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[2017] ZALCCT 60
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Gri Wind Steel South Africa v AMCU and Others (C561/17) [2017] ZALCCT 60; [2018] 3 BLLR 273 (LC); (2018) 39 ILJ 1045 (LC) (23 November 2017)
REPUBLIC
OF SOUTH AFRICA
Reportable
Of
interest to other judges
THE
LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
JUDGMENT
C
ase
no: C 561/17
In
the matter between:
GRI
WIND STEEL SOUTH
AFRICA
Applicant
and
AMCU
First respondent
LONN
VAN
GRAAN
Second respondent
LENNOX
MATINGA
Third respondent
EBEN
JANSEN
Fourth respondent
GEORGE
YEKISO
Fifth respondent
Heard
:
17 November 2017
Delivered:
23 November 2017
SUMMARY:
Contempt of court – violent and
unlawful acts during protected strike. Wilful and mala fide acts by
trade union and shop stewards
not proven beyond a reasonable doubt.
JUDGMENT
STEENKAMP
J
Introduction
[1]
This is an application to hold
a trade union, the Association of Mineworkers and Construction Union
(AMCU), and four of its shop
stewards in contempt of court.
[1]
It arises in the all too common South African context of a protected
strike turning violent; striking workers committing violent
and
unlawful acts; and the South African Police Services standing idly
by, playing an observer’s role without arresting a
single
perpetrator.
Condonation
[2]
After pleadings had closed following a timetable agreed to on a
previous date, both parties filed supplementary affidavits late.
At
the hearing I granted condonation for the late filing of those
affidavits.
Background
facts
[3]
AMCU called its members at GRI in Atlantis out on a protected strike.
Things deteriorated rapidly. Striking workers blockaded
entrances and
exits to the premises; set tyres alight; prevented non-striking
workers from entering, while brandishing knopkieries,
hammers and
steel bars; assaulted and threatened non-striking workers; threw beer
bottles and other objects at vehicles entering
the premises; and made
fires on a private road.
The
court order
[4]
On 13 September 2017 Tlhotlhalemaje J issued an order interdicting
and restraining AMCU from:
“
3.1 encouraging or instructing
its members to perform any acts or omissions, which may directly or
indirectly endanger the property
of the applicant, its employees or
any member of the public;
3.2 encouraging or instructing its
members to perform any acts of intimidation;
3.3. encouraging or instructing its
members currently to perform acts or omissions which may, directly or
indirectly, endanger the
lives or physical safety of any members of
the public or any of the applicant’s employees; and
3.4 encouraging or instructing its
members to interfere with, or obstruct, access to and exit from the
applicant’s premises
at 3 John van Niekerk Street, Atlantis,
Cape Town.”
[5]
The striking workers (including the four shop stewards) were
interdicted and restrained from:
“
4.1 performing any acts, or
omissions, that may directly or indirectly endanger the property of
the applicant, its employees or
members of the public:
4.2 performing any acts of
intimidation;
4.3 performing acts or omissions which
may, directly or indirectly, endanger the lives or physical safety of
any members of the
public or any of the applicant’s employees;
and
4.4 interfering with, or obstructing,
access to and exit from the applicant’s premises at 3 John van
Niekerk Street, Atlantis,
Cape Town.”
Contempt:
the principles restated
[6]
The legal principles with
regard to contempt proceedings were usefully and eloquently
summarised by Cameron JA in
Fakie
NO v CCII Systems (Pty) Ltd
:
[2]
“
(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.
[7]
These principles were restated
by the Labour Appeal Court in
FAWU
v In2Food (Pty) Ltd
.
[3]
In that judgment, turning to the liability of trade unions, that
Court said :
“
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.”
[8]
And in
SAMWU
v Thaba Chweu Local Municipality
[4]
the Court summarised the requirements thus:
“
Crystallised down to its
simplest terms, a respondent is in contempt where the respondent
knows and understands the terms of the
order and what is required to
be done to comply with the order but then without any cause or
justification deliberately does not
comply.”
[9]
Court orders are enforceable in
the Labour Court by way of contempt proceedings such as this one.
Tlhotlhalemaje J recently observed
in
Betafence
South Africa (Pty) Ltd v NUMSA
[5]
:
“
This Court is approached on a
daily basis by both unions and employers on a variety of issues
including strike interdicts and dismissals
emanating from those
strikes. Where strike interdicts are issued and employees find
themselves dismissed as a result of participation
in those strikes or
other conduct related thereto, they are quick to exercise their
rights and approach this very Court, sometimes
on an urgent basis, to
seek their reinstatement and/or other relief. When court orders are
issued in their favour, employees would
insist, and correctly so,
that employers should abide by and comply with those orders. It
therefore follows that it would be untenable
for this Court to
countenance instances where litigants pick and choose which of its
orders should be obeyed, and which should
be disregarded with
impunity.
An observation that needs to be made
in this Court is that employees, especially in the face of strike
interdicts, routinely disregard
the orders of this court for no
reason other than that they simply do not like them. This
contemptuous approach towards orders
of this court is in some or most
instances, aggravated and/or encouraged by unions, their officials
and/or shop stewards. In some
instances, as in this case, employees
refuse to even heed the advice of their union representatives and
leaders. In the latter
instance, and where unions even confirm in
papers before the court that the employees had indeed refused to heed
court orders,
the invariable conclusion to be reached is that the
non-compliance by the employees was indeed both wilful and mala fide…
This level of contempt has reached a
point where if unchecked, the rule of law will become meaningless. In
the end, anarchy and
mayhem, which normally characterises most
industrial actions we have witnessed, will become the new normal.
This cannot bode well
for our constitutional democracy, and only a
stern approach by the courts can stop this slippery slope.”
[10]
The Labour Appeal Court
reiterated in
FAWU v In2Food
(Pty) Ltd
:
[6]
“
Proof of contempt of a court
order requires, in particular, proof of the order, of due service on
the relevant party, and
of deliberate wilful disobedience.
Moreover, there must be proof beyond reasonable doubt. (
Fakie NO v
CCII Systems (Pty) Ltd
[2006] ZASCA 52
;
2006 (4) SA 326
(SCA) at
[42]
).
…
“
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.”
[11]
The LAC held that it had not been proven, in
In2Food
, that the
union had breached the court order. It nevertheless aligned itself
with the following sentiments expressed by the court
a quo
:
“
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 have trade unions 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.”
The LAC said:
“
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. Nevertheless, on the
facts of this matter, the
appellant has not been shown to have
breached the order.”
[12]
A lesson to be learnt from the LAC is that the initial interdict
should be drafted in terms that hold the responsible trade
union
accountable – a factor that weighs heavily in the case before
me. As Sutherland J pointed out:
“
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 Springs, a Division of 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.
[19] It does
not assist the general secretary of the union to raise the defence
(which he appears to do)
that the union did not sanction the strike
and that it was therefore not in contempt of the court order.”
[13]
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.
[7]
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.”
[14]
As Conradie JA commented in
Steve’s Spar
[8]
:
“
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.”
[15]
Davis JA expressed similar
sentiments in
North West
Star
:
[9]
“
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. 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.”
[16]
In
Ram
Transport
[10]
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.”
[17]
More recently, in
Richfield
Graduate Institute of Technology v Private Schools and Allied Workers
Union (PRISAWU) and Others
,
[11]
the union was ordered to take specific steps to bring an unprotected
strike and associated violence to an end. These included
publicly
calling on the strikers to abide by the interim order by reading out
the interim order by loud-hailer in the language
that is ‘commonly
used for communication on the [employer]’s premises’ and
distributing sufficient leaflets at
the employer’s premises
bearing the union’s name and logo, and signed by a senior
official, informing strikers of the
terms of the interdict in wording
prescribed by the court. In addition, the union was ordered to report
to the court after three
days by way of affidavit ‘to show that
[those concerned] have complied with the terms of this interim
order’.
The union did not comply, and made no
demonstrable attempt to do so. It was accordingly found to be ‘in
flagrant disregard
of the interim court order’.
[18]
As an aside, the levels of
violence associated with strikes and the level of contempt for the
rule of law has reached such alarming
levels that the Labour
Relations Amendment Bill, published on the day that this application
was being argued
[12]
,
envisages a new section
[13]
that provides for the director of the CCMA to appoint an advisory
arbitration panel in the public interest to make an advisory
arbitration award if the director has reasonable grounds to believe
that “there is an imminent threat that constitutional
rights
may be or are being violated by persons participating in or
supporting the strike or lockout through the threat or use of
violence or the threat of or damage to property”.
Evaluation
on the facts of this case
[19]
As Mr
Ackermann
pointed out, AMCU has the proverbial sword of Damocles hanging over
its head. In
KPMM Road and
Earthworks (Pty) Ltd
[14]
the union was fined R1
million, suspended for three years, for contempt of court, on the
condition that it is not found to be in
contempt of any order of this
Court within that period. And that case was also decided in the
context of violent, albeit protected,
strike action.
[20]
The existence and service of
the court order is not in dispute. The applicant must prove
non-compliance; once that is proven, the
respondents have an
evidential burden in relation to wilfulness and
mala
fides
. Should the
respondents fail to adduce evidence that establishes a reasonable
doubt as to whether their non-compliance was wilful
and
mala
fide
, contempt is
established beyond a reasonable doubt.
[15]
Non-compliance?
[21]
It will be immediately apparent
that the order against AMCU does not impose any positive obligations
on it. Perhaps the notice of
motion was unwisely drafted; but be that
as it may, it only prevents the union from actively encouraging or
inciting its members
from acting unlawfully – something that,
in an ideal world of collective bargaining, should be entirely
superfluous. What
it does not do, is to impose obligations on the
union to take active steps – for example, to address its
members publicly
and to remind them of the limits of peaceful
picketing; to distribute flyers to that effect; or to take out
advertisements reminding
its members of their obligations under the
law and the terms of the interdict. That is in contradistinction to
the order in
KPPM
[16]
where AMCU was specifically ordered “to take all reasonable
steps within its power to persuade the [striking members] not
to
engage in unlawful action associated with the strike”.
[22]
The union members, on the other hand, are interdicted from various
unlawful acts
or omissions
: although clumsily worded, that has
the effect that they cannot wash their hands of unlawful acts
committed by their comrades in
their presence. That much also goes
for the four shop stewards.
[23]
It is not disputed that unlawful acts were committed. The employer
has not been able to identify individual perpetrators. In
what has
become a worrying trend in these sorts of incidents, SAPS has not
arrested anyone, despite the fact that they were acting
unlawfully.
The employer has had to set its sights on the four individuals on
whom it has been able to serve the interdict, i.e.
the four shop
stewards (out of seven). And it alleges omissions rather than
positive acts by the shop stewards – in short,
they have
omitted to prevent the unlawful acts by their members.
[24]
A number of acts took place or continued after the order had been
granted and served, and contrary to the terms of the order.
I will
deal with each in turn.
Interfering
with members of the public
[25]
The court order specifies that the strikers may not interfere with
members of the public. Yet one of the shop stewards, Van
Graan,
readily admits that the striking workers “are blocking cars at
the intersection of John van Niekerk and Neil Hare
Roads”.
[26]
His answer to this fact is to say that he – Van Graan –
cannot identify the perpetrators because they are wearing
balaclavas.
And he then exculpates the shop stewards by saying they are thin on
the ground: the seven shop stewards are split between
the front and
rear gates of the factory premises, ostensibly to ensure that the
strikers do not block those entrances. As a result,
he says, the
strikers have blockaded the road further down the road (150-200
metres away), and the shop stewards are unable to
control that. He
also readily admits that the strikers are acting with impunity
because they have sought solace in the fact that
the employer has
only sought to bring contempt proceedings against the four shop
stewards.
[27]
Mr
Cook
, in his argument, also engaged in a bit of
“whataboutism” – what about NUMSA members, who,
although they are
not on strike, may also be engaging in these acts?
And what about members of the public? They could be the ones
responsible. This
is not only improbable, it seeks to exculpate AMCU
members where they are clearly, on the probabilities, the ones who
are causing
mayhem; but even though they have not complied with the
court order, the applicant has to prove that the four shop stewards
have,
by omission, not complied (as it cannot identify the actual
perpetrators), as well as the union; and if it can do so, the
respondents
must show that it was not wilful and
mala fide
.
And contempt must be established beyond a reasonable doubt.
Obstructing
access
[28]
Van Graan also admits that strikers have placed tyres on the road,
thus obstructing access. But he says he and other shop stewards
have
removed the tyres and have not encouraged the other strikers to block
the entrances.
[29]
He goes further to say that he actively intervened when an “unknown
individual” snatched the car keys from GRI’s
human
resources manager, Graham de Koker. The individual – who said
that he works for GRI – swore at De Koker and threatened
to
assault him. Van Graan denies knowing him.
Objects
being thrown
[30]
De Koker stated under oath that two beer bottles were thrown at his
car when he was forced to stop at a tyre barricade. Van
Graan and
Jansen, two of the shop stewards, were present.
[31]
Van Graan does not deny this incident. Nor does he deny that the
occupants of a Hilux bakkie attacked a vehicle belonging to
TSU
security company that was transporting striking workers. They threw a
brick at the vehicle, breaking the window and narrowly
missing one of
the non-striking employees inside. But whilst acknowledging the
presence of an “angry mob” and hearing
“objects
being thrown”, he says that he shouted at the crowd to stop
throwing anything.
The
meeting of 16 October
[32]
The shop stewards attended a meeting with management on 16 October
2017. One of them, Mr Cenya, said that the court order did
not apply
outside GRI’s premises – a statement that is clearly not
borne out by the order itself. And another shop
steward, Mr Sikhum,
said that they cannot help what happens in the “location”.
None of the four shop stewards cited
in this application spoke up to
correct their colleagues.
[33]
In response to this allegation of “breach by omission”,
Van Graan says that he “did not think it appropriate
to
undermine Senya in the meeting” but that he subsequently made
it clear to Senya that the order extends beyond GRI’s
premises.
With regard to Sikhum’s comment, he says that the shop stewards
“cannot prevent what happens outside of their
area of control
and influence”.
[34]
It is tempting to construe the
shop stewards’ silence at the meeting, in the fact of Senya’s
misleading interpretation
of the court order, as deliberate
non-compliance. In
KPMM
[17]
the court referred to the
dictum
of Cameron JA in the
context of collective misconduct in
Leeson
Motors
:
[18]
“
The question of collective
motive and the workers’ silence during the repeated
confrontations about the sabotage warrant further
consideration. The
possibility that the damage was inflicted by a maverick individual
with an idiosyncratic grudge against management
can in my view be
excluded as overwhelmingly unlikely. If this had been the case, the
workers’ response would undoubtedly
have been to volunteer
indignant and alarmed assistance to management in the detection of
the perpetrator. Given the physical circumstances,
that they failed
on repeated occasions to do so suggests, as the most likely
inference, either that each worker was on one or more
occasion
individually involved in planning or inflicting sabotage, or that
each worker knew who was responsible, and deliberately
chose to
associate himself with him or them through silence. It must in my
view therefore be inferred, as a matter of probability,
that each
worker culpably participated in the campaign of sabotage.”
[35]
But in this case, Van Graan says that he corrected Senya afterwards;
and that the four shop stewards simply cannot control
what their
members do in the township. Even if there was non-compliance in the
meeting, the question remains whether it was wilful
and
mala fide
.
And, unlike the case in
Leeson Motors,
the standard of proof
required in this case is beyond a reasonable doubt and not on a
balance of probabilities.
Wilful
and mala fide?
[36]
In assessing the allegations of
the shop stewards, the Court is bound by the rule in
Plascon-Evans.
[19]
[37]
Wilful non-compliance must be established beyond a reasonable doubt.
And on the version of the respondents before me –
even if it is
improbable – I cannot find beyond a reasonable doubt that they
are in wilful and
mala fide
breach of the court order.
[38]
The shop stewards refuse to (or say they cannot) identify the
perpetrators. And they say that, far from omitting to do so,
they
have done their best to ensure that their members do comply with the
court order. They have cast doubt on the applicant’s
version
that they have not done so. In law, that means that the Court cannot
find that they are in contempt.
[39]
The same considerations apply to the meeting of 16 October. Applying
the rule in
Plascon-Evans
, I must accept that Van Graan
corrected Senya’s misleading statement after the fact; and I
cannot, on the evidence before
me, find that the shop stewards were
in a position to prevent the barbaric and violent actions of their
members directed against
non-strikers in the township, but wilfully
omitted to do so.
[40]
In the case of AMCU, the
contempt application is hamstrung by the same considerations as those
that applied in
In2Food.
As Sutherland JA remarked in that case:
[20]
“
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… [T]he liability of the [union] 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.”
[41]
In this case, only paragraph 3
of the court order was directed at AMCU itself. That paragraph
instructed the union to refrain from
inciting or encouraging its
members to perform unlawful actions.
[21]
But the applicant has not been able to show beyond a reasonable doubt
that the union itself did so after the order had been granted,
despite the continuing unlawful acts of its members.
Conclusion
[42]
The applicant has not been able to cross the significant threshold of
proving contempt beyond a reasonable doubt. That means
that
perpetrators of violent facts have come off scot free – largely
because SAPS have not acted and arrested them. Mr De
Koker states in
his supplementary founding affidavit:
“
The local police refuse to
assist despite being shown the interdict. The riot police say they
don’t work early hours, and
they can’t get there because
they have to come from Faure. Then in the afternoons they say they
have to leave at 4 PM in
order to be back at 6 PM.… The local
police and the riot police have also informed us that they can only
take action if
the strikers are on ‘our property’”.
[43]
This is a depressingly common
scenario. It is reminiscent of the #feesmustfall protests at South
African universities, where the
SCA dealt with the violent protests
at the University of Cape Town and remarked: “Attempts by
university management to invoke
the assistance of the police were
unsuccessful.”
[22]
It should not be for the employer to identify individuals who hide
behind balaclavas and to prove in contempt proceedings that
they have
wilfully and
mala fide
breached the exact terms of a court order.
[44]
Be that as it may, on the facts before me I cannot find beyond a
reasonable doubt that AMCU and the four shop stewards have
knowingly,
wilfully and
mala fide
breached the order of Thlothlalemaje J.
The Court can only express the vague hope that, in future, trade
unions and their officials
will do more to inculcate in their members
the boundaries of peaceful picketing in protected strikes; and that
striking workers
will take heed of the agreement in NEDLAC as
recently as last month (October 2017), in which the parties
(including trade union
federations) affirm that “the
constitutional right to strike and the statutory right to lock out
must be peaceful,
free of intimidation and violence, including
violence and intimidation that may be associated with police
action”.
In the same accord, trade unions undertake to make
public statements calling on members to act in a law abiding and
peaceful manner;
and to take all necessary steps to prevent violence,
intimidation and damage to property “and to comply with a court
order
interdicting violence, intimidation and damage to property”.
[45]
Mr
Cook
urged the Court to make a punitive costs order against
the employer. There is no reason to do so. The union’s
allegations
of union bashing and of the employer favouring NUMSA over
AMCU are not only oblique and without real substance, it has little
to
do with the merits of this case. It is apparent that members of
AMCU have behaved in an appalling, violent and unlawful fashion;
that
some non-striking NUMSA members may or may not have joined in the
mayhem, is really beside the point. The applicant was unsuccessful
because it could not prove beyond a reasonable doubt that AMCU and
the four identified shop stewards had wilfully breached the
court
order. The fact that the employer was forced to obtain an interdict
in the first place in an effort to prevent further unlawful
and
violent action, and that the union could not control its members, can
hardly go very far to persuade the Court, in law and
fairness, to
make such an order. Instead, in the vague hope that good sense may
prevail and that the parties will be able to forge
a better
relationship now that the strike is over, I do not think a costs
order either way is advisable.
Order
The
application is dismissed.
_______________________
Anton
J Steenkamp
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANT:
L W Ackermann
Instructed
by
Guy and
associates.
RESPONDENTS:
A L Cook
Instructed
by
Larry Dave Inc.
[1]
A court order was granted against the union and all
of
the striking workers as respondents, but the employer could only
prove service of the order on the union and the four shopstewards.
[2]
[2006] ZASCA 52
;
2006 (4) SA
326
(SCA) par 42. See also
Orthocraft
(Pty) Ltd t/a Advanced Hair Studios v Musindo
(2016) 37 ILJ 1192 (LC);
Robertson
Winery (Pty) Ltd v CSAAWU and Others
(2017)
38
ILJ
1171 (LC).
[3]
(2014) 35
ILJ
2767
(LAC) par 9.
[4]
[2015] ZALCJHB 31 par 27.
[5]
[2016] ZALCCT 33 (15 September 2016) paras 53-54.
[6]
(2014) 35
ILJ
2767 (LAC) paras 7, 9 and 18.
[7]
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).
[8]
Modise & others v
Steve’s Spar Blackheath
(2000) 21
ILJ
519 (LAC) para [120], also cited by Myburgh SC.
[9]
North West Star (Pty) Ltd v
Serobatse
(2005) 26
ILJ
56 (LAC) para [17].
[10]
Ram Transport (Pty) Ltd v
SATAWU
(2011) 32
ILJ
1722 (LAC) para [9].
[11]
[2017] ZALCJHB 236 (13 June 2017).
[12]
Labour
Relations Amendment Bill, 2017, published in GN R 1273,
Government
Gazette
No 41257, 17 November 2017.
[13]
s
150A(4)(b).
[14]
J 1520/2016 (18 September 2017). [AMCU has applied for leave to
appeal in
KPMM
].
[15]
Fakie v
CCII
par
42.
[16]
Supra
para
18.
[17]
Above at
par 41.
[18]
Chauke &
Ors v Lee Service Centre t/a Leeson Motors
(1998) 19
ILJ
1441
(LAC) paras 40-41.
[19]
Plascon-Evans
Paints (Tvl) (Pty) Ltd v Van Riebeeck Paints Ltd
1984
(3) SA 623 (A).
[20]
FAWU v
In2Food (Pty) Ltd (supra)
para
12.
[21]
Much as was
the case in
Supreme
Springs,
referred
to in par 14 of
In2Food.
[22]
Hotz &
Others v University of Cape Town
2017
(2) SA 485
(A) at 492F.