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[2015] ZALCPE 7
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Nelson Mandela Bay Municipality v South African Municipal Workers Union (SAMWU) and Others (P 410/13) [2015] ZALCPE 7 (13 February 2015)
REPUBLIC
OF SOUTH AFRICA
IN
THE LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH
JUDGMENT
Case
no: P 410/13
DATE:
13 FEBRUARY 2015
Not
Reportable
In
the matter between:
NELSON
MANDELA BAY
MUNICIPALITY
............................................
Applicant
And
SOUTH
AFRICAN MUNICIPAL WORKERS UNION
(“SAMWU”)
......................................................................................
First
Respondent
INDEPENDENT
MUNICIPAL WORKERS UNION
(“IMATU”)
...................................................................................
Second
Respondent
THE
PERSONS REFERRED
TO
IN SCHEDULE “A” AND
SCHEDULE
“B” TO THE
NOTICE
OF
APPLICATION
..................................................
Further
Respondents
Heard:
19 November 2013
Delivered:
13 February 2015
Summary:
An interim order interdicting an unprotected strike cannot be
confirmed when the strike has ceased.
JUDGMENT
LALLIE
J
Introduction
[1]
On 18 September 2013, this court granted an interim order in the
following terms:
‘
1.
That the Applicant’s failure to comply with the provisions of
Section 68(2) of the Labour Relations Act, 1995 (
the
“Act
”) is condoned and that
this application is heard as one of urgency, in accordance with the
provisions of Rule 8 of the Rules
of the above Honourable Court, and
that the non-compliance of the Rule of Court which relate to the time
limits for service and
opposition of this application be condoned
accordingly;
2.
That a Rule
Nisi
do hereby issue calling upon the Respondents, to show cause, if any,
on Thursday, 7
th
November 2013, why a final order should not be granted in the
following terms:
2.1.
Declaring that the acts of the Further
Respondents, in refusing to work in accordance with their contracts
of employment, constitutes
an unprotected strike, in accordance with
the provisions of the Act;
2.2
Interdicting and restraining the First
and/or Second Respondents from promoting, encouraging or facilitating
any strike action such
as that threatened on 13 September 2013, or in
any way conducting or participating in the furtherance of a strike or
in the contemplation
of such strike;
2.3
Interdicting
and restraining the Further Respondents from taking part in any
strike action, or in any conduct in the furtherance
or contemplation
of such strike in respect of the conduct declared to be an
unprotected strike in terms of this order.
3.
That the provisions of sub-paragraphs 2.1,
2.2 and 2.3 above operate as an interim order with immediate effect
pending the return
day of this application.”
Paragraph
4 of the order provides for service of the interim order. The
respondents were granted leave to anticipate the return
date on not
less than 48 hours’ written notice to the applicant. Costs were
reserved for argument on the return date.
[2]
The applicant sought confirmation of the
rule nisi
. The first
and second respondents filed opposing papers. By agreement between
the applicant and the second respondent, the relief
against the
second respondent was withdrawn with no order as to costs.
[3]
The applicant attached schedule A and B to its founding papers.
Schedule A relates to the applicant’s employees who are
stationed at its Sidwell, Korsten and Uitenhage Traffic Departments
(the traffic departments) Schedule B relates to employees stationed
at the applicant’s Despatch, Uitenhage, Walmer, Newton Park,
North End, Goven Mbeki, New Brighton, Zwide, Motherwell, Kwamagxaki
and Linton Grange libraries (the libraries). All the employees in
question are members of the first and second respondent. Giving
an
account of the events which culminated in the granting of the interim
order the applicant submitted that the dispute between
the parties
relates to the re-evaluation or re-grading of positions of the
applicant’s administration staff at the traffic
departments and
libraries. The parties agreed that approval of the regarding of the
employees be sought from the Council of the
first respondent (the
Council) for the salary increments to be implemented before 25 August
2013. For a number of reasons, the
Council did not meet before 25
August 2013. The respondents’ patience got exhausted and on 13
September 2013 the respondents
served the applicant with a strike
notice regarding privatisation and outsourcing of municipal services.
[4]
The applicant submitted that since 23 August 2013, the further
respondents who work in the libraries embarked on an unlawful
strike.
After clocking in, they locked the doors to the entrances of the
libraries and did not render services as required in their
contracts
of employment. The unprotected strike action of the further
respondents who work at the traffic departments took the
form of
preventing members of the public from gaining access to the traffic
departments. During the last week of August and the
first week of
September 2013, the applicant, through its supervisors instructed the
further applicants to stop participating in
the unprotected strike
action and return to their work stations. The instruction was
disregarded. On 30 August 2013, the applicant
instructed the further
respondents who are stationed at the traffic departments, to return
to work no later than 11h00 of the same
day. They refused. On 9
September 2013, the acting Municipal Manager addressed a circular to
the striking employees pertaining
to their conduct and on 13
September 2013, he gave the striking employees an ultimatum to resume
their duties by 16 September 2013,
failing which an application to
compel them would be made. When they did not heed it, a further
ultimatum was issued for the striking
employees to resume their
duties by 08h00 the following day. The unprotected strike was
accompanied by violence which prevented
those applicant’s
employees who were not participating in the unprotected strike from
performing their duties. The urgent
application was served via email
at 08h48 on 18 September 2013 and set down for hearing on the same
day at 14h00. The interim order
with a
rule
nisi
returnable on 7 November 2013 was
granted on the same day. On 7 November 2013, the
rule
nisi
was extended to 19 November 2013.
Application to
amend the rule nisi
[5]
On 19 November 2013, the applicant filed an application to
effectively amend the
rule nisi
by deleting the sub-paragraphs
2.1, 2.2 and 2.3 of the notice of motion and substituting them with
the following:
‘
Declaring
that the strike, on 25 August 2013 to 12 September 2013, and that the
applicant’s libraries and Traffic Departments
in Uitenhage,
Despatch and Port Elizabeth constitutes an unprotected strike.’
It
was argued on behalf of the applicant that by seeking the amendment,
they wished to confirm and make final the declaratory relief
as the
interim order no longer suited the needs of the parties. The
applicant no longer sought both the injunctive and declaratory
relief
it originally sought.
[6]
The application is opposed by the first respondent; firstly, on the
grounds that the proposed amend order would serve no purpose
as the
applicant had failed to identify the employees who participated in
the unprotected strike. It was further argued on behalf
of the first
respondent that this court cannot allow an amendment which completely
and fundamentally changed the relief sought
in the interim order. The
amendment would afford the applicant an unfair opportunity to correct
the flaws in its original claim
and its failure to serve the interim
order on most of the further applicants.
[7]
The purpose of granting an amendment is to obtain a proper
ventilation of the dispute and to determine the real issues between
the parties so that justice can be done.
[1]
An application for amendment is not granted if it is
mala
fide
or if it would cause an injustice to the other side which cannot be
compensated by costs.
[8]
The effect of the amendment would be that three prayers will be
deleted from the interim order. They are, firstly, the order
declaring the acts of the further respondents in refusing to work in
accordance with their contracts of employment constitute an
unprotected strike. Secondly, the paragraph interdicting and
restraining the first and second respondents from promoting,
encouraging
or facilitating any strike action such as that threatened
on 13 September 2013 or in any way conducting or participating in the
furtherance of a strike or in contemplation of such strike. The last
paragraph the applicant seeks to delete is the one interdicting
and
restraining the further respondents from taking part in any strike
action or any conduct in furtherance or contemplation of
such strike
in respect of the conduct declared to be an unprotected strike in
terms of the order. After the three sub-paragraphs
have been deleted,
the applicant seeks an order declaring the strike from 25 August 2013
to 12 September 2013 at the applicant’s
libraries and Traffic
Departments in Uitenhage, Despatch and Port Elizabeth to constitute
an unprotected strike.
[9]
The effect of the amendment, should it be grated would be the
omission of the applicant to disclose the identity of the persons
against whom the final order should be granted. The applicant no
longer seeks an interdict restraining the first and/or second
respondent from promoting or facilitating strike action such as the
one threatened on 13 September 2013. It seeks to have the strike
action which its employees at the libraries and traffic department
embarked on from 25 August to 12 September 2013, which are dates
before the 13 September 2013 to be declared to constitute an
unprotected strike. In the interim order, it is the conduct that was
merely threatened on 13 September 2013 that was interdicted and in
the proposed amendment, it is the conduct before the threatened
one
which the applicant seeks to have declared an unprotected strike.
Effectively, the applicant seeks to have its relief back-dated.
[10]
When the test for granting an amendment is considered against the
applicant’s submissions of its intention to amend,
the only
conclusion that can reasonably be reached is its refusal. The
proposed amendment is not even remotely related to a proper
ventilation of the dispute before me. It will also not assist in the
determination of real issues. It is an attempt by the applicant
to
cure defects in its case which include its omission to identify the
employees who participated in the unprotected strike and
its omission
to serve the interim order on most of the further respondents. The
application for amendment can, in the circumstance,
not succeed.
[11]
The applicant further filed an application to strike out three
annexures SN1, SN2 and SN7 to the first respondent’s answering
affidavit on the grounds that they contain privileged material. In
SN1, the first respondent’s attorney’s letter dated
15
October 2013, the applicant’s attorneys are informed that the
first respondent intimated that the events which necessitated
the
applicant obtaining the interdict as against the first respondent
have been resolved, alternatively, come to an end. The applicant
is
further asked to confirm that it would attend at Court on 7 November
2013 to discharge the Rule with each party to pay their
costs. In
SN2, the applicant’s attorneys reply to SN1 in a letter dated
18 October 2013, by conveying the applicant’s
unwillingness to
agree to the proposal regarding the discharge of the Rule referred to
in SN1. They further ask the first respondent
to file its answering
affidavit by close of business. In SN7, the first respondent makes an
undertaking to the applicant in a letter
dated 18 September 2013,
that its striking members would be at their work stations on or
before 14h00 on 18 September 2013. It
further requests the applicant
not to pursue the application for an interdict as there are
discussions between the parties which
seek to find a permanent
solution to the mater relating to the grading of the employees.
[12]
It was argued on behalf of the applicant that statements made
expressly or impliedly without prejudice in the course of
bona
fide
negotiation for the settlement of the dispute may not be disclosed in
evidence without the consent of both parties. The purpose
of this
principle is to allow people to try to settle their disputes without
the fear that the contests of their negations will
be used against
them should the negotiation break down.
[2]
The applicant, therefore, sought a costs order against the first
respondent for disclosing settlement negotiations.
[13]
The first respondent denied any wrong doing in disclosing the
correspondence. It was argued on behalf of the first respondent
that
the
Naidoo
judgment (
supra
) is distinguishable from the
matter at hand as it referred to a substantial offer made by an
insurance company to make the matter
go away. In the present matter,
the first respondent alleged that it received a curt response. It,
therefore, sought its costs
for the return day. The Naidoo judgment
is distinguishable in that it refers to
bona fide
efforts by
both parties to settle the claim. In the matter at hand there was no
effort on the part of the applicant to settle the
dispute. The
application to strike out the annexures cannot succeed as their
contents are not privileged.
[14]
The first respondent argued that the
rule
nisi
should be discharged on the
grounds that the interim order should not have been granted as the
application for the interdict did
not comply with section 68 (2) of
the Labour Relation Act 66 of 1995 (the LRA) which provides as
follows:
‘
(2)
The Labour Court may not grant any order in terms of subsection (1)
(a) unless 48 hours’ notice of the application has
been given
to the respondent: However, the Court may permit a shorter period of
notice if-
(a)
the applicant has given written notice to the respondent of the
applicant’s intention to apply for the granting of an
order;
(b)
the respondent has given a reasonable opportunity to be heard before
a decision concerning that application is taken; and
(c)
the applicant has shown good cause why a period shorter than 48 hours
should be permitted’.
Section
68 1(a) grants the Labour Court exclusive jurisdiction to grant an
interdict or order to restrain any person from participating
in an
unprotected strike or any conduct in contemplation or in furtherance
of an unprotected strike. This flies in the face of
the ultimatum
addressed to the first and second respondent by the applicant on 13
September 2013 in which the applicant requests
the first and second
respondent to facilitate the return of their members to work by 08h00
on 16 September 2013. The applicant
further informs the first and
second respondent that failure to adhere to the ultimatum would lead
to litigation in that the municipality
would apply for an interdict
to prohibit the first and second respondent’s members from
striking.
[15]
The first respondent submitted that another reason which militated
towards the discharge of the rule is that the strike ceased
a day
after the interim order was granted. There is no danger that it will
break out again and the rule has become academic. It
relied on
Ekurhuleni
Municipality v SAMWU and Others,
[3]
in arguing that an interim order is discharged or confirmed on the
facts pertaining on the return date. The applicant argued that
Ekurhuleni
(
supra
)
is distinguished from the present matter in that the applicant seeks
confirmation of declarative and injunctive relief against
the first
respondent. The applicant further sought to rely on paragraph 19 of
the
Ekurhuleni
(
supra
)
where the court expressed the view that there would be merit in
confirming declarative relief against the parties especially where
the lawfulness of any strike is disputed by the respondent. I am not
persuaded by the applicant’s argument because the lawfulness
of
the present strike is not in dispute.
[16]
I have considered the applicant’s argument as well as the
authority it sought to rely on that an existing dispute is
not an
essential pre requisite for the grating of a declaratory order. Where
litigation has commenced, so went the argument, and
at a time where
there was a live dispute between the parties, the court will proceed
to decide the issues, even though at the time
of the hearing no
actual dispute remains between the parties. The applicant needs to
have an interest to protect or a matter in
which a real question is
involved and on which the Court’s decision gives practical
guidance. Each case is decided on its
merits. The principles the
applicant sought to rely on are not relevant to the facts and
circumstance of the dispute at hand. It
is not in dispute that the
strike is unprotected and there is therefore no need for guidance.
The applicant has no interest that
needs to be protected. It cannot
seek protection against only a portion of the faceless employees who
embarked on an unprotected
strike. The applicant’s efforts to
create an impression that it was impossible to identify the striking
employees were unsuccessful.
[17]
I agree with the first respondent that the rule is too wide. It is
not limited to the unprotected strike which triggered the
urgent
application but prohibits, indefinitely, the first respondent from
encouraging or facilitating any strike such as that threatened
on 13
September 2013. Such a wide order encroaches on the right to strike
and cannot be confirmed. The unprotected strike has ceased
and there
is no conduct to be interdicted. The order declaring the strike
action of 25 August to 12 September 2012, at the libraries
and
traffic departments, can also not be granted. The applicant has not
identified the employees the order is directed to. Although,
the
names of the employees who are targeted in the proposed declaratory
order are not disclosed should it be granted, it will automatically
affect,
inter alia
, the first respondent’s members as
strike action at the libraries and traffic departments from 25 August
to 12 September
2013 cannot exist without employees who participate
in it. The applicant failed to establish a basis for the declaratory
relief
and it can therefore not be granted.
[18]
Lastly, the first respondent submitted that the application is not
urgent. The applicant threatened to take disciplinary action
against
further respondents for not heeding the ultimata to return to their
work stations. The threat illustrates that taking disciplinary
action
against the further respondents was alternative remedy to the urgent
application. The applicant’s urgency is self-created
in that by
its own admission, the unprotected strike commenced on 23 August 2013
but it filed its urgent application on 18 September
2013. I have
taken cognisance of the applicant’s argument that it attempted
to resolve the dispute and avoided rushing to
court. The striking
employees’ refusal to heed the ultimata was expressed shortly
after the first was issued. As early
as 30 August 2013, the
applicant threatened to take whatever action it deemed necessary to
ensure service delivery. It, therefore,
did not deem it necessary to
launch its urgent application shortly thereafter. There was no
impediment to the applicant’s
ability to launch the urgent
application shortly after the commencement of the strike. It,
therefore, has itself to blame for the
delay. Rule 8 requires
applicants for urgent relief to give reasons for urgency and disclose
why urgent relief is necessary. Urgent
relief cannot be necessary
when the applicant has delayed in approaching the court. This
application stands to be dismissed because
it is academic and for
lack of urgency.
[19]
The applicant sought a costs order against the respondent for
disclosing privileged correspondence without its consent. It
however
failed to establish privilege. The unprotected strike action the
applicant sought to interdict ceased a day after the interim
order
was granted. There is no merit in the applicant’s argument that
it was necessary to pursue the issue of declaratory
relief on grounds
of public policy. The first respondent opposed this application in an
effort to assert its right to strike. Considerations
of the law and
fairness justify an appropriate costs order in favour of the first
respondent.
[20]
In the premises the following order is granted:
20.1
The application for amendment is dismissed.
20.2
The application to strike out is dismissed.
20.3
The urgent application is dismissed.
20.4
The applicant is directed pay the first respondent’s costs of
19 November 2013.
Lallie J
Judge
of the Labour Court of South Africa
Appearance
For the
Applicant: Advocate Smith
Instructed by:
Joubert Galpin & Searle Inc
For the First
Respondent: Advocate Grogan
Instructed
by: SAMWU
[1]
Blaauwberg
Meat Wholesalers CC v Anglo Dutch Meats (Exports) Ltd
[2004] 1 ALL SA 129
(SCA) at 133 H-I.
[2]
Naidoo
v Marine Trade Insurance Co Ltd
1978 (3) SA 666
(A) at 677.
[3]
[2011] 5 BLLR 516
(LC) at para 27.