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[2017] ZALCCT 5
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Y and L Fishing Enterprise (Pty) Ltd v General Industries Workers Union of South Africa (GIWUSA) and Others (C650/16) [2017] ZALCCT 5 (3 February 2017)
THE
LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
JUDGMENT
NOT
reportable
Case
no: C650/16
In the
matter between:
In re:
Costs:
Y &
L Fishing Enterprises (PTY) LTD
Applicant
and
GENERAL
INDUSTRIES WORKERS’
UNION
OF
SOUTH AFRICA (GIWUSA)
First Respondent
MICHAEL
HELU
Second
Respondent
ELLIOT
MKWELA
Third Respondent
A
FANAPHI
Fourth
Respondent
DUNISWA
VUNGUVUNGU
Fifth Respondent
EDWIN
KAMBADZA
Sixth Respondent
LWADISILE
GCINISISU
Seventh
Respondent
THOBELANI
MKUNJANA
Eighth
Respondent
MAWANDE
NOHESI
Ninth
Respondent
CHUMISA
MBOVANE
Tenth Respondent
SITHEMBILE
NKUMENI
Eleventh Respondent
BABALWA
BALFOUR
Twelfth Respondent
SIYA
MAZOLWANA
Thirteenth Respondent
M.
NYELESHE
Fourteenth Respondent
N.
QWELE
Fifteenth Respondent
T.
NYIKILA
Sixteenth Respondent
Heard
:
4 November
2016
Delivered
:
3 February 2017
Summary
:
JUDGMENT
RABKIN-NAICKER
J
[1] On
the 4 November I confirmed a
rule nisi
issued by Steenkamp J
on 28 September 2016 interdicting unlawful action by the respondents
in pursuance of a protected strike.
I reserved judgment regarding the
costs of the interdictory relief as well as judgment on the return
day of a contempt application
in this matter brought by the applicant
on the 7 October 2016.
Interdictory
Relief
[2] In as
far as the costs sought for the urgent application in respect of the
interdict. It was submitted by Counsel for the applicant
that given
that the union did not oppose the interdictory relief sought by the
applicant, it should pay the costs.
[3]
It is useful to remind ourselves of the principles which still govern
costs orders in this court which were set out in National
Union of
Mineworkers v East Rand Gold and Uranium Co Ltd
[1]
per Goldstone JA :
“
1.
The provision that 'the requirements of the law and fairness' are to
be taken into
account is consistent with the role of the industrial
court as one in which both law and fairness are to be applied.
2.
The general rule of our law that, in the absence of special
circumstances costs
follow the event, is a relevant consideration.
However, it will yield where considerations of fairness require it.
3.
Proceedings in the industrial court may not infrequently be a part of
the conciliation
process. That is a role which is designedly given to
it. Parties, and particularly individual employees, should not be
discouraged
from approaching the industrial court in such
circumstances. Orders for costs may have such a result and
consideration should be
given to avoiding it, especially where there
is a genuine dispute and the approach to the court was not
unreasonable. With regard
to unfair labour practices, the following
passage from the judgment in the Chamber of Mines case supra at 77G-I
commends itself
to me:
'In
this regard public policy demands that the industrial court
takes into account considerations such as the fact that justice
may
be denied to parties (especially individual applicant employees) who
cannot afford to run the risk of having to pay the other
side's
costs. The industrial court should be easily accessible to litigants
who suffer the effects of unfair labour practices,
after all, every
man or woman has the right to bring his or her complaints
or alleged wrongs before the court and should
not be penalised
unnecessarily even if the litigant is misguided in bringing his or
her application for relief, provided the litigant
is bona fide. . .
.'
4.
Frequently the parties before the industrial court will have
an
ongoing relationship that will survive after the dispute has been
resolved by the court. A costs order, especially where the
dispute
has been a bona fide one, may damage that relationship and thereby
detrimentally affect industrial peace and the conciliation
process.
5.
The conduct of the respective parties is obviously relevant,
especially when considerations of fairness are concerned.
The
aforegoing considerations are in no way intended to be a numerus
clausus. A very wide discretion is given by the Act to the
three
courts with regard to the exercise of their powers and no less in
respect of orders for costs. Such a discretion must be
exercised with
proper regard to all of the facts and circumstances of each case.”
[4] In
this matter I take cognisance of the on-going relationship between
the parties. Further the interdictory application was
unopposed, and
I do not intend to order costs in this matter.
The
Contempt of Court Application
[5] The
order granted by Steenkamp J on the 28 September 2016 interdicted the
following as follows:
2.1.1
Assaulting, intimidating, or threatening the Applicant’s
employees, or destroying or damaging, or threatening to do
so, any
property belonging to the employees or the Applicant.
2.1.2
Barricading in any manner whatsoever the entry and exit to the
Applicant’s premises, or in any other manner preventing
vehicles from entering and exiting the premises.
2.1.3
Encouraging or coercing any of the Applicant’s employees, or
the First Respondent’s members, in participating
in any form of
unlawful action as set out in paragraphs 2.1.1 to 2.1.2 above.”
[6]
The applicant avers that the Order was served by the Applicant’s
attorney by fax on the First Respondent, the union, and
was served on
the striking employees in terms of paragraph 6 of the Order by the
Sheriff on 28 September 2016, including on 10
copies on the employees
who were at the main gate at the time of service. The deponent to the
founding affidavit states that “To
the best of my knowledge and
belief these included all the striking employees cited as Respondents
hereto.”
[7] The
respondents did not dispute service in the answering papers. The
disputed facts in the application are in respect of striking
workers
blockading entrance to the premises by sitting down in front of the
gate and ‘hindering and interfering’ with
persons wishing
to enter and exit the premises. While the union regards its member’s
actions as ‘trying to persuade’
a customer from entering
the premises, the applicant refers to the union member’s
actions as ‘intimidation’.
[8] It is
troubling that neither of the parties approached the CCMA in order to
establish picking rules, more especially after the
rule nisi was
granted. unfortunately the rule nisi did not specify any distance
beyond which the respondents should not picket.
Utilising the
CCMA procedures not only promotes orderly collective bargaining but
also lessens the potential costs involved
in litigation. It allows
for the exercise of employees’ right to picket in support of
their demands, while providing for
protection for employers from
unlawful actions.
[9] Given
the photographs produced by the applicant showing that some of the
respondents surrounding a vehicle had knobkerries in
their hands, it
is accepted that intimidation occurred. There was contempt of the
order by Steenkamp J. I am of the view that a
declaration to that
effect, on the balance of probabilities, suffices on the particular
facts of this case. Despite the ongoing
relationship between the
parties, where a court order is disregarded as it was in this case,
it is appropriate that the Court shows
its displeasure by means of a
costs order.
[10] In
all the premises, I make the following order:
Order
1.
There is no order as to costs in respect of the application for
interdictory relief.
2.
The respondents are declared to be in contempt of the court order of
Steenkamp J granted on the
28 September 2016.
3.
Costs of the contempt application are to be paid by the First
Respondent and the individual respondents
in the contempt
application, jointly and severally, the one paying the other to be
absolved.
__________________
H.
Rabkin-Naicker
Judge
of the Labour Court
Appearances:
Applicant:
LW Ackermann instructed by Lionel Murray Schwormstedt & Louw
Respondents:
Union Official
[1]
[1991] ZASCA 168
;
1992 (1) SA
700
(A) at p.739