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[2016] ZALCPE 10
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Nkonkobe Local Municipality v South African Municipal Workers Union and Others (P421/2015) [2016] ZALCPE 10 (5 April 2016)
Of
interest to other judges
THE
LABOUR COURT OF SOUTH AFRICA
HELD
AT PORT ELIZABETH
C
ase
no: P421/2015
In
the matter between:
NKONKOBE LOCAL
MUNCIPALITY
First Applicant
and
SOUTH
AFRICAN MUNICIPAL WORKERS UNION
First
Respondent
INDEPENDENT
MUNICIPAL AND ALLIED TRADE UNION
Second Respondent
THE INDIVIDUALS
LISTED IN ANNEXURE “A” TO THE NOTICE OF MOTION
Third Respondent
Heard
:
12 February 2016
Delivered
:
05 April 2016
Summary:
(Interdict – unprotected strike and other
misconduct – opposition vexatious and frivolous – costs –
enforcement
of court orders by SAPS)
JUDGMENT
LAGRANGE
J
Introduction
[1]
In December last year, an interim order was
granted prohibiting the individual members of the two unions from
participating in certain
unprotected strike action and acts of
intimidation, harassment, assault or unlawful interference with other
employees, persons
connected with the municipality’s
operations. The only portion of the order directly concerning the
union required it to
communicate to their members their obligation to
stop their participation in unprotected strike action and unlawful
conduct and
to take reasonable steps to ensure their members complied
with the interdict. The interim order was extended pending the
handing
down of a final order in this matter.
[2]
An answering affidavit was deposed to by
the provincial secretary of the first respondent, SAMWU, before the
return day and the
applicant filed a replying affidavit. IMATU did
not oppose the relief sought. The answering affidavit appeared to
have been filed
solely on behalf of the office bearers of the union.
Before addressing the factual averments in the founding affidavit,
SAMWU raised
a number of issues contesting the appropriateness of the
type of relief granted. In the answering affidavit, the union raised
in
limine objections,
inter-alia
,
to the precision of the pleadings, whether the founding affidavit
described a cause of action and the lack of necessity of authorising
the South African Police Services to enforce the order if it was not
complied with.
[3]
I
do not intend to repeat the factual averments in the founding
affidavit save to state that they contained sufficient detail to
lay
a proper basis for the conclusion that the individual respondents had
embarked on unprotected strike action and that the strike
action was
accompanied by other acts of misconduct some of which were criminal
in nature. There was also sufficient detail for
anyone who wished to
contradict what was stated in the founding affidavit to know what
they had to respond to. It is true
that the South Africa Police
Services do not require this court’s authority to address
criminal acts, but it is not true
they cannot be required to assist
in the enforcement of civil court orders.
[1]
In the circumstances, it was not inappropriate to affirm their
authority to enforce the order, which was broader than merely
curtailing
criminal conduct.
[4]
In dealing with the portion of the interim
order compelling the union to take certain steps, SAMWU disputes the
necessity of such
relief in the following terms:
“
Again
prayer number 2.4 on the same interim order this prayer need also not
to be enforced by court as it is implemented on daily
basis on
meetings, workshops, and Congress that members must not engage with
unprotected strikes and as the South African municipal
workers union
we have got our own code of conduct and ethics as a union wearing the
union must be presumed to exercise its autonomy
as the organised
labour any interference by any tribunal will be unconstitutional see
section 23(4)(a) of the South African
Constitution act 108/1996 that
every trade union has a right to determine the its own administration
programs and activities so
in the circumstance all these prayers are
imperative outside the ambience of law and need this application to
be dismissed with
costs “
(
sic)
[5]
Having attacked the validity of the form of
relief granted on an interim basis on this and other grounds, which I
do not do need
to address, the deponent purports to address the
factual averments of the applicant. Most of his response consists of
bald denials
and sweeping contemptuous rejections of the averments in
the founding affidavit, without providing any contrary factual
details.
In the replying affidavit of the applicant, deposed to by
the acting municipal manager of the local authority, the ability of
the
provincial secretary to depose to any of the factual averments
based on his personal knowledge is directly challenged. The applicant
acknowledges that in the affidavit, the provincial secretary admitted
to placing some reliance on “external sources”,
which he
never identified, but points out that the provincial secretary is
based in Port Elizabeth and did not participate in any
of the
meetings referred to in the founding affidavit nor was he present at
any of the events described in the founding affidavit.
[6]
What is also glaringly absent from the
answering affidavit is any evidence that SAMWU complied with
paragraph 2.4 of the interim
order. In other words, the union appears
to have adopted the view that it did not even need to explain to the
court if it has complied
with the provisions of that part of the
order which related to it. Those obligations were supposed to have
been performed once
the interim order was issued. Judging from the
objection to the nature of that relief, it seems the union adopted
the view that
the court was merely a tribunal which had no right to
tell it what to do when it came to matters regarding its internal
communications
to members.
[7]
Thus, the union is approaching the court to
discharge the interim ruling at least in part on the basis that the
court had no power
to order the union to communicate to its members
that they should stop participating in unprotected action and
unlawful conduct
or to order it to take reasonable steps to ensure
its members did comply. In opposing final relief, SAMWU neglects to
show that
it had nonetheless complied with the interim order in so
far as its obligations were concerned. On the face of it, the union’s
response coupled with a failure to account for its actions in
relation to paragraph 2.4 of the order strongly suggests disdain
for
the court’s authority.
[8]
What is even more surprising is that the
union was assisted by an attorney who ought to have known better than
to contest the authority
of the court to order the kind of relief set
out in paragraph 2.4 of the order on the spurious basis that it did.
[9]
As to the merits of granting a final order,
the bald denials of the provincial secretary to events he had no
personal knowledge
of and in the absence of any confirmatory
affidavits by anyone who could attest otherwise means that the union
has not set up any
factual basis why the court should come to a
different conclusion than the court did in granting the interim order
in relation
to the unprotected nature of the strike and the
occurrence of other unlawful conduct by the individual respondents.
In passing,
I note that nowhere in the answering affidavit does the
deponent say that SAMWU is opposing a final order both in its own
right
and on behalf of the individual respondents.
[10]
The applicant in reply notes that the
underlying dispute which concerned a demand for payment of workers
who embarked on a previous
strike for the time they were on strike
has still not been resolved and has a concern that if the order is
discharged, the unlawful
strike action and related misconduct might
recur. Under these circumstances and given the nature of the union’s
response,
it is appropriate to confirm the rule.
[11]
On the question of costs, the union’s
opposition was without merit and its response on the facts did not
even rely on anyone
with personal knowledge of the events in
question. There was ample time between the interim order being
granted and filing the
answering affidavit for the union to have
obtained someone with first-hand knowledge of events to depose to
them. In the circumstances,
the union’s opposition was
frivolous and vexatious and an appropriate cost order should be made.
Order
[12]
The rule issued on 17 December 2015 by
Whicher J, is confirmed.
[13]
The first respondent must pay the
applicant’s costs on an attorney own client scale.
_______________________
Lagrange J
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANT:
F
Le Roux instructed by H Skosana – Le Roux Inc.
FIRST
RESPONDENT:
H
N Mkhongozeli of HN Mkhongozeli Attorneys.
[1]
[zRPz]
Modderfontein
Squatters, Greater Benoni City Council v Modderklip Boerdery (Pty)
Ltd (Agri SA And Legal Resources Centre,
Amici
Curiae
);
President of The Republic of South Africa and Others v Modderklip
Boerdery (Pty) Ltd (Agri SA And Legal Resources Centre,
Amici
Curiae
)
2004 (6) SA 40
(SCA)
at 48, para [6].