
letter is a legal contention that their right
to strike has been
confirmed by the judgment. There is nothing expressly stating that
the strike would commence the following day.
It should be noted that
the rule suspending the coming into operation of the judgment pending
leave to appeal is not absolute.
The respondents are entitled to
approach the Court and seek an order to have the judgment implemented
despite the pending appeal.
[20]
I accordingly find that the applicant has failed to provide a
satisfactory explanation as to why the application was served
on a
less the 48 hours’ notice. The applicant has also found to make
failed to make out a case for urgency. As concerning
the issue of
costs, both parties agreed that cost should follow the results. In
the interest of building and improving on their
fragile relationship,
it seems to me that it would be inappropriate in the circumstances to
allow cost to follow the results.
Order
[21]
In the premises, the applicant’s application is struck of the
roll with no order as to costs.
Molahlehi,
J
Judge
of the Labour Court of South Africa
Appearances
:
For
the Applicant: Adv H Van Beek
Instructed
by: C De Villiers Attorneys
For
the Respondent: Union official
[1]
(2012) 33
ILJ
2642
(LC) at paras 11-13
.
[2]
(P 02/14) [2014] ZALCPE 1 (31 January 2014).