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1991
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[1991] ZASCA 26
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National Union of Metal Workers of South Africa and Others v Gearmax (Pty) Ltd (497/89) [1991] ZASCA 26; 1991 (3) SA 20 (AD); (1991) 12 ILJ 778 (A) (26 March 1991)
IN THE SUPREME COURT OF SOUTH AFRICA
(
APPELLATE DIVISION
)
CASE NO. 497/89
In the appeal of
NATIONAL UNION OF METAL WORKERS
OF SOUTH AFRICA
1st
APPELLANT
NAHAIM ALLIE AND OTHERS
2nd to 167th APPELLANTS
and
GEARMAX (PTY) LTD
RESPONDENT
Coram
: HOEXTER, VIVIER, EKSTEEN et NIENABER JJA; PREISS
AJA
Date heard
: Friday 8 March 1991
Date delivered
: Tuesday 26 March 1991
2 JUDGMENT
PREISS
AJA
The appellant is the National Union of Metal Workers of South Africa (the
union), a trade union registered in terms of the Labour
Relations Act 28 of 1956
(the Act). Relief was claimed against the union in an urgent application
launched by Gearmax (Pty) Ltd (Gearmax),
the present respondent, a manufacturer
of rear-drive axles and allied components at its plant in Uitenhage. The
application, brought
in the South-Eastern Cape Local Division, dealt with the
alleged refusal of a number of employees of Gearmax to perform overtime
work.
The first respondent was the union. The 2nd to 167th respondents in
.../3
3 the court below fell into two broad categories. The one,
constituted by the 2nd to 148th respondents, consisted of employees who
had
signed standard contracts of employment in terms of which they undertook "to
work the ordinary hours and overtime hours required
by the company", i e
Gearmax. The other, consisting of the 149th to 167th respondents, had not agreed
expressly to work overtime
hours. The deponent for Gearmax stated in the
founding affidavit that "they have always worked overtime as and wheh required
by management
in accordance with the business requirements of the company" and
that a practice had thus developed "stretching over many years".
In the
answering affidavit of the union this allegation was denied, albeit baldly.
The refusal to perform overtime work first manifested itself on 1 March 1989.
Thereafter discussions and negotiations
.../4
4 took place between the parties; they will be described in
appropriate detail at a later stage. The discussions and negotiations
came to
naught. On 9 March 1989 Gearmax launched an urgent application
ex parte
and obtained the following relief:
"It is ordered:
1. That the forms and service provided for in the rules be dispensed with by the
Court and that this matter be disposed of as one
of urgency in terms of Rule
6(12).
2. That a rule nisi be issued calling upon the Respondent to show cause on 29
March 1989 why a final Order should not be granted
in the following
terms:
.../5
5
2.1
Declaring that the combined
acts of the Second and Further Respondent employees in refusing or failing to
work normal overtime with
the intention of compelling the Applicant to accede to
their demands constitutes an unlawful strike in terms of Section 65 of the
Labour Relations Act No. 28 of 1956;
2.2
Interdicting and restraining the Second and Further Respondent
employees from participating and continuing with the conduct set out
in
paragraph 2.1 above without first complying with the provisions of Section 65 of
the Act and the provisions of the Applicant's
Disputes
Procedure:
2.3
Interdicting and restraining
the Respondents from continuing to instigate or
instigating
.../6
6 the strike referred to in
paragraph 2.1 above or inciting any of Applicant's employees to take part in or
to continue such a strike
until the provisions of Section 65 and the provisions
of the Disputes Procedure of the Applicant have been complied with; 2.4 Ordering
the First Respondent forthwith to take full steps to ensure that its members
employed at the Applicant's Uitenhage premises observe:
2.4.1
The provisions of the
Grievance Procedure in force at the Applicant's Uitenhage
premises;
2.4.2
The provisions of the Labour
Relations
Act and in particular that they
discontinue the ban on overtime until the provisions of the Disputes Procedure
and Act have
.../7
7 been complied with; 2.5 Ordering that the First Respondent and
such
of the Second and Further Respondents who
oppose this application pay the Applicant's costs, jointly and severally, the
one paying
the other to be absolved;
3. That pararaphs 2.2, 2.3 and 2.4 operate as an interim interdict pending the
final decision of this application."
(The rest of
the order provides for modes of service and for the anticipation of the rule
nisi
; it need not be further considered.)
The rule
nisi
was extended until 29 March 1989 upon which
.../8
8
date it was confirmed against all the employees, namely, the
2nd to 167th respondents, on an unopposed basis. The union, on the other
hand,
gave notice of opposition, filed answering affidavits and opposed the
confirmation of the rule on the extended return day.
On 23 May 1989 Ludorf J
confirmed the rule against the union in the following terms:
"1. I declare that the combined acts of the second and further respondent
employees in refusing or failing to continue to work normal
overtime with the
intention of compelling the applicant to accede to their demands, constitutes an
unlawful strike in terms of Section
65 of the Labour Relations Act No. 28 of
1956. 2. I grant an interdict interdicting and restraining the first respondent
from continuing
to instigate the strike referred to in paragraph 1 above, or
.../9
9 inciting any of the applicant's employees to take part in or to continue such
a strike until the provisions of Section 65 have
been complied with.
3. The first respondent is ordered forthwith to take
steps to ensure that its
members employed at the
applicant's Uitenhage premises
observe:
(a) The provisions of the Labour Relations
Act and in particular that they discontinue the ban on overtime until the
provisions of
the Act have been complied with, and
4. The first respondent is ordered to pay the costs
of this
application."
The union applied for leave to appeal
which was duly granted. In argument before us two separate issues were canvassed
in counsel's
heads of argument. The first was whether the refusal
.../10
10 to perform overtime work constituted an illegal strike;
it was abandoned at the stage of argument by the appellant's counsel, Mr
Lang.
The second issue was whether the Court
a quo
was correct in granting
relief against the union on the ground that it had instigated the strike or
incited the employees within
the meaning of s 65(1) of the Act.
(a)
THE LEGALITY OF THE STRIKE
.
I need say little about this issue. It was abandoned by Mr Lang and, in my
view, correctly. Insofar as the 2nd to 148th respondents
are concerned, there
was an express undertaking to work overtime. A strike, as defined in s 1 of the
Act, includes a "refusal or
failure... to continue to work..." on the part of
any body or number of persons. In
SA Breweries Ltd v Food and Allied Workers
Union and Others
1990 (1) SA
.../11
11
92 (A) this court held that "work" in the above context must be limited to
mean such work as an employee is contractually obliged
to perform. It will be
recalled that in the above case it was held that a collective refusal by
employees to work overtime in order
to induce or compel their employer to accept
their employment demands where such employees were not contractually bound to
perform
overtime work could not amount to an unlawful strike in terms of s 65
(1) of the Act. The corollary is that such collective refusal
by employees who
are contractually so bound would amount to an unlawful strike. That was the
situation in the present case in respect
of the 2nd to 148th respondents.
In the former case (at 96 E - F), Smalberger JA went on to deal with the
obligation of an employee who is tacitly bound to work overtime.
The learned
Judge said:
.../12
12
"It is common cause in the present matter that the employees
were not contractually obliged to work overtime. It
is also not in dispute that they have in the past regularly
worked overtime when required to do so. A long-standing
practice of working overtime could conceivably give rise
to a tacit agreement between an employer and an employee
that the latter will work overtime whenever required
to do so. The employee would then be contractually obliged
to perform such overtime."
I have already stated that the
averment that the 149th to 167th respondents always worked overtime as and when
required, as also the
conclusion that " a practice stretching over many years
has developed" were denied by the union in its answering affidavit. It seems
to
me that the existence of a tacit
.../13
13 agreement by these employees to work overtime was not
admitted and was consequently unproved.
This conclusion, however, does not affect the second issue. It is clear in my
view (as, indeed, Mr Lang fairly conceded) that there
was an unlawful strike by
the 2nd to 148th respondents. The mere fact that other employees were not
engaged in an illegal strike
but were entitled to refuse to work overtime cannot
avail the union if it had instigated or incited the collective action by those
who were engaged in an unlawful strike.
(b)
INSTIGATION OR INCITEMENT
.
The concept of instigating or inciting a strike has its origin in s 65 (1) of
the Act. It provides that "No employee or
.../14
14 other person shall instigate a strike or incite any
employee to take part in or continue a strike or take part in a strike or in
the
continuation of a strike..." unless and until certain formalities are complied
with. "Instigate" means to spur; urge on; stir
up; stimulate; incite; foment;
provoke (
The Shorter Oxford Enqlish Dictionary
). "Incite" comprehends
something less. The latter word received judicial interpretation in the case of
Dunlop South Africa Ltd v Metal and Allied Workers Union and Another
1985
(1) SA 177
(D), an action dealing with this section of the Act. Booysen JA
adopted the reasoning of Holmes JA in
S v Nkosiyana and Another
1966 (4)
SA 655
(A), where the components of "incitement" were considered. The learned
Judge in the Natal court accepted the definition of Holmes
JA and quoted his
very words (at 188 E - F) in the following passage:
.../15
15 "Counsel were
ad idem
that an 'inciter' in criminal law is one who
reaches and seeks to influence the mind of another to the commission of a crime.
The
machinations of criminal ingenuity being legion, the approach to the other's
mind may take various forms such as suggestion, proposal,
reguest, exhortation,
gesture, argument, persuasion, inducement, goading, or the arousal of cupidity.
The list is not exhaustive.
The means employed are of secondary importance; the
decisive guestion in each case is whether the accused reached and sought to
influence
the mind of the other person towards the commission of a
crime."
In the appeal before us, counsel's arguments were based
upon an acceptance of the correctness of that definition. It is, in my view,
an
acceptable definition for the purpose of this
.../16
16 appeal, which, therefore, turns upon whether it was
established that the union "reached and sought to influence the minds" of its
members towards the refusal by them to perform overtime work.
On this issue the court
a quo
was faced with a dispute of
fact on
the papers. Ludorf J analysed the conflicting averments
and came to the
following conclusion:
"On a conspectus of all the evidence and despite the
dispute raised on the papers, I am satisfied that the probabilities are
overwhelming that the first respondent at least associated
itself and made
common cause with its members' illegal conduct."
The language
employed by the learned Judge falls somewhat
.../17
17 short of the concept of instigating a strike or
inciting an employee, within the meaning of the prohibition in s 65 (1) of the
Act. I am of the opinion, nonetheless, that incitement on the part of the union
was the real basis for this finding. I propose, therefore,
in what follows, to
analyse the sequence of events to assess whether it can be held, despite the
apparent disputes of fact, that
the union incited employees to refuse to perform
overtime work or to continue in such refusal.
On 28 February 1989 Gearmax announced
ad hoc
wage increases
for all
hourly paid employees. It was a series of differentiated
increases depending
upon each employee's grade. In its notice
to these workers Gearmax stated that the wage increase was
being
implemented "to help alleviate the ever-rising cost
of living". This stated
reason for the increase caused worker
.../18
18
resentment; workers, not unexpectedly, took the view that the increased cost
of living affected everyone equally, and that any wage
increase designed to meet
the increased cost of living should be an "across the board" adjustment. Gearmax
became aware of these
rumblings because the offending phrase was deleted from a
substitute notice issued on the same day, namely, 28 February 1989.
On the same day the union's shop stewards approached Gearmax for permission
for the day shift members to be excused overtime that
afternoon in order for
them to attend a general meeting after normal working hours. Permission was
granted. On the following day,
representatives of Gearmax met with the union's
shop stewards and a discussion was held relating to the apparent dissatisfaction
of union members with regard to a differential increase. Gearmax was at
pains
.../19
19 to state that no discrimination or unequal treatment
was intended. Its attitude was that differential increases were in line with
market-related forces which had the effect of higher-skilled employees being
paid more than lower-skilled employees. This argument
was not well-received by
the shop stewards.
While the meeting between Gearmax and the union's shop stewards was still in
progress, it was noticed that no members of the union
were taking their normal
tea break at 4 pm, the break which preceded an overtime shift. From that
afternoon onwards members of the
union comprising both day and night shifts
refused to work overtime. In regard to this refusal it cannot seriously be
disputed that
there was collective action by union members. This is conceded by
Mr M.I Songwiqi, the chairman of the Shop Stewards Committee, in
his affidavit
in support
.../20
20
of the union's answering affidavit. Furthermore,
other shop stewards, namely, Messrs Sineyi, Witbooi and Taai, together with
Songwiqi,
participated in the refusal to perform overtime work.
On 3 March 1989 a meeting was held between representatives
of Gearmax and
union shop stewards, Songwigi and Witbooi.
In view of inferences which flow
from the proceedings at this
meeting, the minutes (save for a personal note
at the conclusion
of the record) are appended in full:
"
MINUTES OF MEETING WITH NUMSA SHOP STEWARDS HELD IN PERSONNEL OFFICE ON
FRIDAY 3 MARCH 1989
MANAGEMENT
Messrs E.M Schutte (in the chair)
REPRESENTATIVES
G.R Conibear and A.H Timms.
.../21
21
NUMSA REPRESENTATIVES
Messrs I. Songwiqi and K.
Witbooi.
The chairman asked Mr Songwiqi to confirm what his union members demand
was.
Mr Songwiqi replied that his members were demanding a 50 cents per hour
across-the-board increase.
The cháirman then asked Mr Songwiqi whether his members were going to
persist with their demand and if so, for how long were
they going to
persist?
Mr Songwiqi replied that his members would persist with their demand until
such time as the company granted them their 50 cents across-the-board
increase.
.../22
22
The chairman advised the NUMSA representatives present that
their members conduct was unlawful, in breach of their contracts of employment;
unreasonable, and in the circumstances, constituted an unlawful strike.
The chairman reguested that the NUMSA representatives present report to him
at 6.00 pm that day, the feelings of dayshift and nightshift
re. the
continuation / rescinding of the overtime ban.
Mr Timms commented that Mr Songwiqi had already stated earlier what the
feelings of both dayshift and nightshift are i e they would
continue banning
overtime until such time as their demands are met. The chairman then asked Mr
Songwiqi to reaffirm this,
.../23
23
which he duly did.
Mr Timms commented that, this morning 3/3/89, supervision on dayshift, when
requesting the NUMSA members to work overtime, received
a reply that they would
continue to 'ban overtime' until such time as all Grade 2's were given a 50
cents increase as was the case
with Grade 8's.
He added further that many NUMSA members used wording to the effect that it
wasn't an overtime ban but they are all standing together."
The
minutes indicate clearly that demands were being made by the shop stewards;
Gearmax was informed that the overtime ban would continue
until those demands
were met. That this
.../24
24
was a union attitude, is a legitimate conclusion from the stand taken up by
the shop stewards and by the fact that the workers who
refused to work overtime
were union members.
It is unlikely that the shop stewards would have adopted this attitude and
persisted in their conduct without an indication from the
union itself. Its
regional secretary for the Uitenhage area, Mr J.C Harris, filed an answering
affidavit. He denied emphatically
that the union was taking any part in the
refusal. He claimed that he was merely reporting what his members felt. Since it
was not
a union decision, so he contended, he was not prepared to persuade his
members to return to work. He stated, nevertheless, that he
would speak to them
and try to arrange a return to work if Gearmax would make an across the board
increase of 45 cents per hour.
This offer was made
.../25
25
at a meeting on 7 March 1989 which was attended by shop stewards Songwiqi,
Sineyi and Taai. What is most significant about Harris's
attitude, is that he
asserted vehemently and repeatedly that the strike was lawful, and that the
workers were fully entitled to refuse
to work overtime. This was repeated by him
at the meeting on 7 March 1989, in the presence of the above-mentioned shop
stewards.
He made it clear to the representatives of Gearmax and the shop
stewards present at that meeting that he would not intervene to call
off the
strike. In his own words,
"Voorts het ek gesê dat dit die ander Respondente vrystaan om te besluit
om nie oortyd te werk nie, daar die besluit om wel
oortyd te werk , h vrywillige
een is. Ook het ek gesê dat ek nie bereid is om vir die ander Respondente
te sê om wel
oortyd te werk nie, daar ek geen reg gehad
.../26
26
het om so te doen nie."
Before proceeding to consider the role
played by the union, I should mention that Songwigi denied under oath that he
was present at
the meeting of 3 March 1989. It appears clearly from the
undisputed minutes of the meeting, that he was not only present but that
he took
a prominent part in the exchanges. What does one make of this significant
departure from the truth? In my view, it does not
necessarily lead to the
inference that Songwiqi, as head shop steward, was acting as the spokesman of
the union itself, and had thereby
committed the union to an instigation of the
strike or an incitement of the employees. It serves, at least, however, to rob
his
ipse dixit
(i e that the shop stewards of the union were not a party
to the decision)of acceptance by the court. It is one of the features from
which
the true nature of the union's alleged participation
.../27
27
may be gauged.
The repeated emphasis by Harris that the strike was a lawful one is in my
view significant. It is now common cause, as Mr Lang for
the appellant correctly
conceded, that the strike by the 2nd to the 148th respondents was illegal. It is
inconceivable that members
of the union, and, in particular, the shop stewards
would not have regarded Harris's stated view as an assurance, if not an outright
encouragement, to persist in the strike. Harris was a senior official of the
union. By telling his members that the strike was lawful
he was saying in effect
that they had the union's backing and that their actions had the union's stamp
of approval. It is unthinkable
that Harris's firm stand would not have been
conveyed by the shop stewards to the striking members. Since this was Harris's
bona fide
opinion there would have
.../28
28
been no reaspn for him to conceal it.
Harris attempted to create the picture of a spontaneous reaction by the
employees in which the union had no part. He persisted in
denying the union's
participation while contending outspokenly that the strike was lawful. It may
perhaps be going too far to state
that the union, through Harris, incited the
employees when first they refused to perform overtime work, but there can be no
doubt
that by the proclamation of the lawfulness of the strike, Harris incited
his members "in the continuation of a strike" within the
meaning of s 65 (1) of
the'Act. Furthermore, he seems to have been vested with authority to claim a 45c
per hour across the board
increase, in which event the strike would have ended.
Notwithstanding his attempts to distance the union from the strike, he must
therefore be taken to have associated the union with the strike action
.../29
29
to the extent of having "reached and sought to influence the mind of the
other person" towards the continuation of the strike.
My conclusion is that the protestation by the union that it had no part in
the strike or its continuance was clearly hollow. In this
matter actions spoke
louder than words; the actions in my view established the necessary
incitement.
It remains to deal with the question whether Harris's genuine opinion that
the strike was a lawful one derogates from the above conclusion.
In my view, it
does not. A passage in the judgment by Booysen J in
Dunlop South Africa Ltd v
Metal and Allied Workers Union and Another
(
supra
), at 188 I - 189 C
is particularly apposite. The learned Judge says:
.../30
30
"It seems to me
prima facie
that the second respondent
did reach and did seek to influence the minds of the employees towards the
strike action on 17 August
1984. Even assuming that he might have thought that
the strike would be lawful, the fact remains that he, at a time when he knew
that the employees were 'in a mood to strike', advised them that it would be
lawful to do so. Coming from their union's secretary,
it was a powerful
inducement to strike. His reading of the pre-prepared letter, and in particular
the last two paragraphs, was calculated
to induce the employees to strike. It is
true that he would possibly have lacked the necessary
mens rea
because he
had been advised that such a strike would be lawful but the question is not
whether he is guilty of a crime but whether
he did incite an unlawful strike. It
seems to me, having held that the strike was unlawful, that
.../31
31 it is clear, certainly at the
prima facie
level, that he did incite
the strike and that he and the first respondent thereafter reached and sought to
influence the minds of
the other employees at the other factories of the
applicant to strike unlawfully in sympathy with the Sydney Road factory
strikers.
It is of no comfort to the applicant, who is seeking an interdict
against such strikes, that the respondents may genuinely believe
them to be
lawful."
Insofar as this reasoning is relevant to the present
appeal, I regard it as correct. Harris's view, however genuinely held, cannot
avail the union. It follows that in this application there was no real dispute
of fact sufficient to preclude a finding on the merits
without recourse to
viva voce
evidence. Accordingly, the appeal must fail.
.../32
32
The question of costs requires analysis. Mr Wallis, on behalf of Gearmax, the
respondent, asked for the costs of two counsel. He argued
that the issues, prior
to Mr Lang's abandonment of the legal dispute, were complex. He stated further
that labour relations constitute
a burgeoning field of law and that decisions of
this nature were important for both management and labour for the adjustment of
their
respective interests. Mr Lang, on behalf of the appellant, argued that
this appeal, even bêfore the issues were narrowed, was
within the
competence of a single counsel.
In my view, the issues were not involved. The legal contentions in regard to
the legality of the strike were forced, and palpably
indefensible. The court was
left with a debate about factual averments where there is clear law regarding
the approach
.../33
33
to be adopted. In all these circumstances, whatever the significance of the
result for future industrial relations, the costs of one
counsel will meet the
case. The appeal is dismissed with costs.
H.J PREISS HOEXTER JA ) VIVIER JA ) EKSTEEN JA ) CONCUR NIENABER JA )