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[2016] ZALCD 15
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Liberty Liquors (Pty) Ltd v SACTWU (D725/16) [2016] ZALCD 15 (4 August 2016)
IN
THE LABOUR COURT OF SOUTH AFRICA, DURBAN
JUDGMENT
Not Reportable
Case
no: D725/16
In
the matter between:
LIBERTY
LIQUORS (PTY) LTD
Applicant
and
SACTWU
First Respondent
MXOLISI
VUSUMUZI and 25 Others
Furthers
Respondents
Heard:
29 July 2016
Delivered:
4 August 2016
JUDGMENT
WHITCHER
J
[1]
Following an
unsuccessful conciliation hearing on a wage dispute, the first
respondent, on behalf of the further respondents, sent
three strike
notices to the applicant. The first notice which was sent at 10h43 on
29 June 2016 stated that the strike would commence
on 30 June 2016.
When the applicant pointed out that the notice was defective, the
respondent sent a second notice at 12h45 which
stated the strike
would commence on 1 July at 12h45. Later that day, the respondent
transmitted a third notice which stated the
strike would commence on
1 July at 10h45.
[2]
At 2pm on 29 June 2016
the applicant made application on an urgent basis for a strike
interdict against the respondents. A rule
nisi
returnable on 29 July 2016 was granted in the absence of the
respondents on 30 June 2016. In terms thereof the further respondents
were interdicted “from participating in a strike or any conduct
in contemplation or furtherance of a strike in contravention
of the
provisions of section 64 and 65 of the Labour Relations Act”
(“LRA”), pending the return date of the order.
In
compliance with the order, the strike did not proceed. This is an
opposed application to confirm the rule.
[3]
The applicant submitted
that in its application for the
rule
nisi
it had relied
upon two grounds, the first being that the further respondents, as
members of SACTWU, were precluded from participating
in a strike in
terms of section 65(3)(a)(i) of the LRA as they are bound by a
collective agreement that regulated the issue in
dispute, that being
a wage dispute, and the second ground being the respondents’
failure to provide at least 48 hours’
notice of the
commencement of the strike in terms of section 64(1)(b)(i) of the
LRA.
[4]
In its heads of
argument, the applicant submitted that its reliance upon the
provisions of section 65(1)(a) was “erroneous”
as,
contrary to what was alleged in the founding affidavit, SACCAWU with
whom the applicant had concluded the collective agreement
did not
represent the majority of employees in the workplace. The applicant
submitted that it was nonetheless entitled to confirmation
of the
rule
nisi
on the second ground.
[5]
The respondents
submitted that the strike notices, taken cumulatively, gave the
applicant at least 48 hours’ notice of the
commencement of the
strike. But their main contention is that it is impermissible for the
applicant to rely on the strike notices
to confirm the rule. Firstly,
because the applicant did not obtain the rule
nisi
on the ground that
the strike notices were invalid, but on the allegation that the
respondents were bound by a collective agreement
that regulated the
issue in dispute. Secondly, the strike notices
as
an issue,
together
with the material factual averments which purport to substantiate
this issue was belatedly raised for the first time in
the applicant’s
replying affidavit. And, this was done after the respondents had
demonstrated in their opposing affidavit
that the allegation
regarding the collective agreement was false and without any merit.
In other words, the applicant, in an effort
to cure a defective case
in the founding affidavit had raised a completely new case in the
replying affidavit, which it is not
permitted to do.
[6]
The general rule which
is well established in our law is that in motion proceedings the
applicant is required to make out his or
her case in the founding
papers and not in reply. Rule 7 (4) of the Rules of the Labour Court
confirms this rules in that it provides
that the replying affidavit
must address only those issues raised in the answering affidavit and
may not introduce new issues of
fact or of law.
The
rule is not rigid and inflexible and a party is allowed to raise a
new matter in reply if there are special circumstances. Broom
J
explained the position as follows:
“
It
is true in certain circumstances it would be unjust to confine an
applicant to the contents of his founding affidavit. An example
of
further highly relevant facts coming to light later, and being
introduced despite objection, is to be found in
Registrar
of Insurance v JHB Insurance Co Ltd
(1)
1962 (4) SA 546
(W) where in an application made by the Registrar of
Insurance for the liquidation of the respondent company, a report
prepared
by a firm of accountants was admitted. Another example of
the Court authorizing an applicant to introduce new material in reply
is to be found in
Kleynhans
v van der Westhuizen NO
1970
(1) SA 565
(O) where the Court considered that, as the ramifications
of the respondent’s affairs were extensive and complex, it was
impossible for the applicant to have had all the facts at his
disposal before he launched sequestration proceedings…
But
none of these cases go to the length of permitting an applicant to
make a case in reply when no case at all was made out in
the original
application. None is authority for the proposition that a totally
defective application can be rectified in reply.
In my view it is essential for applicants to make out a prima facie
case in its founding affidavit.”
[1]
[7] In
response the applicant contended as follows. Firstly, the relief
sought in the notice of motion does not confine its case
to the
provisions of section 65(3)(a) of the LRA. The order prayed was for
the further respondents to be interdicted from participating
in a
strike or any conduct in contemplation or furtherance of a strike in
contravention of the provisions of “
section
64 and
65” of the
LRA. Secondly, the first strike notice was raised in para 17 of the
founding affidavit and a copy of the notice
was attached as an
annexure thereto. It is apparent from this that a case of
non-compliance with section 64(1)(b)(i) was made out.
Thirdly, the
respondents were invited in the replying affidavit to file a
supplementary answering affidavit, which they failed
to do. In any
event, the issue about the strike notices concerns a point of law,
which can be raised at any time. In
CUSA
v Tao Ying Metal Industries and Others,
[2]
the
Constitutional Court held as follows at para 68:
“
Where
a point of law is apparent on the papers, but the common approach of
the parties proceeds on a wrong perception of what the
law is, a
court is not only entitled, but is in fact also obliged,
mero
motu
, to
raise the point of law and require the parties to deal therewith.
Otherwise, the result would be a decision premised
on an incorrect
application of the law. That would infringe the principle of
legality. Accordingly, the Supreme Court
of Appeal was
entitled
mero
motu
to
raise the issue of the Commissioner’s jurisdiction and to
require argument thereon.”
Analysis
[8]
To my mind the rule falls to be discharged just on the fact that any
issue which may have existed on the strike notices is moot
(not a
live issue) and this Court should not concern itself with disputes
that are moot. The issue is moot because, as a result
of the rule
nisi
, the strike never proceeded and the notices expired. In
these circumstances, the applicant should not have proceeded with an
application
to confirm the rule
nisi.
[9]
The issue of mootness was considered by the Labour Appeal Court in
Potgietersrust
Platinum Ltd v Ditsela and Others
[3]
where Ndlovu JA held that:
‘
[9]
It is trite that, save in exceptional circumstances, a court will
only entertain a dispute
as long as such dispute remains live between
the parties. It is so because a court does not need to make an order
that will be
incapable of execution by virtue of the matter having
become academic. In
Geldenhuys
& Neethling v Beuthin
,
the Appellate Division (
per
Innes CJ) stated the following:
“
After
all, Courts of Law exist for the settlement of concrete controversies
and actual infringements of rights, not to pronounce
upon abstract
questions, or to advise upon differing contentions, however
important.’’
[10]
Recently, the Legislature promulgated the Superior Courts Act,
section 16(2) (a) of which provides
as follows:
“
(2)
(a) (i) When at the hearing of an appeal the issues are of such a
nature that the decision sought will have no practical effect
or
result, the appeal may be dismissed on this ground alone.
(ii)
Save under exceptional circumstances, the question whether the
decision would have no practical effect or result is to be determined
without reference to any consideration of costs.”’
[4]
Costs
[10]
A cost order against the applicant is appropriate in this case for
the reasons that follow.
[11]
It is clear that the applicant obtained the rule
nisi
on a
misrepresentation of the case. In this regard, I reject the
applicant’s contention that its reliance on the collective
agreement was merely “erroneous” and its application was
also based on the ground that the strike notices were invalid.
The
applicant knew from the start that SACCAWU was not the majority union
at any material time. This is evident from their own
papers. That the
applicant relied solely on the ground of the collective agreement is
evident from the following.
[12] In the founding affidavit, the
applicant stated that:
“
The
purpose of the application is to seek an urgent order for an
interdict against the SACTWU members participating in an unprotected
strike which is due to commenced on Thursday 30 June 2016. The basis
of the application is that the SACTWU members are precluded
from
participating in a strike in terms of section 65(3)(a)(i) of the LRA
as they are bound by a collective agreement that regulates
the issue
in dispute, that being a wage dispute”. The applicant claimed
that the further respondents were bound by the collective
agreement
because the applicant had concluded it with SACCAWU and that “at
the time of the conclusion of the said agreement”
SACCAWU was a
majority union in the workplace and the agreement specifically
provided that it applied to all permanent employees.
[13]
The applicant then went on in detail trying to establish the above
claim and to establish that
it had repeatedly warned the respondents
in writing that their intended strike would be unprotected on the
ground described above.
[14]
The applicant only mentions a strike notice in the context of
notifying the court that the strike was due to commence. A cause
of
action ordinarily means
"every
fact which it would be necessary for the plaintiff to prove, if
traversed, in order to support his right to judgment
of the
Court”.
[5]
The
reference to section 64 in the notice of motion was thus
completely
inconsistent with the factual statements and the terms of the express
claim.
[15]
In any event, even before the application for the rule
nisi
was heard, the respondent had sent the third strike notice to the
applicant and counsel for the applicant agreed during the hearing
before me that the cumulative effect of the notices was such that the
applicant had been given at least 48 hours’ notice
of the
strike.
[6]
He did go on to argue
that the notices were invalid because they were confusing. However,
in terms of the applicant’s heads
of argument, the only issue
was whether it had received at least 48 hours’ notice.
Accordingly, when the application was
heard, the applicant must have
appreciated that it had received at least 48 hours’ notice of
the strike. For the sake of
completeness, I add that although the
strike notices are not above criticism, they complied with the Act
and were not confusing.
They stated clearly when the strike was due
to commence.
[16]
Finally, the applicant brought the application for the rule
nisi
on 45 minutes notice to the respondents.
[7]
This in circumstances where it failed to establish grounds for the
short notice. The respondents were accordingly denied any opportunity
to oppose the application before the rule
nisi
was
issued.
Order
[17]
The rule
nisi
issued on 30 June 2016 is discharged with costs. The costs are to be
paid on an attorney-and-client basis.
________________________________
Whitcher J
Judge
of the Labour Court of South Africa
APPEARANCES:
For
the applicant: Adv G O van Niekerk, SC instructed by Millar &
Reardon
For
the respondents: Brett Purdon Attorneys.
[1]
My emphasis.
[2]
[2008] ZACC 15
;
2009
(2) SA 204
(CC);
2009
(1) BCLR 1
(CC)
[3]
Case No
JA66/12 delivered on 2 July 2015.
[4]
At paras 9
and 10.
[5]
MacKenzie
v Farmers Cooperative Meat Industries Ltd.
1922
AD 16
at 23;
Evins
v Shield Insurance Co Ltd.
1980 (2) SA 815 (A).
[6]
See:
SACTWU v Stuttafords
Department Stores
(1999)
20 ILJ 2692 (LC).
[7]
The notice
of motion and t
he
founding affidavit was only served on the respondents 45 minutes
before 2pm on 29 June 2016.