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[2015] ZALCJHB 359
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Verulam Sawmills (Pty) Ltd v Association of Mineworkers and Construction Union (AMCU) and Others (J1580/15) [2015] ZALCJHB 359; [2015] 12 BLLR 1266 (LC); (2016) 37 ILJ 246 (LC) (20 October 2015)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case no: J1580/15
In
the matter between:
VERULAM
SAWMILLS (PTY) LTD
Applicant
and
ASSOCIATION OF
MINEWORKERS AND
CONSTRUCTION UNION
(‘AMCU’)
First Respondent
166
EMPLOYEES OF APPLICANT AND MEMBERS OF FIRST RESPONDENT
Second
and Further Respondents
Heard:
7
August 2015
Delivered:
20
October 2015
Summary:
Punitive
costs - union members contravening picketing rules and union failing
to take all reasonable steps to ensure compliance
with rules –
interdict granted by consent of the parties – punitive order of
costs granted against union – principles
of union
accountability examined
JUDGMENT
MYBURGH, AJ
Introduction
[1]
On
7 August 2015, I granted an order,
inter
alia
,
compelling the second and further respondents (“the strikers”)
to comply with the picketing rules agreement concluded
between the
parties, and interdicting and restraining the strikers from engaging
in various unlawful acts in contravention of the
agreement.
[2]
In
circumstances where the aforesaid order was granted by consent of the
parties, it was not necessary at the time to decide the
issue of
costs (a punitive order having been sought) on an urgent basis.
Having heard argument and considered the papers, this
is my decision
on that issue.
Background
[3]
On
28 July 2015, a protected strike over wages called by the first
respondent (“AMCU”) commenced at the premises of
the
applicant (“the company”), a sawmill operation situated
in Mpumalanga.
[4]
On
23 July 2015, and in the run up to the strike, the parties concluded
a picketing rules agreement in terms of section 69 of the
LRA
[1]
– this with the assistance of the CCMA. The agreement, which
incorporated the Code of Good Practice on Picketing, is a typical
one
and its terms need not be narrated for present purposes save for one
issue – it being that Mr Mazibuko (AMCU’s
regional
organiser in Mpumalanga) was appointed as the strike control
“convenor” and was to be available to be contacted
at all
times.
[5]
On
the evening of 4 August 2015, the company launched an urgent
application for the relief referred to above, and enrolled the matter
for hearing on 7 August 2015. On that day, AMCU delivered an
answering affidavit, in which it indicated that it did not oppose
the
relief sought by the company, save for the punitive costs order, and
sought to defend itself against such an order. It was
in these
circumstances that the order (by consent) referred to above was
granted, with the issue of costs being reserved.
The
parties’ cases
The
company’s case
[6]
According
to the company, immediately upon the strike commencing on 28 July
2015, the strikers failed to comply with the picketing
rules. On that
day and those that followed in the run up to the urgent application,
the strikers contravened the picketing rules
by: carrying weapons;
picketing outside the designated area; moving into the main road;
stopping vehicles and removing commuters
from public transport;
prohibiting employees from entering the workplace; blockading the
entrance to the company’s premises;
and damaging a vehicle
belonging to the company.
[7]
Things
got so out of control that, on 3 August 2015, the company was forced
to shut down its operations completely. The next day,
4 August 2015,
the strikers threatened the managing director by stating that he
would not leave the premises that day, and chanting
“shoot
Edward”. The SAPS’ riot squad was called in, but it was
apparently disinclined to intervene in the absence
of a court order.
It was in these circumstances that the urgent application was
launched.
[8]
For
present purposes, the attempts made by the company to engage with
AMCU to resolve the issue, and its response, warrant consideration
(the company’s version follows).
a)
On
the morning of Tuesday, 28 July 2015 (at 08h01), the company
addressed a letter to Mr Mazibuko requesting his urgent intervention.
The letter narrates a series of serious breaches of the picketing
rules and unlawful conduct on the part of the strikers, including
strikers carrying weapons (including machetes), moving to the main
road, stopping vehicles and removing commuters from public transport,
and preventing entrance to the workplace. The letter also records
that the company would hold AMCU liable for the costs associated
with
the enforcement of the picketing rules.
b)
During
the afternoon of 28 July 2015, the company addressed a further letter
of similar content to Mr Mazibuko, bringing to his
attention that the
strikers were persisting in their breach of the picketing rules.
Reference was made in this letter to the severe
risks associated with
strikers gathering unlawfully on the road used by heavy duty
vehicles.
c)
On
the morning of Wednesday, 29 July 2015, the company addressed a
follow up letter to Mr Mazibuko, again narrating breaches of
the
picketing rules by the strikers and requesting his urgent
intervention. Mention was made of strikers again not being in the
demarcated area, wielding dangerous weapons, and prohibiting
non-strikers from entering the workplace. The letter ends by
recording
that the company would be forced to approach this court for
an interdict, unless the situation was brought under control.
d)
During
the afternoon of 29 July 2015, the company sent another letter of
similar content to Mr Mazibuko. It was recorded in this
letter that
the strikers were “chanting slogans referring to shooting the
employer”. Again, a threat of a Labour Court
interdict was
made.
e)
Also
during the afternoon of 29 July 2015 (at 14h57) (and apparently
before receipt of the company’s second letter of that
day), Mr
Mazibuko responded to the company’s letters referred to above.
The body of Mr Mazibuko’s letter reads:
“
This
union abide and confine itself to the picketing rules signed by both
parties and as a result of this, our regional secretary
(John Sibiya)
did address the workers on 28 July 2015, that they need not to block
the main road and that they should be within
the designated areas
that parties have agreed upon.
To
date, we have not received any complaints from the SAPS or heard of
any forms of intimidation or damage of property by the striking
members.”
f)
On
Thursday, 30 July 2015, and in response to this, the company
addressed a letter to Mr Mazibuko recording that “[t]he records
of your members continuing to breach the picketing rules are
available for your perusal”. (No response was ever received
to
this invitation.)
g)
On
Tuesday, 4 August 2015, the company’s attorneys of record
addressed a lengthy letter to Mr Mazibuko. The letter records
the
terms of the picketing rules (including Mr Mazibuko’s
obligation to intervene on an urgent basis) and the history of
what
had transpired to date. It records that further to AMCU’s
letter of 29 July 2015, strikers continued to contravene the
picketing rules, with mention being made of the fact that: all staff
stayed away from work on 3 August 2015 due to fear of intimidation;
the plant was now totally shut down as a result of the conduct of the
strikers; strikers were carrying weapons and singing intimidating
slogans; the strikers refused to remain in the demarcated area; and
the safety of the workplace, employees and customers had been
placed
at severe risk by the strikers.
h)
The
letter goes on to put AMCU to terms: should the strikers persist with
unlawful conduct in breach of the picketing rules that
day, the
company would approach this court for urgent relief, and seek a
punitive costs order against AMCU. This letter appears
to have been
sent to AMCU (by email) at 07h43.
i)
No
response was received to this letter during the course of 4 August
2015, with the strikers persisting in their unlawful behaviour
–
it being on this day that the managing director was threatened (this
after the aforesaid letter was sent). In the result,
the company
launched its urgent application.
AMCU’s
case
[9]
The
key allegations made by AMCU in its answering affidavit (deposed to
by Mr Mazibuko) are as follows:
a)
In
effect, Mr Mazibuko’s letter of 29 July 2015 adequately dealt
with the matter up to that point in time.
b)
Between
30 July and 4 August 2015, AMCU received no further complaints, with
it being the deponent’s belief that picketing
had been
conducted in accordance with the picketing rules.
c)
On
the morning of 4 August 2015, the company had failed to send busses
to collect those of the strikers residing in the nearby townships
and
convey them to the designated area, as had been done in the past.
This necessitated them having to walk to work, which caused
them
frustration and annoyance (which according to AMCU caused the company
to send its letter to AMCU at 07h43). In response to
the agitation of
the strikers, Mr Ntlamane (the chairperson of the AMCU branch
committee and one of the marshals appointed in terms
of the picketing
rules agreement) addressed them, and prevailed upon them to comply
with the picketing rules.
d)
Mr
Ntlamane did so again on the afternoon of 4 August 2015, when
strikers became disgruntled by the fact that electricity and water
at
the hostels had been turned off, which they imputed to the company.
After addressing the strikers, Mr Ntlamane engaged with
management,
with AMCU having been informed later that afternoon that the
electricity and water supply had been restored.
e)
The
company was aware of the concerns of the strikers and the reasons for
“their particular frustration and non-violent demonstration
on
4 August 2015”. (What exactly this was meant to convey is
unclear.)
f)
With
reference to the contents of the company’s letter of 4 August
2015, AMCU baldly denied that: any property was damaged;
the company
ceased operations because of the conduct of the strikers; weapons
were carried by the strikers; any threatening or
intimidatory chants
were made to anyone; and that any vehicles, security guards, clients
or visitors were in any way threatened
or harassed.
g)
As
far as AMCU was concerned, it had at all times “maintained
positive engagement with the [company] and … responded
promptly to each complaint or concern expressed by the [company]”.
In all the circumstances, there was (according to AMCU)
no basis for
the award of a punitive costs order.
Union
accountability for the conduct of its members
[10]
This
court has previously indicated that unions are at risk of a punitive
costs order where their members conduct themselves unlawfully
during
a protected strike, and where the union itself does not take all
reasonable steps to prevent this. As Van Niekerk J put
it in
Tsogo
Sun Casinos (Pty) Ltd t/a Montecasino v Future of SA Workers Union &
others
(2012) 33
ILJ
998 (LC):
“
This
court must necessarily express its displeasure in the strongest
possible terms against the misconduct that the individual respondents
do not deny having committed, and against
unions
that refuse or fail to take all reasonable steps to prevent its
occurrence
.
Had the applicant not specifically confined the relief sought to an
order for costs on the ordinary scale,
I
would have had no hesitation in granting an order for costs as
between attorney and own client
.”
[2]
(Own emphasis.)
[11]
This
dictum
accords with others in which this court and the LAC have endorsed the
principle of union accountability for the unlawful conduct
of its
members during the course of a strike. The following quotes from some
of the more well-known judgments will suffice.
a)
In
In2Food
(Pty) Ltd v Food & Allied Workers Union & others
(2013) 34
ILJ
2589 (LC), Steenkamp J held:
“
The
time has come in our labour relations history that trade unions
should be held accountable for the actions of their members.
For too
long trade unions have glibly washed their hands of the violent
actions of their members.”
[3]
b)
On
appeal to the LAC in
Food
& Allied Workers Union v In2Food (Pty) Ltd
(2014)
35
ILJ
2767 (LAC),
[4]
Sutherland AJA
(as he then was) held:
“
The
respondent’s thesis that a trade union, as a matter of
principle, has a duty to curb unlawful behaviour by its members
indeed enjoys merit. Indeed, the principle of union accountability
for its actions or omissions is beginning to gain recognition
[5]
…
The
sentiments expressed by the court
a
quo
which are cited above [see above] have been rightly described by Alan
Rycroft as a ‘significant moment of judicial resolve’.
[6]
…
Indeed, the sentiments deserve endorsement, and are adopted by this
court.”
[7]
c)
In
Xstrata
SA (Pty) Ltd v AMCU & Others
(J1239/13)
[2014] ZALCJHB 58 (25 February 2014), Tlhotlhalemaje AJ held:
“
It
has become noticeable that unions are readily and easily prepared to
lead employees out on any form of industrial action, whether
lawful
or not. The perception that a union has no obligation whatsoever to
control its members during such activities, which are
invariably
violent in nature cannot be sustained.”
[8]
[12]
These
judgments make it abundantly clear that, in the context of the
pandemic of unprotected strike action and strike violence in
South
Africa, the courts are inclined to hold unions accountable for the
unlawful conduct of their members, and impose on them
obligations to
control their membership. This being a potential means of attempting
to address the pandemic.
[13]
This
approach of union responsibility accords with the approach adopted in
other jurisdictions. In the USA, for example, the National
Labor
Relations Board has held as follows:
“
Where
a union authorizes a picket line, it is required to retain control
over the picketing. If a union is unwilling or unable to
take the
necessary steps to control its pickets, it must bear the
responsibility for their misconduct. Similarly, if pickets engage
in
misconduct in the presence of a union agent, and that agent fails to
disavow that conduct and take corrective measures, the
union may be
held responsible.”
[9]
[14]
Reverting
to the position locally, while the precise legal basis upon which a
union may be held accountable for the unlawful conduct
of its members
is not settled in all instances, where a picketing rules agreement is
in place, the union’s legal obligations
and potential liability
for a breach thereof arise from the agreement itself. Notwithstanding
the express terms of a picketing
rules agreement, it seems to me that
it is implicit in any such agreement that a union is obliged “to
take all reasonable
steps” (to borrow from the words of Van
Niekerk J in
Tsogo
Sun
[10]
)
to ensure compliance by its members with the terms of the agreement.
[15]
To
my mind, this is a fundamentally important obligation. Not only are
picketing rules there to attempt to ensure the safety and
security of
persons and the employer’s workplace, but if they are not
obeyed and violence ensues resulting in non-strikers
also withholding
their labour, the strikers gain an illegitimate advantage in the
power-play of industrial action, placing illegitimate
pressure on
employers to settle. Typically, one of two things then happen –
either the employer gives in to the pressure
and settles at a rate
above that reflecting the forces of demand and supply (which equates
to a form of economic duress) or the
employer digs in its heels and
refuses to negotiate or settle while the violence is ongoing (which
inevitably causes strikes to
last longer than they should). Either
way, the orderly system of collective bargaining that the LRA aspires
to is undermined –
and ultimately, economic activity and job
security is threatened.
Evaluation
and findings
[16]
As
set out above, AMCU’s case is that nothing wrong occurred up
until 4 August 2015, save for the strikers having left
the
demarcated area and blocked the road (which a marshal addressed them
on), and that Mr Mazibuko’s letter of 29 July 2015
constitutes
a proper response by AMCU to the company’s complaints up to
that point in time. I cannot accept this for the
following reasons:
a)
Firstly,
it is difficult (if not impossible) to reconcile AMCU’s denial
of wrongdoing (beyond that admitted) on the part of
the strikers with
its consent to a wide-ranging court order against them, which was
granted on 7 August 2015. Allied to this, it
is difficult to accept a
bald denial by AMCU in this regard over the contemporaneous
complaints recorded by the company in a series
of letters on 28, 29
and 30 July 2015.
b)
Secondly,
Mr Mazibuko’s letter of 29 July 2015 was plainly inadequate for
these reasons: (i) it took him almost two working
days to respond to
the company; (ii) the fact that AMCU had allegedly not received “any
complaints from the SAPS” or
“heard of” any
intimidation or damage to property by the strikers, hardly served as
an adequate answer to the company’s
complaints to the contrary;
and (iii) the inadequacy in the response was further exposed by the
fact that Mr Mazibuko did not take
up the company’s offer on 30
July 2015 to examine the evidence that was available in support of
the company’s complaints
(see further below).
[17]
Furthermore,
AMCU’s case that no further complaints were lodged with it
between 29 July and 4 August 2015 is, to my mind,
self-serving. This
because, as mentioned above, on 30 July 2015, the company tendered
the evidence it had to substantiate its complaints,
but AMCU did not
take up the offer to examine it. On the face of it, laying complaints
with AMCU was not getting the company anywhere.
[18]
The
very purpose of appointing a strike convenor and marshals and putting
in place a system of communication between them and the
company
during the course of a strike (as is now commonplace in picketing
rules agreements) is to attempt to ensure compliance
with the
picketing rules, with a view to keeping a check on strike violence.
Where, in this context, a company tenders evidence
to the convenor of
serious unlawful activity on the part of the strikers, there can be
little doubt that he or she is under an
obligation to investigate it
expeditiously. A failure to do so represents a failure on the part of
the union to take all reasonable
steps to ensure compliance with the
picketing rules, and undermines the entire purpose of such (agreed)
rules.
[19]
Turning
to AMCU’s case regarding the events of Tuesday, 4 August 2015,
it is difficult to understand. While AMCU pleaded,
in effect, that
the strikers were provoked on 4 August 2015 by the absence of
transport and the disconnection of water and electricity
in the
hostels, it never really explained what conduct the strikers engaged
in as a result thereof (and the link to the terms of
the consent
order granted on 7 August 2015). While denying the statement made in
the company’s letter sent at 07h43 that
morning that
intimidatory slogans were chanted, AMCU does not deny that –
after the letter was sent – the strikers
had stated that the
managing director would not leave the premises that day, and chanted
“shoot Edward”.
[11]
There is nothing on the papers to suggest that the strikers were
censured by the marshals in this regard. In addition to this,
Mr
Mazibuko’s failure to respond to the company’s letter of
4 August 2015 (sent at 07h43) throughout the course of
that day is,
again, significant.
[20]
Regarding
AMCU’s allegation overall that it had at all times “maintained
positive engagement with the [company] and
… responded
promptly to each complaint or concern expressed by the [company]”,
it seems to me implicit in this that
AMCU recognised that it was
under a legal obligation to do so. With this there can be no quarrel.
But where I disagree is that
AMCU acquitted itself of this
obligation. It fundamentally failed to do so in not reacting to the
company’s tender of evidence
on 30 July 2015.
[21]
With
reference to all of the above, I am satisfied firstly, that the
strikers materially breached the picketing rules agreement
and
engaged in various acts of unlawful conduct (this having given rise
to the court order of 7 August 2015), and, secondly,
that AMCU
itself did not take all reasonable steps to prevent such conduct and
ensure compliance with the picketing rules agreement.
(Consequently,
the company was forced into bringing the urgent application, only for
AMCU to then concede to the substantive relief
sought by the
company.)
[22]
As
held in
Tsogo
Sun
,
[12]
this court will not hesitate in such circumstances to grant a
punitive costs order against the union concerned. This is consistent
with the general principles applicable to the award of a punitive
costs order (such as costs on an attorney-and-client scale),
which
include that such an order is warranted where the conduct of the
party concerned is vexatious and unreasonable.
[13]
The order is granted as a mark of the court’s disapproval of
the offending party’s conduct – in this case, both
the
strikers and AMCU itself.
Order
[23]
In
the premises, the following order is made:
1)
The
first respondent shall pay the costs of the urgent application on the
attorney-and-client scale.
________________________________
Myburgh,
AJ
Acting
Judge of the Labour Court of South Africa
APPEARANCES:
Applicant’s
attorneys: Erasmus-Scheepers Attorneys
Respondents’
attorneys: Larry Dave Inc Attorneys
[1]
Labour Relations
Act 66 of 1995
.
[2]
At para 14.
[3]
At 2591 H-I.
[4]
In this judgement,
the LAC reversed this court’s decision that the union was in
contempt of court. It did so essentially
on the basis that while a
union may be vicariously liable for the unlawful acts of its
members, it cannot be vicariously liable
for contempt of court –
the union itself must be in contempt, with this not having been
established on the facts. But this,
in my view, does not detract
from the important statements (quoted above) that the LAC went on to
make about union accountability
generally.
[5]
The LAC referred
here to
FAWU
v Ngcobo NO & another
(2013)
34
ILJ
3061 (CC), where FAWU was held liable to its own members for failure
to prosecute the members’ interests properly in litigation.
[6]
Rycroft, A “
Being
Held in Contempt for Non-compliance with a Court Interdict: In2food
(Pty) Ltd v FAWU & Others (2013) 34 ILJ 2589 (LC)”
(2013)
34
ILJ
2499.
[7]
At paras 18-19.
[8]
At para 35. The
court went on to find (in paras 36-40) that there exists four legal
grounds upon which a union is obliged to police
its members during
the course of a strike / picket. Firstly, the obligation arises from
section 17 of the Constitution, which
guarantees everyone the right,
peacefully and unarmed, to assemble, demonstrate and present
petitions. As far as the court was
concerned, while the right
accrues to union members, the responsibility to ensure that they
comply with the limitations implicitly
falls on their union.
Secondly, the obligation arises from the relationship of
guardianship between the union and its members.
Thirdly, the
obligation arises from the collective bargaining relationship
between unions and employers. Fourthly, the obligation
arose on the
facts from the process of engagement between the parties, including
the fact that AMCU had called the strike, various
meetings had been
held between the parties, and the fact that AMCU had not distanced
itself from its members and continued to
represent them.
[9]
Plumbers, Local
195 (McCormack-Young Corp)
233 NLRB 1087
(1977), quoted in Gorman
et
al,
Labour
Law Analysis and Advocacy
(Juris Publishing, 2013) at 353, para 10.6. See for a comparable UK
case, the judgment of the Employment Appeal Tribunal in
News
Group Newspapers Ltd and others v SOGAT ’82 and others
[1986]
IRLR 337
, commented on by Deakin
et
al,
Labour
Law
(Hart
Publishing, 2012) at 1059, para 11.22.
[10]
See para 10 above.
[11]
In para 6 of the
company’s letter of 4 August 2015, the company sets out a list
of five unlawful acts / contraventions of
the picketing rules that
had occurred after 29 July 2015. Para 6.2 recorded, in part, that
“strikers are … singing
intimidating slogans”. In
para 12 of AMCU’s answering affidavit, AMCU deals pertinently
with the contents of para
6 of the aforesaid letter, and denies the
contents. However, in para 23 of the company’s founding
affidavit, it is alleged
that, on 4 August 2015 and
after
the aforesaid letter was sent, the strikers threatened the managing
director “by saying that he would not leave the premises
today” and “chanting ‘shoot Edward’”.
(The managing director confirms this in a confirmatory affidavit.)
AMCU did not reply on a paragraph-by-paragraph basis to the founding
affidavit, and did not deny this allegation in its answering
affidavit.
[12]
See para 10 above.
[13]
Gois t/a
Shakespeare's Pub v Van Zyl & others
(2003) 24
ILJ
2302 (LC) at paras 43 and 54.