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[2016] ZALCCT 28
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Parliament of the Republic of South Africa v NEHAWU (C972/2015) [2016] ZALCCT 28 (18 March 2016)
IN THE LABOUR COURT OF SOUTH
AFRICA
(
CAPE
TOWN
)
CASE
NUMBER
:
C972/2015
DATE
:
18 MARCH
2016
In
the matter between:
PARLIAMENT
of the
REPUBLIC
OF SOUTH AFRICA
Applicant
and
NEHAWU
Respondent
J
U D G M E N T
STEENKAMP,
J
:
This
is the return day of a
rule nisi
that was initially granted by Nkutha-Nkontwana, AJ on 11 November
2015. The rule was subsequently extended by Rabkin-Naicker,
J
on three occasions, that is on 27 November 201;, 4 December 2015; and
29 January 2016. The applicant is the Parliament
of the
Republic of South Africa and the respondent is the trade union
Nehawu. Both parties have filed founding, answering
and
replying affidavits and the matter comes before court today as a
final return day in which Parliament is asking for the
rule
nisi
to be confirmed. Nehawu opposes
it.
It
is common cause that Nehawu embarked on an unprotected strike in
November 2015. It is also common cause that Parliament
is an
essential service and that Nehawu was not allowed to call its members
out on strike. It is further common cause that
the rule
nisi
issued on 11 November operated as an interim interdict pending the
return day; that it declared the strike and protest action of
Nehawu
and its members to be unlawful; and that it interdicted Nehawu and
its members from participating in the strike or from
entering and
occupying the Parliamentary buildings and meeting chambers of
Parliament.
Despite
that, Nehawu disregarded the interdict and continued with the strike
action for almost a month until 7 December 2015.
It is against
that background of disregard for the interdict issued by
Nkutha-Nkontwana, AJ that the matter now comes before court.
On
the law relating to unprotected strikes, there is no argument to be
made out that the interdict should not be confirmed, given
that it is
a common cause issue that it is an unprotected strike; that
Parliament is an essential service; and that the union defied
the
interim court order.
The
only real issue for determination is whether the matter is not now
moot, seeing as an agreement was reached on 7 December 2015
whereby
the strike was called off and the union’s members agreed to
return to work. Against that argument, eloquently
made by Mr
Thembe
for
the union, Ms
Golden
drew the Court’s attention to the evidence before Court in both
the founding and the replying affidavit that, despite that
agreement,
the issues giving rise to the strike remain unresolved.
The deponent to the replying
affidavit, Ms Penelope Tyawa, the Deputy Secretary of Parliament,
states that the issue of performance
bonuses has still not been
resolved. It is a live and ongoing dispute which emanates from
the unprotected strike in November
2015 and which gave rise to the
strike.
Against
that background, she expresses the fear that harm may still be caused
by Nehawu repeating its unlawful actions unless the
interim interdict
is made final. She further points out that Nehawu launched an
urgent application in this Court a week ago
on 11 March 2016, on
extremely short notice, seeking to interdict Parliament from
deducting money from its members’ salaries,
despite the
agreement that it had reached on the “no work, no pay”
principle. That as well, points to the fact
that the issues
between the parties are not unresolved.
Ms
Golden
argued that, because of that, there remains a fear and a likelihood
of further harm caused by similar unlawful actions by the union
and
its members, should the rule not be confirmed. I am persuaded
that that fear is real, given the history of this matter
and the
previous conduct of the union in the face of an interim interdict
issued out of this Court.
It
follows that the rule
nisi
should be made final. However, I do not agree with the first part of
the order that declares the strike “unlawful”.
The right
to strike is protected in the Constitution. But it is regulated by
national legislation in the form of the Labour Relations
Act. The
strike is unprotected but not necessarily unlawful. I intend to amend
the first part of the final order accordingly.
The only issue remaining is that of
costs. This Court may take into account that prescripts of both
law and fairness. In law,
costs should follow the result. In
fairness, I do take into account that there is an ongoing
relationship between Parliament and
Nehawu. However, as the
Secretary of Parliament and Ms
Golden
both point out, the
union has, firstly, expressed its own view that it need not adhere to
the dispute resolution procedure in a
recognition agreement in place
between the parties. The deponent in its answering affidavit,
Mr Mocumi, the Chairperson of
the Parliamentary branch of Nehawu,
says that the union is under no obligation to invoke this procedure.
Furthermore, the union
has acted contemptiously towards the
applicant, the laws of the Republic and towards this Court by
disregarding the terms of the
order issued by Nkutha-Nkontwana, AJ on
11 November and subsequently extended. Parliament -- and
therefore the taxpayers
of South Africa -- cannot be expected to
incur the costs of having brought the union to Court and having
appeared in Court on five
occasions in circumstances where the union
has chosen not to adhere to the laws of this country, more
specifically the Labour Relations
Act.
In
those circumstances, in law and fairness, the respondent should pay
the applicant’s costs.
A final order is therefore granted in
the following terms:
It
is declared that the strike and protest action of the respondent,
NEHAWU, and its members is unprotected.
The
respondent and its members are interdicted from calling upon,
inciting or encouraging their members who are employed by Parliament
of the Republic of South Africa, the applicant, to strike or picket
within the precincts of Parliament.
The
respondent and its members are interdicted from entering and
occupying the Parliamentary buildings and meeting chambers of
the
applicant, including the National Assembly and Old National Assembly
Chambers.
The
respondent and its members are interdicted from disrupting
Parliamentary Portfolio Committee meetings and other sittings of
Parliament.
The
respondent and its members are interdicted from intimidating,
harassing or assaulting officials, employees and visitors of
the
applicant on its premises and the parliamentary precinct.
The
respondent and its members are interdicted from damaging or
destroying property of the applicant.
The
respondent is ordered to pay the applicant’s costs.
___________________________
STEENKAMP,
J
APPEARANCES
APPLICANT:
Ms T Golden
Instructed
by the state attorney.
RESPONDENT:
Mr T Thembe (union official)
.