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[2016] ZALCCT 45
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Robertson Winery (Pty) Ltd v CSAAWU and Others (C555/16) [2016] ZALCCT 45; (2017) 38 ILJ 1171 (LC) (18 November 2016)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
JUDGMENT
Of
interest to other judges
Reportable
Case
no: C 555/16
In the
matter between:
ROBERTSON WINERY (PTY) LTD
Applicant
and
CSAAWU
First respondent
List of persons whose names
appear
on Annexure “A”
Second and further respondents
Heard:
28 October 2016
Delivered
:
18 November 2016
Summary:
Application to hold trade union and its
office bearers in contempt of court. Court order granted to prevent
union, its members and
office bearers from acting unlawfully during
protected strike. Union officials participated in singing of song
constituting hate
speech in contravention of court order. Union also
promoted carrying of weapons. Union did not prevent strikers from
intimidating
replacement labour and preventing them from going to
work, but wilful non-compliance not proven in that instance. Contempt
proven
in respect of second element (promoting carrying of weapons)
and singing of song. Suspended fine imposed.
JUDGMENT
STEENKAMP
J
Introduction
[1]
The first respondent, CSAAWU (the
Commercial, Stevedoring, Agricultural and Allied Workers’
Union), called its members out
on strike after a wage dispute with
the applicant, Robertson Winery, had deadlocked. The Winery
recognises CSAAWU as the workers’
collective bargaining agent.
The strike is protected. It has also been long and acrimonious. At
the time of this judgment, it had
entered its twelfth week. Early on
in the strike, the Winery obtained an interdict in this Court
restraining the union, its members
and office bearers from engaging
in unlawful conduct in furtherance of the protected strike. It claims
that the respondents –
and in particular the union’s
strike committee – have acted in contempt of that court order.
It has applied for an
order holding a number of the union’s
office bearers in contempt; and for their incarceration or,
alternatively, for a fine
to be imposed on the union.
What
this case is not about
[2]
The strike and the events surrounding it
have attracted a great deal of media attention. CSAAWU has embarked
on a successful campaign
to draw international attention to work
practices and working conditions of farm workers supplying grapes to
the Winery. In that
context, it is perhaps important to set out, at
the outset, what this application is NOT about.
[3]
This
Court is not called upon to express any view about the working
conditions and working hours at the Winery or on the surrounding
farms in the Robertson area supplying grapes to the Winery. Nor is it
called upon to decide whether the current wages earned by
the workers
are fair, or indeed what is commonly referred to as a “living
wage”. It is common cause that the Winery
pays above the
prescribed sectoral minimum wage; but the union and the workers say
that is far from a fair wage. That is why they
are striking. It is
not the place of this Court to decide whether the Winery’s
current wage, the Union’s demands, or
the Winery’s
counter offer to those demands are fair. That is the arena of
collective bargaining and the site of the current
power play between
the parties. That power play is regulated by the Constitution and by
statute – in this case, the Labour
Relations Act.
[1]
CSAAWU has followed the procedures set out in s 64 of that Act. The
strike is protected, both by the Constitution and in terms
of the
LRA. The only question before this Court is whether the Union and of
certain of its members are in contempt of the earlier
court order. It
is not this Court’s place to decide on the merits of the wage
dispute, nor is it called upon to do so.
The
relief sought in this application
[4]
The Winery claims that the respondents
breached a final order granted by this Court [Coetzee AJ] on 25
August 2016. It says that
the order was not complied with in two
broad aspects:
4.1
Replacement labour was prevented from going
to work; and
4.2
agreed picketing rules were breached.
[5]
The Winery seeks an order holding a number
of individuals – CSAAWU office bearers and members of the
strike committee –
as well as the union itself in contempt.
Flowing from that, it seeks either an order committing those
individuals to jail or for
the union to pay a substantial fine, or
both.
[6]
In particular, the Winery asks for a final
order to declare the following individuals to be in contempt of the
court order:
6.1
Trevor Christians (General Secretary of
CSAAWU);
6.2
Karel Swart (Assistant General Secretary);
6.3
Deneco Dube (Robertson organiser and
spokesperson);
6.4
Melville Nokonya;
6.5
Marshalene Berdien;
6.6
Wendy Qhanqiso;
6.7
Jerome Hendriks;
6.8
Amanda Kamasa;
6.9
Ishmael Masolane; and
6.10
Adam Berdien.
Background
facts and court orders
[7]
CSAAWU called its members out on a
protected strike at the Winery on Wednesday 24 August 2016.
[8]
The Winery approached this Court for
interdictory relief on an urgent basis the next day, Thursday 25
August 2016. It came before
Coetzee AJ. CSAAWU opposed the
application. After some initial argument, the matter was adjourned
for further discussions between
the parties’ legal
representatives. They reached an agreement for a final order to be
granted in these terms:
“
1.
The respondents
[2]
are restrained from:
1.1
intimidating, harassing, threatening or in
any other way interfering with:
1.1.1
any employee of the applicant, whether such
employee is employed on a temporary, casual or permanent basis, who
wishes to work in
terms of his or her contract of employment;
1.1.2
any other person or persons involved in or
connected with the conduct of the applicant’s operations,
including but not restricted
to contracted workers employed for
purposes of replacement labour;
1.2
in any way preventing any of the persons
referred to in paragraph 1.1 above from gaining access to the
applicant’s premises
at 17 Voortrekker Road (main entrance),
McGregor Road (co-op entrance and motor gate) (hereafter ‘the
premises’);
1.3
in any way preventing any of the persons
referred to in 1.1 above from leaving the premises;
1.4
in any way interfering with or obstructing
the normal operation of the applicant’s business, including but
not restricted
to all vehicles entering or leaving the premises,
other than in accordance with the picketing rules once agreed or
established
by the CCMA;
1.5
in any way damaging or threatening the
damage any property of the applicant;
1.6
in any way hindering, hampering, preventing
or interfering with the loading, transportation and delivery of any
product of the applicant;
1.7
attending at the premises at any time save
for the purpose of presenting themselves for the execution of their
duties with the applicant
in accordance with their contracts of
employment;
1.8
being within 100 metres of the perimeter of
the premises for purposes other than those referred to in paragraph
1.7 or for purposes
other than the peaceful and orderly picketing at
the premises;
1.9
utilising weapons, including but not
limited to pangas, assegais, poles, sticks and bricks, in carrying
out their industrial action;
1.10
placing and/or burning tyres on the
applicant’s premises; and
1.11
obstructing all entrances, whether
pedestrian or vehicular, on and to the applicant’s premises.
2.
The first respondent [CSAAWU] is restrained from inciting,
instigating or promoting any unlawful conduct in contemplation,
furtherance or incitement of the strike.
3.
Paragraphs 1 and 2 shall operate as a final order as agreed between
the parties.
4.
The Sheriff is authorised and directed, and insofar as he or she may
require the assistance of a law enforcement authority, such
law
enforcement authority is authorised and directed, to ensure that the
individual respondents comply with the terms of this order.
5.
Service of this order shall be effected in the following manner:
5.1
By email and telefax on first respondent’s offices in
Bellville, Western Cape province;
5.2
By the Sheriff of the High Court, or by his deputy, by affixing
copies of the order at the
main entrances of the applicant’s
premises.
6.
There is no order as to costs.”
[9]
Picketing rules were agreed to by the
parties and issued by the CCMA on the same day, effective from 26
August. The agreed rules
confirmed that “the picketers must
conduct themselves in a peaceful and lawful manner and must be
unarmed.” It specified
that placards “will not reflect
derogatory language directed at Robertson Winery or any of its
employees or language inciting
hate speech.” The parties also
specifically agreed that striking union members would not:
“
threaten,
intimidate or assault any employee whatsoever who is not
participating in the strike, whether that employee is in the
full
time or temporary employ of Robertson Winery;
…
“…
be
in possession of any offensive weapon or dangerous implements
(including but not limited to sjamboks) …”
[10]
On 29 August – four days after it
agreed to the court order and to the picketing rules – CSAAWU
posted photographs on
its Facebook page of its striking members
outside the Winery’s premises brandishing sticks, sjamboks and
a golf club. The
union says that, although the photographs were
posted on its Facebook page after it had agreed to the court order
and the picketing
rules, the photographs were taken a day before, on
25 August.
[11]
On 31 August striking workers chanted a
song containing the words, “Dubula Reinette”. Translated
into English, it translates
to “shoot Reinette”. It is
common cause that they were referring to Reinette Jordaan, the
Winery’s human resources
manager. The following individuals who
are members of the strike committee participated in the chant:
11.1
Deneco Dube;
11.2
Melville Nokonya;
11.3
Wendy Qhanqiso;
11.4
Jerome Hendriks;
11.5
Marshalene Berdien; and
11.6
Amanda Kamase.
[12]
On 31 August the winery brought this to the
union’s attention and pointed out that it is in contravention
of the picketing
rules and the court order. The union requested a
meeting. The parties met on 31 August 2016 at 16:30. The union’s
attitude
was that “there is nothing wrong with the song”.
It nevertheless “took a decision to stop singing the song”
thereafter.
[13]
The facts above are common cause. The
Winery also alleges that the striking workers intimidated workers
employed as replacement
labour on a continuous basis and went so far
as to pull them out of taxis to prevent them from going to work. The
union denies
it. The Winery has put up a number of WhatsApp messages
and confirmatory affidavits from those replacement workers to
corroborate
its evidence.
[14]
On 8
October, the Winery brought an interim application to hold the
respondents in contempt of the final order granted by Coetzee
J on 25
August. It was opposed. The Court granted a rule
nisi
for the respondents to show cause on 14 October why a final order
should not be granted. The parties were given the opportunity
to file
further affidavits. On 14 October the application for final relief
came before Rabkin-Naicker J. She extended the rule
nisi
for
the parties to refer the underlying dispute to the CCMA in terms of s
150
[3]
of the LRA in order for it to attempt conciliation “in the
public interest” and to appoint a national team to assist
with
that process. Those efforts came to naught. The contempt application
then came before this Court for final determination again
on 28
October 2016.
Contempt:
the legal principles
[15]
The
legal principles with regard to contempt proceedings were usefully
and eloquently summarised by Cameron JA in
Fakie
NO v CCII Systems (Pty) Ltd
:
[4]
“
(a)
The civil contempt procedure is a valuable and important mechanism
for securing compliance with court orders, and survives
constitutional scrutiny in the form of a motion court application
adapted to constitutional requirements.
(b)
The respondent in such proceedings is not an ‘accused person’,
but is entitled to analogous protections as are appropriate
to motion
proceedings.
(c)
In particular, the applicant must prove the requisites of contempt
(the order; service or notice; non-compliance; and wilfulness
and
mala fides) beyond reasonable doubt.
(d)
But once the applicant has proved the order, service or notice, and
non-compliance, the respondent bears an evidential burden
in relation
to wilfulness and mala fides: should the respondent fail to advance
evidence that establishes a reasonable doubt as
to whether
non-compliance was wilful and mala fide, contempt will have been
established beyond reasonable doubt.
(e)
A declarator and other appropriate remedies remain available to a
civil applicant on proof on a balance of probabilities.
[16]
These
principles were restated by the Labour Appeal Court in
FAWU
v In2Food (Pty) Ltd.
[5]
In that judgment, turning got the liability of trade unions, that
Court said
[6]
:
“
The
principle upon which a juristic entity is held to perform acts is by
acting through its officials, agents or members, acting
within the
scope of a mandate from the juristic entity to persist in given
activity. What is required is proof that the strike
and the blockade
occurred in pursuance of a decision by the appellant or of an
agreement with its members to strike.
In
the case of a protected strike, the observance of the formalities by
a trade union in terms of section 64 of the LRA would establish
the
fact of the union’s complicity.
In the case of an unprotected strike the establishment of the fact of
union complicity is likely to be by inference.”
[17]
Court
orders are enforceable in the Labour Court by way of contempt
proceedings.
[7]
The
law applied to the proven facts
[18]
In this case, the court order is not
disputed – in fact, it was taken by agreement. It is also not
disputed that it was properly
served on the respondents. What remains
to be decided, is whether there was non-compliance; and if so, if it
was wilful and
mala fide
.
In that respect, once the applicant has proven non-compliance, the
respondents bear an evidential burden to establish reasonable
doubt
as to whether non-compliance was wilful and
mala
fide
.
[19]
Mr
Stelzner
,
for the Winery, argued that the respondents had breached the court
order in respect of three broad categories:
19.1
Intimidating replacement labour;
19.2
chanting a song (“dreunsang”)
that was aimed at threatening the HR manager, Reinette Jordaan; and
19.3
placing photographs on Facebook of the
striking workers carrying dangerous weapons.
Replacement
labour
[20]
The court order specifically deals with the
issue of replacement labour. It specifically restrains the strikers
from intimidating,
harassing or interfering with contracted workers
employed for the purpose of replacement labour.
[21]
Of
course, an interdict could not prevent peaceful picketing. The
Constitution guarantees the right to picket “peacefully
and
unarmed”.
[8]
And the Code of Good Practice on Picketing
[9]
specifically states:
“
The
purpose of the picket is to peacefully encourage non-striking
employees and members of the public to oppose a lockout or to
support
strikers involved in a protected strike. The nature of that support
can vary. It may be to encourage employees not to work
during the
strike or lockout. It may be to dissuade replacement labour from
working. It may also be to persuade members of the
public or other
employers and employees not to do business with the employer.”
“
The
picketers must conduct themselves in a peaceful, unarmed and lawful
manner. They may –
(a)
carry placards;
(b)
chant slogans; and
(c)
sing and dance.
Picketers
may not –
(a)
physically prevent members of the public,
including customers, other employees and service providers, from
gaining access to or
leaving the employer’s premises;
(b)
commit any action which may be unlawful,
including but not limited to any action which is, or maybe perceived
to be violent.”
[22]
The Union is specifically restrained from
inciting, instigating or promoting any unlawful conduct by its
members.
[23]
There is nothing unlawful about peacefully
persuading fellow workers to join the strike or dissuading others
from placing their
labour at the disposal of the employer as
replacement labour (colloquially referred to as ‘scabs’).
And the union may
use other means to make its strike as effective as
possible, including – as it has done in this case –
calling for
a boycott of the Winery’s product. What the union
and the strikers emphatically may not do, is to prevent those
replacement
workers by force or intimidation from going to work.
[24]
The
very specific allegations by replacement workers, set out in
affidavits and backed up by a vast number of contemporaneous WhatsApp
messages, were mostly met by bare denials on the papers. In a few
instances, the denials are backed up by positive allegations
that the
strikers were merely marching and using loud hailers to garner
support for the strike. In one instance, the respondents
admit
blocking a taxi but deny forcing the passengers out. Even though
these are motion proceedings governed by the rule in
Plascon-Evans
[10]
,
there can be no doubt that replacement labourers were forcefully
prevented from going to work at the Winery. The denials were,
on the
whole, so far-fetched or clearly untenable that the Court could
reject it on the papers.
[25]
The Winery has attached to its papers a
number of detailed WhatsApp messages received from non-striking
employees and replacement
labour over the period 26 to 31 August
2016. The names and company numbers have been redacted, but the
original confirmatory affidavits
containing those details were made
available to the court. From the type of language and peculiar style
of Afrikaans WhatsApp abbreviations
used, there can be little doubt
about their authenticity. They detail the following incidents:
25.1
Striking union members threatened and
prevented temporary workers from entering the transport vehicles at
various pickup points.
25.2
Temporary employees indicated that they
felt threatened and scared for their and their families’ safety
and rather returned
home.
25.3
Striking members waited for the temporary
workers at the pickup points and threatened them upon their returning
from work and told
them that, as long as they did not go to work,
they would not get hurt.
25.4
Temporary workers were chased from the
pickup points and were told that they should return home; and that,
if they try to go to
work, they would be hurt.
[26]
These are some examples of the WhatsApp
messages (spelling and grammar as in the original):
“
Di
mnse oz yti taxi ytghal by vgk Kerk”;
[11]
“
Hulle
kon niemand laai want die stakers laai mense uit”;
“
Di
fokn mense ry agter di taxi aan wl he ek mt inklim ni vgk kerk”;
“
Di
mense stan nu by di optel punte wt oz keer”;
“
Hulle
het os gedreig en gese o smut uit klim”;
“
Di
mense laat ons ni toe om di bussies te klim ni”;
“
Oz
is bang hle mk oz seer ds hkm oz huistoe gekom het “;
“
Ons
ht omgedraai wnt di mnse dreig ons”;
“Het gehoor by
di stakers dat hulle niemnd van more af in die keller toe gaan laat
nie”.
[27]
On 29 August the Winery communicated its
concerns to the union. It noted that the transport company, Wentzel
Vervoer, attempted
to transport 53 casual workers from Ashton and
attempted to gain access to the winery’s premises but were
denied access by
striking workers. It also conveyed to the union that
it had come to its attention that a strike meeting was held during
which union
members expressed the intention to prevent all casuals
from accessing the premises. The union responded by denying any
intimidation,
stating that its members were merely distributing
pamphlets and talking to those in the buses and taxis; and that “our
members
and supporters have meetings every morning and afternoon to
discuss the plans for the day and how to effectively advance the
struggle.”
[28]
A transport provider, Peter Wentzel, also
lodged a criminal complaint of intimidation with the SAPS. He stated
under oath:
“
Op
Vrydag 26 Augustus 2016 het ek Robertson Winery se werknemers probeer
vervoer vanaf 05h45 met die optelpunte soos ooreengekom
met Reinette
Jordaan. Ek en die werkers is elke keer gedreig en die werkers is
elke keer uit die kombi gehaal deur die stakers.”
And:
“
Op
Saterdag 27 Augustus 2016 was ek uitstedig. My broer, Jacques
Wentzel, woonagtig te Van Zylstraat 58, Robertson … het
aan my
gemeld dat die Unie mense met stakers voor sy deur kom staan het en
met ‘n ‘loud hailing’ toestel hom
en sy familie
geintimideer / gedreig het. Hy moes na die intimiderende stakers kom
ter wille van sy familie se veiligheid en meld
dat hy nie Robertson
Winery se werksmense ry nie.”
[29]
In response, the Union admits that it
“conducted a march” and passed Jacques Wentzel’s
house, and that its members
“mistakenly thought this was the
residence of Peter Wentzel.” They “called upon Peter
Wentzel to come out of
the house”; yet they deny any
intimidation.
[30]
The very act of calling the person who is
responsible for transporting non-strikers out of his house, had the
effect of, at the
very least, harassing him. That is in contravention
of the court order.
[31]
The union has simply denied that its
members were responsible for preventing replacement labourers and
other non-striking employees
from going to work. It has not made any
effort to convey to its members that they were not allowed to do so.
It appears that the
union does have control of its members, as is
evident from the fact that the singing of the song constituting hate
speech and the
carrying of arms have ceased; yet one searches in vain
for any attempt by the union to convey to its members that they may
not
threaten non-striking workers or prevent them from going to work.
“
Dubula
Reinette”
[32]
The
song containing the words, “Dubula Reinette” [i.e. “shoot
Reinette”] is a variation of the well-known
‘struggle
song’ containing the words, “Dubula iBhunu” [“shoot
the boers”]. That song has been
held to constitute hate speech
in
Afriforum
v Malema
.
[12]
And an incitement to kill does not enjoy constitutional protection,
as the SCA reiterated very recently in
Hotz
v UCT
[13]
:
“
Freedom
of speech must be robust and the ability to express hurt, pain and
anger is vital, if the voices of those who see themselves
as
oppressed or disempowered are to be heard. It was rightly said in
Mamabolo
[14]
that:
‘…
freedom to speak
one's mind is now an inherent quality of the type of society
contemplated by the Constitution as a whole and is
specifically
promoted by the freedoms of conscience, expression, assembly,
association and political participation protected by
ss 15 - 19 of
the Bill of Rights’.
But
in guaranteeing freedom of speech the Constitution also places limits
upon its exercise. Where it goes beyond a passionate expression
of
feelings and views and becomes the advocacy of hatred based on race
or ethnicity and constituting incitement to cause harm,
it oversteps
those limits and loses its constitutional protection. In
Islamic
Unity Convention
[15]
Langa CJ explained the reason for this:
‘
Section
16(2) therefore defines the boundaries beyond which the right to
freedom of expression does not extend. In that sense, the
subsection
is definitional. Implicit in its provisions is an acknowledgment that
certain expression does not deserve constitutional
protection
because, among other things, it has the potential to impinge
adversely on the dignity of others and cause harm. Our
Constitution
is founded on the principles of dignity, equal worth and freedom, and
these objectives should be given effect to.’
A
court should not be hasty to conclude that because language is angry
in tone or conveys hostility it is therefore to be characterised
as
hate speech, even if it has overtones of race or ethnicity. The
message on Mr Magida’s T-shirt said unequivocally to anyone
who
was more than a metre or two away that they should kill all whites.
The reaction to that message by people who saw it,
as communicated to
Mr Ganger, was that this was an incitement to violence against white
people. The fact that Mr Magida sought
to explain away the slogan and
suggest that it said something other than what it clearly appeared to
say, is itself a clear indication
that he recognised its racist and
hostile nature. Whether it in fact bore a tiny letter ‘s’
before the word ‘KILL’
is neither here nor there. The
vast majority of people who saw it would not have ventured closer to
ascertain whether, imperceptibly
to normal eyesight, the message was
something other than it appeared to be. They would have taken it at
face value as a message
being conveyed by the wearer that all white
people should be killed. There was no context that would have served
to ameliorate
that message. It was advocacy of hatred based on race
alone and it constituted incitement to harm whites. It was not speech
protected
by s 16(1) of the Constitution.”
[33]
Ms
Harvey
argued that, nevertheless, it must be borne in mind that the workers
stopped singing the song after the Winery had complained about
it.
But the fact remains that it clearly transgressed the court order and
the picketing rules specifying that the strikers would
not
intimidate, harass or threaten any Winery employee; and that placards
“will not reflect derogatory language directed
at Robertson
Winery or any of its employees or language inciting hate speech.”
They must have been aware that language of
this kind, even in a song,
would constitute hate speech; and in any event, it was clearly aimed
at intimidating, harassing or threatening
the HR manager. It also
used language inciting hate speech in contravention of the picketing
rules.
Carrying
of weapons
[34]
It is common cause that the union placed
photographs on its Facebook page well after the court order had been
granted, depicting
its members brandishing sjamboks, sticks and a
golf club – actions that are specifically prohibited in the
picketing rules.
[35]
In its defence, Ms
Harvey
argued that, although the photographs
were posted on Facebook after the court order had been granted, the
actions that they depict
took place the day before the order was
granted. In those circumstances, she argued, the Winery has not
proven that the workers
carrying those weapons contravened the court
order. There is no evidence that they continued doing so after the
order was granted.
[36]
But, as Mr
Stelzner
pointed out, the act by the union of placing the photographs on
Facebook after the court order had been granted, does show
non-compliance
with the order. The union is “restrained from
inciting, instigating or promoting any unlawful conduct in
contemplation, furtherance
or incitement of the strike.” The
carrying of weapons such as sjamboks was unlawful and specifically
prohibited by the picketing
rules. Yet the union placed undated
photographs of those very actions on its Facebook site on 29 August,
four days after the order
had been granted and after it had agreed to
the picketing rules. That cannot be anything but “inciting”
or “promoting”
the actions of its members.
Was
non-compliance proven?
[37]
The question whether the Winery has proven
non-compliance of the court order on a balance of probabilities will
be discussed with
regard to each of the categories complained of.
[38]
Apart from the song aimed at the HR
manager, no individual strikers or union officials have been
identified. Instead, the Winery
seeks to prove non-compliance by the
union.
Replacement
labour
[39]
The union as well as its members were
restrained from intimidating, harassing, threatening or in any other
way interfering with
non-striking workers and replacement labour. It
was also restrained from preventing any such workers from gaining
access to the
Winery’s premises; and from inciting, instigating
or promoting any unlawful conduct in contemplation or furtherance of
the
strike.
[40]
The union has been actively involved in
promoting the strike. It has done so in a proper and peaceful manner
by participating in
the strike committee meetings, the CCMA
negotiations in terms of section 150 of the LRA, and the meeting to
agree picketing rules.
But by the same token, it has associated
itself with the actions of its members, other than denying that they
had acted unlawfully.
That much is clear from its public actions such
as placing photographs of armed strikers on its Facebook page after
the court order
had been granted. It has taken no positive steps to
ensure that its members would not harass non- striking workers
transport to
take them to work.
[41]
It is
tempting to accept the argument that, through its inaction, the union
has breached the court order with regard to harassing
or threatening
replacement workers. As the LAC observed in
In2Food
[16]
:
“
In
the case of a protected strike, the observance of the formalities by
a trade union in terms of section 64 of the LRA would establish
the
fact of the union’s complicity.”
[42]
But
in the same case,
[17]
the LAC set out the difficulty of holding the union itself liable:
“
The
fact that a trade union can be liable for the acts of its members
does not assist in deciding whether the trade union, in its
own
right, has breached a court order. This distinction was also not
addressed in the judgment of the court a quo. The upshot is
that when
there is evidence to implicate the union vicariously in the unlawful
acts of its members, there may well be an action
available to the
respondent for redress, but the liability of the appellant for
contempt of a court order is strictly determined
by reference to what
the court ordered the trade union, itself, to do and the presentation
of evidence that it did not do as it
was told.
…
Bearing
in mind the quasi-criminal sanction for a breach, it is to be
expected from the text of an order that the party interdicted
is left
in no reasonable doubt as to what exactly is to be done or refrained
from. The formulation of the order against the appellant
is vague,
having not been insightfully framed with logistics of proof of breach
and of effective execution in mind. An interdict
order against a
union should prudently state plainly what action is mandatory, and
not elide the union’s obligations with
that of its members.
…
In
other cases where contempt proceedings have been prosecuted that
degree of clarity in the orders has been the point of departure
for
the enquiries. The point is illustrated in
Security Services
Employers’ Organisation and Others v SATAWU
(2007) 28
ILJ
1134 (LC). The union was directed by a court order to ensure that
copies of an order interdicting further strike action were brought
to
the attention of its members by affixing copies at various places and
to maintain such notices until the workers all resumed
work. The
union did not do so. Thus a breach was proven. Upon that platform the
court addressed the reasons why there was a breach
and unsatisfied
with the explanation concluded that a contempt had occurred and fined
the union R500,000, suspended on certain
conditions. The liability of
the union was based on its direct breach of obligations imposed upon
it. A further example is that
of
Supreme Spring, a Division on Met
Industrial v MEWUSA
(J 2067/2010) where the relief granted in the
interdict specifically instructed the union to take concrete action,
ie to refrain
from inciting the striking employees from participation
in the strike. The union official responsible thought it appropriate
to
approach the Management and try to negotiate a cessation of the
strike in return for the employer abandoning the court proceedings.
The court held that this behaviour was inconsistent with the order
directing the union not to encourage or incite the strikers
to
persist, held the union in contempt, imposing a fine of R100,000 on
the union and imposing suspended terms of imprisonment on
named union
officials. At [18] – [20] it was reasoned by Van Niekerk J as
follows:
‘
[18]
In my view, it was incumbent on the union delegation, given the terms
of the interim order, and in
particular the interim interdict against
encouraging or inciting the striking employees from continuing their
strike, to have unequivocally
advised their members to return to
work. To use the opportunity of the meeting with management to
attempt to negotiate conditions
attaching to a return to work was a
wilful and mala fide defiance of the order.’
[43]
In this case, the Winery has not shown that
the union actively “incited, encouraged or instigated”
the harassment or
intimidation of replacement workers. Nor has it
been able to identify any of the individual perpetrators. The
inaction of the union
and the absence of any evidence that it
actively prevented its members from harassing replacement labour is
to be decried; but
that inaction does not, in my view, translate to a
breach of the court order. The court did not order the union to take
any active
steps in this regard, but merely to refrain from inciting
or instigating such unlawful actions. The Winery has not proven
non-compliance
of that part of the order.
Dubula
Reinette
[44]
It is common cause that the strikers sang
the song, constituting hate speech, after the court order and
picketing rules had been
agreed to. The six members of the union who
participated in that incident were specifically identified. They have
not denied the
fact that they participated in the singing of the
song. Non-compliance has been proven.
Carrying
of arms
[45]
In the case of the Facebook photos and
carrying of weapons: the Winery has proven non-compliance by the
Union, but not by individual
workers. By placing the undated
photographs on its Facebook site after the court order and picketing
rules had been agreed to,
the union itself acted in contempt of the
court order by inciting, instigating or promoting the carrying of
weapons.
Was
the non-compliance wilful and mala fide?
[46]
The respondents bear a reverse onus to show
that their non-compliance was not wilful and mala fide.
Replacement
labour
[47]
The respondents’ bare denial of any
harassment or intimidation of replacement workers is not convincing.
The authenticity
of the WhatsApp messages cannot be doubted. But it
has not been shown beyond reasonable doubt that the union made common
cause
with the (unidentified) perpetrators. It has not been shown
that the non-compliance with the court order in this instance was
wilful
and mala fide with regard to the trade union; and the
individual perpetrators have not been identified.
Dubula
Reinette
[48]
The Winery took the singing of the song up
with the strike committee. After some initial reluctance to admit to
any wrongdoing,
the matter was resolved. The union gave the assurance
that the strikers would stop singing the song. They did. The strike
committee
did exactly what it should do, namely to resolve matters
peacefully and to discipline its members.
[49]
Nevertheless, the Winery has proven
non-compliance on this aspect; and the union has not cast reasonable
doubt on the question whether
it was wilful or mala fide. On the
other hand, once the non-compliance had been brought to its
attention, the Union took bona fide
steps to prevent it from
recurring; but the fact remains that the identified individuals acted
in contempt of the court order.
[50]
I will deal with this aspect further under
the heading of the appropriate penalty.
Carrying
arms
[51]
The Winery has proven that, by placing the
photographs of its members carrying sjamboks and other weapons on its
Facebook page,
the union has not complied with the court order
restraining it from inciting or promoting those actions. And the
union has not
shown that it was not wilful or mala fide. It did not
attempt to remove the photographs; nor did it make any effort to put
it in
context, for example by adding a fresh post to point out that
the photographs had been taken before the court order and picketing
rules had been agreed to; that they, in fact depicted unlawful
conduct; and calling upon its members not to repeat it.
Discussion
[52]
In
In2Food
[18]
the LAC reiterated that:
“
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,
as
evidenced by the decision in
FAWU V
Ngcobo NO
2013 (12) BCLR 1343
(CC)
where, as it happens, the very appellant in this case, was held
liable to its own members for failure to prosecute the members’
interests properly in litigation. However, there is no room, upon
that platform alone, to build a case that the appellant, in its
own
right, in this instance, breached this order of court.
The
sentiments expressed by the court
a quo
which are cited above
have been rightly described by Alan Rycroft as a “…significant
moment of judicial resolve”.
(Rycroft, A “Being held in
contempt for non-compliance with a court interdict:
In2food (Pty)
Ltd v FAWU
” (2013) 34
ILJ
2499). Indeed, the
sentiments deserve endorsement, and are adopted by this Court.”
[53]
The “sentiments expressed by the
court
a quo”
and endorsed by the LAC were these, described by the LAC as “a
significant policy statement”:
“‘
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. This in a context where the
Labour
Relations Act 66 of 1995
, which has now been in existence for some 17
years and of which trade unions, their office-bearers and their
members are well aware,
makes it extremely easy to go on a protected
strike, as it should be in a context where the right to strike is a
constitutionally
protected right.
However,
that right is not without limitations. Firstly, the proper procedures
set out in
s 64
of the LRA should be followed. And secondly, it must
be in line with the constitutional right to assemble and to picket
peacefully
and unarmed, as entrenched in
s 17
of the Bill of Rights.
Very simply, there is no justification for the type of violent action
that the respondents have engaged
in in this instance. And
alarmingly, on the evidence before me, the union and its officials
have not taken sufficient steps to
dissuade and prevent their members
from continuing with their violent and unlawful actions. Instead,
having confirmed that it represents
and acts on behalf of its
members, the union's organizer, Mr Ditjoe, merely stated that the
unprotected strike was 'as a result
of your refusal to bargain. We
will not be held responsible nor our members held liable for such
action'. These actions undermine
the very essence of disciplined
collective bargaining and the very substructure of our labour
relations regime.”
[54]
It is so that the actions of CSAAWU and its
members in this case have not translated into any significant
violence. The strikers
did carry arms, but stopped; they did threaten
Ms Jordaan, but stopped; and whilst they did physically remove scabs
from their
transport and did prevent them from going to work, no
significant injuries were reported or alleged in the evidence before
me.
It must also be borne in mind that the strike is protected and
that CSAAWU did follow the procedures set out in the LRA when calling
its members out on strike. The Union must also be commended for
agreeing, with the Winery, to picketing rules under the auspices
of
the CCMA within a day of going on strike; and the
s 150
process is
still ongoing with the assistance of the CCMA. These actions are not
indicative of an intransigent union taking a devil
may care attitude
to the actions of its members.
[55]
Nevertheless, the breach of a court order
is always serious. It undermines the rule of law. And in the context
of collective bargaining,
it undermines the very nature of the
Constitutional rights to strike and to picket peacefully and unarmed.
[56]
The
implications of the failure to obey interdicts and how that
undermines the rule of law was discussed in a fairly recent article
by Anton Myburgh SC.
[19]
He cited Van Niekerk J’s comments at the 2012 SASLAW national
conference:
“
The
first and fundamental concern is one that acknowledges that what may
be at issue is a breakdown of the rule of law, especially
where
orders are issued and then blatantly disregarded. It is not uncommon
on return dates to be told that when the order granted
by the court
was served, the recipients of the order refused to accept them, or
threw them to the ground and trampled on them.
At its most basic
level, this is demonstrative of a rejection of the rule of law, and
contempt for its institutions.”
[57]
Again, I must stress that in this case,
CSAAWU did not reject the granting of the court order; indeed, it was
granted by agreement.
Yet the union’s leadership and its
members continued to breach at least aspects of the order. Even if
those breaches were
not as major or as violent as is, regrettably,
the case in many other strike situations, to leave it unpunished
would be to countenance
a culture of impunity and it would further
undermine the rule of law.
[58]
As
Conradie JA commented in
Steve’s
Spar
[20]
:
“
It
is becoming distressingly obvious that court orders are, by employers
and employees alike, not invariably treated with the respect
they
ought to command … Obedience to a court order is foundational
to a state based on the rule of law.”
[59]
Davis
JA expressed similar sentiments in
North
West Star
:
[21]
“
Upholding
the submission made by counsel would make a mockery of the
Constitution and the rule of law that forms part of the foundations
of our constitutional democracy. It would be a licence for people to
disregard orders of courts simply because they do not agree
with the
court that such orders should have been issued.
[22]
A society that would allow such would in no time be a society of
chaos and lawlessness … If we want to deepen our democracy,
promote the rule of law, discourage self-help and encourage those who
have disputes to take them to the courts of the land and
not to seek
to resolve them through physical fights or violence, the whole
society must frown upon anyone who disobeys an order
of court or who,
either by word or deed, encourages or incites others to disobey an
order of court.”
[60]
Most
recently, in
Hotz
v UCT
[23]
,
the
SCA reminded us:
“
Protest
action is not itself unlawful. As pointed out by Skweyiya J in the
passage already quoted from
Pilane
the right to protest against injustice is one that is protected under
our Constitution, not only specifically in section 17, by
way of the
right to assemble, demonstrate and present petitions, but also by
other constitutionally protected rights, such as the
right of freedom
of opinion (s 15(1)); the right of freedom of expression (s 16(1));
the right of freedom of association (s 18)
and the right to make
political choices and campaign for a political cause (s 19(1)). But
the mode of exercise of those rights
is also the subject of
constitutional regulation. Thus the right of freedom of speech does
not extend to the advocacy of hatred
that is based on race or
ethnicity and that constitutes incitement to cause harm (s 16(2)(c)).
The
right of demonstration is to be exercised peacefully and unarmed (s
17). And all rights are to be exercised in a manner that
respects and
protects the foundational value of human dignity of other people (s
10) and the rights other people enjoy under the
Constitution.
In a democracy the recognition of rights vested in one person or
group necessitates the recognition of the rights of other people
and
groups and people must recognise this when exercising their own
constitutional rights. As Mogoeng CJ said in
SATAWU
v Garvis
[24]
,
‘every right must be exercised with due regard to the rights of
others’. Finally the fact that South Africa
is a society
founded on the rule of law demands that the right is exercised in a
manner that respects the law.
This
court had occasion to deal with the right to demonstrate in
SATAWU
v Garvis
.
[25]
It said:
‘
Our
Constitution saw South Africa making a clean break with the past. The
Constitution is focused on ensuring human dignity, the
achievement of
equality and the advancement of human rights and freedoms. It is
calculated to ensure accountability, responsiveness
and openness.
Public demonstrations and marches are a regular feature of present
day South Africa. I accept that assemblies, pickets,
marches and
demonstrations are an essential feature of a democratic society and
that they are essential instruments of dialogue
in society. The
[Regulation of Gatherings] Act was designed to ensure that public
protests and demonstrations are confined within
legally recognised
limits with due regard for the rights of others.
I
agree with the court below that the rights set out in s 17 of the
Constitution, namely, the right to assemble and demonstrate,
are not
implicated because persons engaging in those activities have the
right to do so only if they are peaceful and unarmed.
It is that kind
of demonstration and assembly that is protected. Causing and
participating in riots are the antithesis of constitutional
values.
Liability in terms of s 11 follows on the unlawful behaviour of those
participating in a march. The court below rightly
had regard to
similar wording in the Constitution of the United States, where
people are given the right to assemble peacefully.
Such provisions in
constitutions such as ours are deliberate. They preclude challenges
to statutes that restrict unlawful behaviour
in relation to
gatherings and demonstrations that impinge on the rights of others.”
Conclusion
[61]
It has not been proven beyond a reasonable
doubt that the Union or any identified individual respondents are in
contempt of the
order preventing them from harassing, threatening or
interfering with contracted workers employed for purposes of
replacement labour.
[62]
The union is in contempt of the court order
insofar as it instigated or promoted the carrying of weapons.
[63]
The following individual respondents are
found to be in contempt of the court order in respect of the singing
of the song, “Dubula
Reinette”:
63.1
Deneco Dube;
63.2
Melville Nokonya;
63.3
Wendy Qhanqiso;
63.4
Jerome Hendriks;
63.5
Marshalene
Berdien; and
63.6
Amanda
Kamase.
The
appropriate remedy
[64]
Having found that the union and the six
identified members of the strike committee are in contempt of the
court order to the limited
extent discussed, the remaining question
is what the appropriate remedy or punishment will be. And although
this court is loath
to use the term “punishment” in a
collective bargaining and broader labour law context, contempt
proceedings, albeit
civil, do envisage remedies akin to criminal
punishment.
[65]
In
Ram
Transport
[26]
Van Niekerk J sounded a note of warning:
“
This
court is always open to those who seek the protection of the right to
strike. But those who commit acts of criminal and other
misconduct
during the course of strike action in breach of an order of this
court must accept in future to be subjected to the
severest penalties
that this court is entitled to impose.”
[66]
This is not a case where the extent of the
contempt calls for “the severest penalties that this court is
entitled to impose”.
But impose a penalty it must.
[67]
I take the following mitigating factors
into account:
67.1
Once the issue had been discussed with the
strike committee, the strikers stopped singing the song directed at
the HR manager that
constituted hate speech.
67.2
Apart from posting the photographs of armed
strikers on Facebook after the court order had been granted, there
were no further incidents
of the strikers arming themselves.
67.3
The incidents of preventing replacement
labour from boarding transport and going to work also ceased a few
days after the order
had been granted; and although the union should
have taken active steps to stop such incidents, it has not been
proven that it
actively encouraged it.
67.4
Apart from these incidents, the strike has
been peaceful.
[68]
On the other hand, the fact that these
breaches did occur, cannot be ignored. A penalty should be imposed,
but I do not consider
either direct imprisonment or a fine to be paid
immediately by the union to be justified. The first aim of the court
order was
to ensure compliance; that it achieved after the initial
breaches. Further non-compliance can be prevented, in my view, with a
suspended penalty imposed on the union to prevent further breaches.
[69]
In respect of the trade union itself, it
has been proven that it was in wilful contempt in that it did not –
at least initially
– prevent or dissuade its members from
continuing with unlawful actions, such as carrying arms. A suspended
fine would, in
my view, cause it to act with more resolve in the
future to discipline its members and to prevent similar actions. I do
not consider
a fine as high as the R500 000 that Mr
Stelzner
suggested to be justified. CSAAWU is a small trade union that has
only recently started organising in this sector. It should be
encouraged to represent its members to the best of its ability in a
peaceful and disciplined fashion. In my mind, a suspended fine
of R50
000 should achieve that objective.
[70]
In
Pikitup
[27]
Lagrange J imposed a fine of R80 000 on the union in these
circumstances:
“
The
union as an organisation must bear primary responsibility for the
failure to prevent its officials from acting contrary to paragraph
2.6 of the interim order and any penalty should also be designed to
deter a repetition of such conduct in what has been a long
and drawn
out conflict between Pikitup, the SAMWU members it employs and SAMWU
itself. Mathe’s omission to correct the flagrant
breach of the
order by Mohale is also deserving of severe censure. In determining
an appropriate penalty, I am also mindful of
the scale of the
disruption caused by the unprotected strike action in which SAMWU
claimed 4000 members were involved. However,
the period in respect of
which the findings of contempt were made ended on 3 December 2015
which has inclined me to impose much
lower fines than would probably
have been the case if the period of continued disruption after the
confirmation of order was also
under consideration.”
[71]
In
this case, I further take into account that the strike was protected;
and that, apart from the incidents outlined above, it was
peaceful
and disciplined. That is why I consider not only a relatively light
fine, but a suspended one, to be appropriate. As Rycroft
[28]
commented, citing the interpretation of ILO Convention 87 by the
committee of experts:
“
The
principles of freedom of association do not shelter criminal acts
committed during strikes. However, penal sanctions should
be imposed
only for the violation of strike prohibitions which are themselves in
conformity with the requirements of freedom of
association. All
penalties in respect of illegal actions linked to strikes should be
proportionate to the offence…”
[72]
With regard to individual members, the
Winery has only been able to identify certain individuals who
breached the court order, such
as singing the song, “Dubula
Reinette”. It is unfortunate that others who may have committed
more serious acts –
specifically by forcibly removing scabs
from taxis and other transport – will get off scot free. Yet it
will serve little
purpose to sentence those who have been identified
to direct imprisonment; nor is it justified in this case. Although
the members
of the strike committee who sang the song constituting
hate speech aimed at the HR manager were unwilling to accept that
they had
done anything wrong, they ceased after hearing management’s
view and after the fact that they were breaching the court order
and
the picketing rules had been explained to them. A punitive order will
not, in my view, serve any purpose: the purpose of compliance
has
already been served.
[73]
The members of the strike committee and the
union leadership have an important and ongoing role to play in the
negotiations between
the parties that are continuing. And in the case
where members of the strike committee actively participated in the
breach of the
court order by singing the song aimed at the HR
manager, they corrected their behaviour – albeit reluctantly –
once
the Winery had brought it to their attention. I do not consider
any prison sentence, direct or suspended, against any of the
individuals
to be appropriate.
Costs
[74]
With regard to costs, I take into account
that there is an ongoing relationship between the parties. CSAAWU is
the recognised bargaining
agent at the Winery. The striking workers
are still employed by the Winery. More importantly, the strike is
ongoing. So are the
wage negotiations and the conciliation process
under the auspices of the CCMA in terms of s 150 of the LRA. These
fragile relationships
may be undermined by an adverse costs order at
this stage, especially in the light of my findings that the breaches
of the court
order were not serious enough to warrant a harsher
penalty.
Order
[75]
I therefore make the following order:
75.1
It is declared that the first respondent,
CSAAWU, is in contempt of court.
75.2
The six respondents named in paragraphs 11
and 63 are declared to be in contempt of court to the extent
discussed.
75.3
The first respondent, CSAAWU, is ordered to
pay a fine of R50 000, 00 (fifty thousand Rand), which is suspended
for a period of
12 months from the date of this order on condition
the Union is not found guilty of contempt of any order of this Court
during
that time.
75.4
No penalty is imposed on the individual
respondents.
75.5
There is no order as to costs.
_______________________
Anton
Steenkamp
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANT:
Robert Stelzner
SC
Instructed
by:
Basson Blackburn
Inc.
RESPONDENTS:
Suzanna Harvey
Instructed
by:
MacGregor Erasmus.
[1]
Act 66 of 1995.
[2]
[2]
i.e CSAAWU and the striking workers, listed in Annexure “A”
to the court order.
[3]
That section reads: “
150.
Commission may appoint commissioner to conciliate in public
interest
.—(1)
Despite any provision to the contrary in this Act, the director may
appoint one or more commissioners who must
attempt to resolve the
dispute through conciliation, whether or not that dispute has been
referred to the Commission or a bargaining
council—
(a)
with the consent of the parties; or
(b)
in the absence of consent by the parties, if the director believes
it is in the public interest to do so.”
[4]
[2006] ZASCA 52
;
2006 (4) SA 326
(SCA) para [42]. See also
Orthocraft
(Pty) Ltd t/a Advanced Hair Studios v Musindo
(2016)
37
ILJ
1192 (LC).
[5]
(2014) 35
ILJ
2767
(LAC).
[6]
Para [9].
[7]
LRA s 163.
[8]
Constitution of the Republic of South Africa s 17. Ironically, one
of the Winery’s ranges is named Constitution Road in
celebration of the Constitution.
[9]
Published in GN 765 of 1998, GG 18887 of 15 May 1998, Items 3(1) and
6(6) and (7).
[10]
Plascon-Evans Paints Ltd v
Van Riebeeck Paints (Pty) Ltd
1984
(3) SA 623 (A).
[11]
i.e. “the people took us out of the taxi at VGK church”,
the church being one of the pick-up points.
[12]
2011 (6) SA 240 (EqC).
[13]
[2016] ZASCA 159
(20 October 2016) paras [67] – [68].
[14]
S v Mamabolo
[2001] ZACC 17
;
2001
(3) SA 409
(CC) para [28];
The
Citizen v McBride
2011 (4)
SA 191
(CC) paras [99] – [100].
[15]
Islamic Unity Convention v
Independent Broadcasting Authority
[2002] ZACC 3
;
2002 (4) SA 294
(CC) para [32].
[16]
Above para [9].
[17]
FAWU v In2Food
(2014)
34
ILJ
2767 (LAC) para [12] – [14].
[18]
FAWU v In2Food (Pty) Ltd
(2014) 35
ILJ
2767 (LAC) paras [18] – [19].
[19]
Myburgh SC, “The failure to obey interdicts prohibiting
strikes and violence: the implications for labour law and the rule
of law”,
Contemporary
Labour Law
Vol 23 No 1
(August 2013).
[20]
Modise & others v
Steve’s Spar Blackheath
(2000) 21
ILJ
519
(LAC) para [120], also cited by Myburgh SC.
[21]
North West Star (Pty) Ltd v
Serobatse
(2005) 26
ILJ
56 (LAC) para [17].
[22]
Again, I hasten to add that, in this case, CSAAWU did agree to the
court order; but the principles set out by Davis JA remain
applicable.
[23]
2016 ZASCA 159
(20 October 2016) paras [62] – [63] (my
underlining).
[24]
2013 (1) SA 83
(CC) para [68].
[25]
2011 (6) SA 382
(SCA) paras [47] – [49].
[26]
Ram Transport (Pty) Ltd v
SATAWU
(2011) 32
ILJ
1722 (LAC) para [9].
[27]
Pikitup
v SAMWU
(2016)
37
ILJ
1710 (LC).
[28]
Alan Rycroft, “Being held in contempt for non-compliance with
a court interdict:
In2Food
v FAWU
(2013) 34
ILJ
2499.