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[2017] ZALCJHB 236
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Richfield Graduate Institute of Technology v Private Schools and Allied Workers Union (PRISAWU) and Others (J1094/17) [2017] ZALCJHB 236 (13 June 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case no: J 1094/17
In the matter between:
RICHFIELD GRADUATE INSTITUTE
OF
Applicant
TECHNOLOGY
and
PRIVATE SCHOOLS AND ALLIED
WORKERS
First
Respondent
UNION (“PRISAWU)
THE PERSONS WHOSE NAMES APPEAR
ON
Second
Respondent
ANNEXURE ‘A1’ TO THE
FOUNDING
AFFIDAVIT
MORAWSI PHILLIP
MACHABA
Third
Respondent
Heard: 23 May 2017
Delivered: 13 June 2017
JUDGMENT
TLHOTLHALEMAJE,
J:
Introduction:
[1]
This is a return date following upon an order issued by Steenkamp J
on 16 May 2017 in the following terms:
“
1…
2.
Marawsi Machaba is joined to these proceedings as the Additional
Respondent.
3…..
4.
The Respondents hereby undertake to not engage in any further strike
action unless and until the interim Order is discharged
by this
Honourable Court.
5.
The Additional Respondent, representing the Respondents, is ordered
to deliver an affidavit to this Honourable Court, duly served
on the
Applicant, by no later than 10H00 on Thursday, 18 May 2017, showing
cause why the Respondents should not be found guilty
of contempt of
the Interim Order.
6.
The Additional Respondent is further order to appear in person at the
Labour Court on Tuesday, 23 May 2017 at 10:00, to answer
any further
questions which this Honourable Court may have regarding the
Respondents’ possible contempt of court.
7.
The Respondents hereby withdraw their rescission application dated 15
May 2017, on the understanding that the Respondents reserved
their
right to anticipate the return date, on notice to the Applicant, and
the Respondents undertake to not anticipate the return
date to a date
earlier than Tuesday, 23 May 2017
8.
9…..”
Background:
[2]
The above order was issued following upon an interlocutory contempt
application filed by the Applicant on 15 May 2017. The application
was also triggered by events subsequent to an
interim
order
issued by Lagrange J on 9 May 2017. These applications were launched
against the following background;
[3]
The Applicant is a registered educational institution, which operates
as a Private Higher Education as well as a Private Further
Education
and Training College. It has 48 campuses across the Republic, with
approximately 14 000 students enrolled in those
campuses. It has
about 800 employees of which 180 employed in the security and
cleaning divisions are members of PRIWUSA.
[4]
PRIWUSA is a registered trade union with its members being the Second
to further Respondents (the employees) who are in the
employ of the
Applicant. It alleged that its membership at the Applicant was 35% as
at the time it had declared a dispute. The
additional Respondent, Mr
Morawsi Phillip Machaba (Machaba), is the Secretary General of
PRIWUSA.
[5]
It was common cause that since October 2015, the Union had been
attempting to make inroads into the Applicant’s campuses,
and
had sought recognition or organisational rights. The Applicant’s
attitude to these overtures was that it was not prepared
to negotiate
with the Union in view of its lack of sufficient membership in the
workplace.
[6]
On 10 April 2017, the Union referred a mutual interests dispute to
the Commission for Conciliation Mediation and Arbitration
(CCMA).
Central to the referral was the Applicant’s alleged
‘unwillingness to negotiate wages’. In regard to
the
results of the conciliation required, the Union simply indicated
‘
Certificate of strike’
.
[7]
The dispute was scheduled for conciliation for 2 May 2017 and a
certificate of non-resolution was issued on that date. Immediately
upon the certificate being issued, the Union issued a strike notice,
indicating that the strike was to commence on 5 May 2017.
In the
notice, it was further indicated that the strike was about ‘
wage
increases for 2017 to 2018, 13
th
cheque and
annual leave days’.
[8]
The Applicant takes issue with the certificate of outcome in the
light of the true nature of the dispute referred for conciliation
by
the Union. It contended that since the issue referred pertained to ‘a
refusal to bargain’ as contemplated in section
64 (2) of the
Labour Relations Act (The LRA), the Union was obliged to obtain an
advisory award in terms of the provisions of section
135 (3) of the
LRA and had not done so. The argument was therefore that any strike
action embarked upon by the Union members was
to be deemed
unprotected and unprocedural.
[9]
The Applicant’ contention was that on 4 May 2017, and before
the strike could commence, the employees engaged in unlawful
conduct
including illegally hindering access to its premises by chaining and
padlocking the entrances to its campuses in Diagonal
Street, Harrison
Street, Jorrisen Street and Troye Street. The security
personnel was however able to remove the locks and
chains from the
entrances. Upon arrival at the campuses the next morning however, it
was again discovered that the entrances were
chained and locked.
[10]
On 5 May 2017, the employees commenced their industrial action.
According to the Applicant, the striking employees, armed with
an
assortment of weapons including knobkerries, sjamboks and sticks, had
engaged in unlawful conduct including but not limited
to acts of
intimidation, vandalism and blockading of access to its premises in
and around the Johannesburg and Pretoria area.
[11]
On 8 May 2017, the striking employees continued with their violent
conduct, including assaulting its officials at the Harrison
Street
Campus. The industrial action that started at the four campuses then
spread to other campuses across the country. The Durban
campus also
experienced violent protest on 8 May 2017. The entrances to the
Polokwane Campus were also chained and padlocked.
[12]
On 9 May 2017, the Applicant approached this Court on an urgent basis
to interdict the strike. The matter came before Lagrange
J, who had
granted a rule
nisi
in the following terms:
1.
“…
2.
A rule nisi is
issued calling upon the respondents to appear and show cause on 10
August 2017, why an order should not be granted
in the following
terms and why they should not be ordered to pay the applicants costs
the one paying the other be absolved-
2.1.
Declaring the violent conduct of the second to further respondents
(“individual respondent”) in furtherance of
their
unprotected industrial action to be unlawful;
2.2.
Declaring the strike embarked upon by the individual respondents to
be unprotected;
2.3
Interdicting and restraining the individual respondents from
persisting with the following conduct-
2.3.1
Blocking access and egress to and from the applicant’s premises
as set out on the schedule annexed hereto marked “A”
(“the premises”);
2.3.2
Intimidation non-striking employees, students and any other persons
as they attempt to [access] the premises;
2.3.3
Assaulting or threatening non-striking employees or other persons,
including security guards, who are assisting the applicant;
2.3.4
Putting chains and locks on the premises in an attempt to prevent
access and exit to and from the premises; and
2.3.5
Carrying brandishing displaying or using of dangerous weapons
including but not limited to knobkerries, sticks and sjamboks.
2.4.
Interdicting and restraining the first respondent from encouraging or
in any way instigating or assisting the second to further
respondents
to participate in unlawful activity, including the conduct listed
above, in furtherance of their unprotected industrial
action
2.5.
Ordering the first respondent to publically call upon the individual
respondents to abide by the provisions of this interim
order using
the following means –
(a)
reading out the terms of the Interim order via loud hailer to those
individual respondents, who are present at the time, in
such language
as are commonly used for communication on the applicant’s
premises;
(b)
Distribution of sufficient leaflets at the applicant’s premises
bearing [PRIWUSA’s] name, watermark, logo and contact
details
and which are signed by its National Secretary, National Organizer or
General Secretary which reads –
“
On
09 May 2017, the Labour Court issued an Order declaring your conduct
during planned unprotected industrial action to be unlawful
and
ordering [you] to sop the unlawful conduct and action, for example
the blockading of the entrance and exit to Richfield, and
participating in violence and intimidation. Should you require
further explanation of the Court Order, please approach your union
or
management.”
2.6.
Ordering the first
respondent to report to this Honourable Court by way of an affidavit
by 10:00 on 12 May 2017 to show that they
have complied with the
terms of this interim order.
…”
[13]
The Applicant in view of the events that took place subsequent to the
above order seeks a further order to find the Union and
Machaba in
contempt of court, due to non-compliance with the terms of the above
interim
order, and further to assure that the strikers stop
their unlawful conduct.
Contempt
-The legal framework:
[14]
The principles applicable in
contempt proceedings are well established as enunciated in
Fakie
NO v CCII Systems (Pty) Ltd
[1]
in the following terms;
“
(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”
[15]
The Constitutional Court in
Pheko and Others v
Ekurhuleni Metropolitan Municipality (No 2)
[2]
reaffirmed the principles set out in
Fakie
NO,
and further held that;
"Contempt of court
is understood as the commission of any act or statement that displays
disrespect for the authority of the
court or its officers acting in
an official capacity. This includes acts of contumacy in both
senses: wilful disobedience
and resistance to lawful court orders…..
Wilful disobedience of an order made in civil proceedings is both
contemptuous
and a criminal offence. The object of contempt
proceedings is to impose a penalty that will vindicate the court’s
honour,
consequent upon the disregard of its previous order, as well
as to compel performance in accordance with the previous order.’
Evaluation:
[16]
Applying the above principles to the facts of this case, it was not
in dispute that the
interim
order was indeed obtained on 9 May
2017. In regard to the service of that order, it was further
not in dispute that in the
evening on 9 May 2017, the Applicant’s
attorneys of record had served it on the Union’s email address.
On 10 May 2017,
the original court order was also served at the
Union’s offices,
albeit
with some difficulties, as
according to the Applicant, a Mr Robert van der Walt, a candidate
attorney with its attorneys of record
was intimidated, harassed and
abused when he attempted to serve the order at the Union’s
premises. It was also contended
that officials of the Union had
refused to sign acknowledgement of receipt of the order. It was
further common cause that a copy
of the
interim
order was also
served on the Union’s attorneys of record (Rikhotso Attorneys),
on 10 May 2017.
[17]
On 12 May 2017, the Applicant’s attorneys of record also
followed upon the service of the order by addressing a letter
to
Rikhotso Attorneys, and advised them that the Respondents were
cautioned to immediately comply with the terms of the order,
and that
the Union had to inform its members of the contents thereof, and as
prescribed therein, and also to advise them to return
to work in view
of the strike having been declared unprotected.
[18]
Rikhotso Attorneys were further advised that despite the order, the
unprotected strike had continued and the terms of the order
had been
disregarded in that the violent and unlawful behaviour which was
interdicted continued unabated. Machaba was specifically
identified
in this correspondence as having unlawfully and intentionally
disregarded the prescripts of the order and was alleged
to have been
in contempt thereof.
[19]
Rikhotso Attorneys were further put on terms to immediately provide
the Applicant’s Attorneys of record with proof that
the
Respondents had honoured the prescripts of the order, and that should
the requested proof not be received by 12h00 on 12 May
2017, the
Applicant would be left with no alternative but to again approach the
Court on an urgent basis, to seek
inter alia,
a contempt order
against the Respondents.
[20]
In the light of the above, I am satisfied that the
interim
order having been obtained, was also properly served on the Union. I
further did not understand it to be the Union’s case
that there
was anything in particular contained in the order which was vague or
not understood in terms of what was expected of
the Respondents.
[21]
The next issue to be determined is whether there was
non-compliance with the prescripts of the order, and if so, if it was
wilful
and
mala fide
. Thus, 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
.
[22]
Paragraph
2.1 of the interim order
declared the violent conduct of the employees in furtherance of their
unprotected strike to be unlawful,
whilst paragraph 2.3 interdicted
and restrained the employees from persisting with forms of unlawful
conduct detailed under sub-paragraphs
2.3.1 to 2.3.5.
[23]
The Applicant’s main
contention however was that despite the order being served on the
Union, the strike action and violent
conduct contrary to the
prescripts of the order had nevertheless continued throughout its
campuses on 11 and 15 May 2017. Numerous
incidents of violent and
unlawful conduct on the part of the striking employees were cited in
the Founding Affidavit to the contempt
application
[3]
.
These are further supported by numerous affidavits
[4]
compiled by individuals associated with the Applicant who were
victims of assaults, threats, intimidation and harassment at the
hands of the striking employees throughout the Applicant’s
campuses.
[24]
These unlawful incidents were
also experienced by students at various campuses and individuals and
institutions of younger learners
from adjoining properties to those
campuses, and in particular, Education Alive School in Harrison
Street, Johannesburg. A detailed
Security report by Private Security
Consultants
[5]
outlined various incidents of lawlessness and violent conduct on the
part of the striking employees at various campuses between
8 and 18
May 2017. An affidavit by Conrad van der Merwe
[6]
,
a Close Protection Officer in Johannesburg cited various incidents of
violence and intimidation, threats to staff and children
at the
Harrison Street campus. He specifically cited Machaba as the
ringleader in these acts on that campus, as he had specifically
spoken to him and implored him to comply with the terms of the court
order.
[25]
The Applicant attributed this non-compliance with the interim order
to the Union and Machaba in particular, as they had failed
to inform
the employees of the contents of the order including the fact that
the strike was declared unlawful as per paragraph
2.5 of the order.
The wilfulness and intent to disobey the order was according to the
Applicant, further borne out by Machaba’s
insistence in his
letter of 9 May 2017 that the strike was protected and would continue
until the Applicant agreed to negotiate
with the Union. Reference was
also made to Machaba’s averments in his unsigned answering
affidavit filed in respect of the
main application, that the strike
was lawful and protected.
[26]
Paragraphs 2.4 and 2.5 of the order interdicted and restrained the
Union from encouraging or in any way instigating the employees
to
participate in unlawful activities, and further required of it to
call upon its members to abide by its provisions through various
means enumerated in sub-paragraphs (a) and (b).
[27]
It was submitted on behalf of the Applicant that the Union
nevertheless failed to comply with that order as at no stage did
its
officials publicly call upon its members to abide by the provisions
of the order, or read out the terms of that order to anyone,
or even
communicate the order through any means as prescribed in that order.
It was contended that , the Union had instead filed
a defective
answering affidavit stating that the strike was lawful. It was
further pointed out that the Union had not anticipated
the return
date on 48 hours’ notice to the Applicant nor ask that the
interim
order be discharged.
[28]
Paragraph 2.6 of the order further required the Union to report to
the Court by way of an affidavit by 10.00 on 12 May 2017
to show that
they have complied with the terms of the interim order. The
Applicant’s contention was that the Union failed
to comply in
this regard.
[29]
In his answering affidavit in his capacity as the General Secretary
of the Union, Machaba raised the issue of lack of authority
by the
deponent to the Applicant’s founding affidavit. This issue was
however disposed of as it was apparent that Yuven Naidoo,
the
Applicant’s Chief Strategy Officer and deponent to the founding
affidavit was duly authorised to act on its behalf.
[30]
Machaba further contended that
the Applicant was not entitled to any relief as the certificate of
outcome was properly issued, and
that the Union had complied with the
provisions of section 64 of the LRA prior to embarking on the strike.
Machaba further denied
that the strike was unprotected or that the
employees had conducted themselves in a violent manner. He instead,
accused the Applicant
of provocation and alleged that it had hired
bouncers to assault, intimidate and harass the striking employees. In
the same vein
however, Machaba conceded that after the
interim
order was received by the Union, the strike and violent conduct had
continued on 11 May 2017
[7]
.
[31]
During argument, I had raised it with Mr Matimbi for the Respondents
as to whether they still persisted with their contention
that the
strike action was not accompanied by violent conduct. This was
particularly so in the light of the uncontested averments
made by the
Applicant in that regard as supported by numerous affidavits, and the
fact that video material depicting violent conduct
on the part of the
employees was available for the court to view in respect of various
incidents of violence. Most appropriately,
Mr Matimbi had relented,
and conceded that the denials pertaining to violent conduct and
unlawful conduct as declared, interdicted
and restrained under orders
2.1; 2.3 and its sub-orders, and 2.4 of the Lagrange J’s
interim
order could no longer be pursued.
[32]
Machaba in his affidavit filed on 18 May 2017 to show cause why the
Respondents should not be held to be in contempt, averred
that that
upon being served with the order, and after they were alerted to the
terms of that order, the Union had informed its
members to cease from
the strike action, and as at the time of the filing of his answering
affidavit, the strike action had ceased.
He denied that the
Respondents had defied the terms of the interim order.
[33]
Mr. Matimbi further submitted that Machaba’s affidavit in
respect of the contempt proceedings constituted a sufficient
compliance report as directed in the order of Steenkamp J, and that
to the extent that the Court may find that there was non-compliance
with the interim order, there was no wilfulness on their part or
intention to defy the interim order.
[34]
As already indicated elsewhere in this judgment, and as can further
be gleaned from various affidavits deposed to by affected
individuals
as further supported by a detailed report of incidents throughout the
campuses between 5 and 18 May 2018, I am
satisfied that the
Applicant was indeed able to demonstrate that that the
interim
order was indeed not complied with. In the light of the conduct
of the striking employees between 4 and 18 May 2017, which entailed
unlawful industrial action, unlawful conduct in the form of violence,
vandalism, intimidation, and threats, I am satisfied that
the
Respondents conducted themselves in contemptuous defiance of the
court order.
[35]
The allegations made on behalf of the Respondents that the strike
action or concomitant violent conduct was provoked
by the
Applicant is clearly a red herring. Machaba’s bare denials, in
the face of overwhelming evidence that the strike was
accompanied by
unlawful and violent conduct as gleaned from the numerous affidavits
and reports referred to above, are so palpably
far-fetched and
untenable that they warrant rejection.
[36]
Paragraph 2.5 of the interim order required of the Union to
publically call upon its members to abide by the provisions of
the
interim order by using various means. Machaba’s allegations
that he had informed his members of the terms of the order
are thin
and unsubstantiated, as it is not indicated when and how those terms
were communicated to the employees There is nothing
in Machaba’s
answering affidavit or his ‘contempt report’ that
indicates that indeed the Union had taken any
means to comply with
these provisions. In fact, no attempt was made by Machaba in the
answering affidavit to even respond to the
Applicant’s
averments in this regard that the Union failed to communicate the
order to its members in the manner prescribed.
[37]
Paragraph 2.6 of the Interim order also required of the Union to
submit a report to show that the terms of the order were complied
with. However, as at 10.00 on 12 May 2017, the Union had not
submitted a report as directed by the Court, and had instead
filed an
Answering Affidavit in the main application. Upon receipt of the
answering affidavit, the Union was advised by the Applicant
that
there was still non-compliance with paragraph 2.6 of the interim
order. Obviously the answering affidavit as filed by the
Union do not
comply with the prescripts of the interim order, and more
specifically since it was filed a week after the time periods
stipulated in that order.
[38]
Machaba in his answering affidavit to the contempt application merely
noted the Applicant’s averments in regard to the
requirement
that a report ought to have been filed. In the light of his glib
response to the Applicant’s averments, there
is no reason why
based on the papers, it should not be concluded that indeed the Union
failed to submit a report by 10.00 on 12
May 2017 as per the
prescripts of the
interim
order.
[39]
In the light of the above conclusions, I am satisfied that the
Applicant has proven beyond reasonable doubt that the Respondents
failed to comply with the prescripts of the
interim
order. On
the papers, I am further satisfied that the Respondents failed to
discharge an evidential burden to establish reasonable
doubt that the
non-compliance was not wilful and
mala fide
.
[40]
The issue of whether the non-compliance was wilful and
mala
fide
was obviously not addressed in the Respondents’
papers, and was only raised in argument by Mr. Matimba. It is trite
that
a case cannot be made out from the bar and to this end, I am
satisfied that on the papers, a conclusion should be reached that
indeed the non-compliance was wilful and
mala fide
.
[41]
The above conclusion is reached in the light of the
Respondent’s persistent stance despite the
interim
order
being obtained and served, that the strike action was protected. In
persisting with their conduct solely based on their contention
that
the strike was protected, it needs to be pointed out that the Union’s
attitude throughout when it referred the dispute
to the CCMA was
nothing more than to obtain a certificate and embark on a strike.
This is apparent from the nature of relief they
sought at
conciliation, and their immediate issuing of the strike notice on 2
May 2017.
[42]
The issue of whether the strike was protected or not in view
of the contention that the certificate of outcome was erroneously
issued
is neither here nor there for the purposes of determining
whether there was compliance with the order. The fact of the matter
is
that the
interim
order remained in place and the
Respondents were bound by it and expected to comply with its terms
until such time that it was
discharged. Even if the strike was for
some reason deemed to be protected, this could not have been
justification for the violence
and lawlessness that accompanied that
strike.
[43]
The Union as appears from the papers, wilfully failed to call
upon its members to abide by the provisions of the i
nterim
order, solely in the firm believe that the strike was protected. Its
members had, as gleaned from the various affidavits and reports,
continued with their unlawful conduct despite the terms of the order.
Machaba as is apparent from the affidavit of van der Merwe
as stated
elsewhere in this judgment was at the forefront of the strike. He had
made no attempts to dispute van der Merwe’s
averments or other
detailed incidents of unlawful conduct on his or the part of his
members as outlined in those affidavits and
reports. On the contrary,
he had in his capacity as the General Secretary of the Union, failed
to advise his members of the terms
of the order and had in fact,
acquiesced and taken part in the unlawful conduct complained of, with
his main attitude being that
the strike was protected.
[44]
In the light of a
contempt finding having been made, the next issue for consideration
is what measures should be taken against the
Respondents. As already
indicated, the Court in
Pheko,
confirmed that
the
object of contempt proceedings is to impose a penalty that will
vindicate the court’s honour, consequent upon the disregard
of
its previous order, as well as to compel performance in accordance
with the previous order.”
[8]
[45]
The Court in
Pheko
further held that in circumstances where
a
court finds a recalcitrant litigant to be possessed of malice on
balance, civil contempt remedies other than committal may still
be
employed. These include any remedy that would ensure compliance such
as declaratory relief, a mandamus demanding the contemnor
to behave
in a particular manner, a fine and any further order that would
have the effect of coercing compliance
[9]
.
[46]
In considering the most appropriate penalty in this case, it is taken
into account that;
a) Even though the right to strike is
constitutionally entrenched, there is an obligation on the part of
the Union to conduct its
strike activities in an orderly and peaceful
manner. Striking employees
who commit acts of
criminality and other form of misconduct during the course of strike
action in breach of an order of this court
must accept that the
consequences thereof would be severe for themselves and their union.
b)
In this case,
before the strike could commence in accordance with the notice
issued, the striking employees had conducted themselves
in the most
deplorable of manner by disrupting the Applicant’s activities;
c)
Allegations of
misconduct and lawlessness on the part of the striking employees
remained unchallenged, and this was despite the
interim
order specifically interdicting and
restraining such conduct;
d)
Because of the
striking employees conduct, and more specifically vandalism of its
property, the Applicant suffered damages (
albeit
unquantified). The Applicant obviously suffered damage to its
reputation, and it being an educational institution, learners or
students were also adversely affected;
e)
The Union in
flagrant disregard of the
interim
court order failed to advise and inform its members of the terms of
that order;
f)
Machaba, as
already indicated was identified as being in the forefront of the
strike and its associated unlawful activities, and
there is nothing
in his answering affidavit or ‘contempt report’ that
militates against why a contempt finding should
not have been made or
anything to indicate that he had in fact in his official capacity,
ensured that his members complied with
the terms of the interim
order. As a Union leader, it was expected of him to lead in the true
sense by imploring his members to
respect the terms of the order.
g)
The Union’s
and Machaba’s stance, was always that the strike was protected.
As already indicated, even if the strike
was protected, there was no
justification for the violent and unlawful conduct that accompanied
that strike, and both him and the
Union did nothing to reign in on
their members.
h)
As at the
hearing of this application, despite different versions conveyed by
counsel on behalf of the parties, it should be concluded
that even
though other employees had returned to their normal duties, some were
still not reporting for duty despite the strike
having been declared
unprotected, and there is nothing to indicate that either the Union
or Machaba made any attempts to persuade
their members still not
reporting for duty to go back to work in the light of the
interim
order, and pending the return date.
[47]
In the light of the above, I am satisfied that a severe suspended
fine should be imposed on both the Union and Machaba. Such
a penalty
will hopefully be a reminder to them that court orders are to be
taken seriously in future. As it has been repeated on
different
occasions in this court, it is not for employees and their unions to
pick and choose which court orders must be obeyed
or ignored, and
they cannot simply ignore court orders because they do not like them.
In a case such as this where an interim order
is granted, the
Respondents were compelled to comply with that order, and
thereafter anticipate the return date as they are
entitled to.
[48]
I have further had regard to the Applicant’s contentions that
there is a need to supplement the
interim
order by directing
the employees to withdraw to a distance of 100 metres from the
Applicant’s campuses across the country,
and further
authorising members of the SAPS to enforce a perimeter of 100 metres,
and to maintain such a perimeter against those
employees still on
strike. Such an order is in my view, appropriate, to the extent that
it would dissuade the striking employees
from any thought of
disrupting the Applicant’s activities.
[49]
Furthermore, in the light of the concessions made on the Respondent’s
behalf in respect of the confirmation of paragraphs
2.1; 2.3 and its
sub-paragraphs and 2.4 of the
interim
order, there is no
reason why those orders should not be confirmed rather than wait for
the return date as per paragraph 2 of that
order.
[50]
I have further regard to the requirements of law and fairness in
regards to the issue of costs. To the extent that contempt
findings
have been made, I would not have hesitated to grant a punitive cost
order against the Respondents. I am however precluded
from
considering costs in respect of this application and the rescission
application in the light of paragraph 9 of the Steenkamp
J’s
order of 16 May 2017, in terms of which costs in respect of all these
applications are to be determined on the return
date as set out in
the
interim
order of 9 May 2017.
Order:
[51]
In the light of all factors considered in this judgment, the
following order is made;
1. It is declared that the First
Respondent (PRISAWU) is in contempt of the order of this Court issued
on 9 May 2017.
2.
The First Respondent (PRISAWU) is ordered to pay a fine of
R100 000.00 (One Hundred Thousand Rand), which is
suspended
for a period of 18 months from the date of this order, on condition
that the Union is not found guilty of contempt of
any order of this
Court during that time.
3. It is declared that the Additional
Respondent, Morawsi Phillip Machaba, as duly joined to these
proceedings on 16 May 2017, is
in contempt of the Court order issued
on 9 May 2017.
4. Morawsi Phillip Machaba is ordered
to pay a fine of R50 000.00 (Fifty Thousand Rands), which is
suspended for a period of 18
months from the date of this order, on
condition that he is not found guilty of contempt of any order of
this Court during that
time.
5. Paragraphs 1; 2.1; 2.3
and all its sub-paragraphs, and paragraphs 2.4; 2.5 and 2.6 of the
interim
order issued on 9 May 2017 are herein confirmed.
6. Paragraph 2.2 of the order of 9 May
2017 shall remain
interim
pending the return date in that
regard as stipulated in paragraph 2 of that order.
7. The Second to Further Respondents
as identified in Annexure ‘A1’ to the Founding Affidavit,
and to the extent that
they are still on strike, are directed to
withdraw a distance of no less than 100 metres from the Applicants’
premises as
set out in the schedule annexed to the Founding Affidavit
marked ‘A’.
8. Members of the South African Police
Services (The SAPS), or any other persons under their direction and
control are authorised
to effect the withdrawal of the Second to
Further Respondents to a distance of no less than 100 metres from the
Applicant’s
premises as further directed in paragraph (7)
above, and to maintain such a perimeter against all persons who are
on strike.
9. The costs in relation to the main
application, the contempt application, together with the costs
associated with the Respondents’
Rescission application are to
be determined on the return date being 10 August 2017.
_________________
E Tlhotlhalemaje
Judge
of the Labour Court of South Africa
APPEARANCES:
For
the Applicant: Adv. M Meyerowitz
Instructed
by: Kyriacou Inc.
For
the First -Third Respondents: Adv. T.L Matimbi
Instructed
by: Rikhotso Attorneys
[1]
[2006] ZASCA 52
;
2006 (4) SA 326
(SCA) para [42]. See also Cathay Pacific Airways &
another v Lin & another (260/2016)
[2017] ZASCA 35
(29 March
2017) at paragraph 26
[2]
2015 (5) SA 600
(CC) at paragraphs 25 - 37
[3]
Paragraphs
54 - 78
[4]
Pages 344 –
347 of the indexed bundle
[5]
Pages 337 –
340 of the Indexed bundle
[6]
Page 343 of
the indexed bundle
[7]
Paragraph
5.6 of the Answering Affidavit
[8]
At para 28
[9]
At para 37