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[2018] ZALCJHB 285
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Epic Foods (Pty) Ltd v Inqubela Phambili Trade Union and Others (J130/18) [2018] ZALCJHB 285 (11 September 2018)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
case
no:
J130/18
In
the matter between:
EPIC
FOODS (PTY)
LTD
Applicant
and
INQUBELA
PHAMBILI TRADE
UNION
1
st
Respondent
THOKOZANI
NTULI
2
nd
Respondent
THE
SOUTH AFRICAN POLICE
SERVICES
3
rd
Respondent
Heard
:
30 August 2018
Delivered
:
11 September 2018
Summary:
Return day – Final order sought to interdict certain conducts
by the first respondent and its members. Responsible
conduct of a
Trade Union during a strike action considered. Order against the
third respondent – whether interim or final
– discharge
or confirmation thereof. Held: (1) All orders were discharged with
costs in appropriate circumstances.
JUDGMENT
MOSHOANA,
J
Introduction
[1]
Today is the return day for three separate orders issued by this
court on 22, 24 and 25 January 2018 respectively. The first
order
interdicted and restrained certain conducts by the members of the
first respondent and directed the first respondent to take
steps to
restrain its members. The second order found the first respondent to
be in contempt of the first order and amended the
picketing area. The
third order withdrew the picketing rights and ordered and directed
the third respondent to do certain things.
It bears mentioning at
this stage that the third order was obtained
ex parte
. The
applicant had to lead oral evidence in an open court to obtain the
order. None of the respondents, particularly the third
respondent,
was served and or given notice of the intention to obtain the order.
The confirmation of all the orders are opposed
by the first and third
respondents. The second respondent has been removed and is no longer
a relevant party in this application.
Background
facts
[2]
For the purposes of this judgment, it is
not necessary to punctiliously recount the facts of this case.
Suffice to state that on
or about 18 January 2018, the employees of
the applicant engaged in a protected strike action. In the course,
the employees conducted
themselves unlawfully. Such conduct prompted
the applicant to approach this Court for relief. Consequent thereto,
the first order
was issued.
[3]
The first respondent and its members
allegedly failed to adhere to the first court order. Such
non-adherence compelled the applicant
to approach the Court for a
contempt order. That gave birth to the second order. Yet again, the
first respondent and its members
allegedly failed to adhere to the
orders. That compelled the applicant to approach this court for the
third time on an
ex parte
basis. At this occasion, the court issued orders and directives
against the third respondent in its absence.
[4]
On 25 April 2016, the rule that was issued
was extended to 30 August 2018, on which day I heard the matter and
reserved judgment.
Evaluation
[5]
At the time of hearing this matter, the
alleged unlawful conduct had ceased to continue in or about June 2018
as confirmed by the
applicant’s counsel. Also, the members
alleged to have been involved in the unlawful conduct ceased to be
members of the
first respondent on or about 31 January 2018.
Therefore, the only live issue in relation to the first order was the
issue of costs
against the first respondent and the individual
members. It is trite, that an urgent court is not the place to debate
issues of
costs. For that reason, I shall not in any details discuss
the issue of costs. Apart from the issue of costs, the first order is
moot and academic. On this ground alone, I am not prepared to make
the order final.
[6]
What then remains is the issue of the
contempt order against the first respondent and the issue of the
orders and directives against
the third respondent. In other words, I
shall, in this judgment, consider the first; second and the third
order together with the
issue of costs in respect of each. I shall
deal with the third order first.
The
third order
[7]
The
first and the most fundamental difficulty with this order is that it
was obtained
ex
parte
.
The third respondent was not aware that some relief was being sought
behind its back. The court transcript of the day reveals
that the
issue of service was not addressed at all by the applicant’s
counsel. After leading oral evidence, the applicant’s
counsel
was afforded an opportunity to prepare a draft order, which, with
minor amendments was adopted by this court. The High
Court in
SAA
SOC v BDFM and others
[1]
had the following to say:
“
[22]
The principle of
audi
alteram partem
is sacrosanct in the South Africa legal system. Although, like all
other constitutional values, it is not absolute, and must be
flexible
enough to prevent inadvertent harm, the only times that a court shall
consider a matter behind a litigant’s back
are in exceptional
circumstances. The phrase “exceptional circumstances” has
regrettably been through overuse, and
in the habits of hyperbole,
lost much of its impact. To do that phrase justice, it must mean very
rarely, only if a countervailing
interest is so compelling that a
compromise is sensible, and then a compromise that is parsimonious in
the deviation allowed.”
[8]
The
court went on to set out what is incumbent on any attorney of any
person who contemplates an urgent application on less than
24 hours’
notice
[2]
.
I agree that it is incumbent on an attorney to contact the party on
whom a relief is to be sought and also alert that party of
an
intention to be in court. Most importantly to alert the judge on
urgent duty that the other party has been alerted. As pointed
out
above, none of the steps mentioned in
SAA
SOC supra
were taken by the applicant in
casu
.
On this ground alone, the order cannot be made final and or enforced
as it were. To my mind the order is defective.
[3]
Is
the third order interim or final?
[9]
Given
the view I take; this question is academic. However, since it was
argued before me, I shall deal with it. The third respondent
contends
that the order is interim in nature, whereas the applicant contends
that the order is final in nature. Ordinarily, given
the imperatives
of the principle
audi
alteram partem,
it
is inappropriate for a court of law to issue a final order on an
ex
parte
basis. Section 34 of the Constitution of South Africa
[4]
(the Constitution), provides that everyone has the right to have any
dispute that can be resolved by the application of law decided
in a
fair public hearing before a court.
[10]
In
terms of section 205 (3) of the Constitution, the objects of the
third respondent are to prevent, combat and investigate crime,
to
maintain public order, to protect and secure the inhabitants of the
Republic and their property, and to uphold and enforce the
law.
Therefore, the third respondent, without being ordered by a court of
law has a constitutional duty to enforce and uphold the
law. If for
any reason, the third respondent fails in its duties, a citizen of
the Republic who suffers damages as a result of
such a failure may
approach competent courts for a claim in damages.
[5]
Courts are empowered to direct constitutional bodies to carry out
their constitutional duties. In order to do so fairly, such bodies
ought to be afforded
audi
alteram partem
.
[11]
Ex facie
the
order, it is apparent that the urgent court issued final orders.
However, proper reading of the order suggests that the parties
cited
therein, the third respondent included, had a right to anticipate the
return day. Although the order refers to the first
respondent, the
third respondent also had a right to anticipate. I am mindful of the
fact that the order was drafted by counsel
and adopted by this court.
Certainly, counsel should have known that in an
ex
parte
application the court cannot
issue a final and definitive order.
[12]
In
Fishing
Touch 163 (Pty) Ltd v BHP Billiton Energy Coal SA Ltd
[6]
,
the
SCA had the following to say:
“
[13]
As indicated earlier in the judgment, the determination of this
appeal depends on a proper interpretation of the Preller J
order. The
starting point is to determine the
manifest
purpose of the order
.
In interpreting a judgment or order, the court’s intention is
to be ascertained primarily from the language of the judgment
or
order in accordance with the usual well-known rules relating to the
interpretation of documents. As in the case of a document,
the
judgment or order and the court’s reasons for giving it
must
be read as a whole in order to ascertain its intention.
See
Firestone
SA (Pty) Ltd v Genticuro AG
1977 (4) SA 298
(A)
.”
[13]
In understanding the obvious, it must
follow that the order was to operate until the return day. It could
not have been definitive
of the rights of the affected parties.
Therefore, the order was interim in nature. It may either be
confirmed once
audi alteram partem
is afforded or discharged. In any event, there is a litany of
disputed facts that cannot be resolved on the papers, the order is
incapable of being made final apart from the fact that it is moot.
The third order ought to be discharged with costs.
The
second order
[14]
The relevant issue here is whether the
first respondent is in contempt. Before I deal with the principles
applicable to contempt
applications, it behooves me to consider the
principle of trade unions accountability during a strike action.
[15]
As a
point of departure, it must be made clear that the right to strike is
an individual one. It accrues to an individual. Similarly,
the right
to demonstrate and picket is an individual one.
[7]
Therefore, by law, these individual rights may be curtailed if not
complaint. Differently put, if an individual fails to comply
with the
requirements of the law, the exercise of the right to strike and to
demonstrate
[8]
may be prohibited. The right to form and join a trade union is a
worker’s right
[9]
.
[16]
Equally,
every trade union has the right to determine its own
administration.
[10]
In realizing this right, a trade union is required by the Labour
Relations Act
[11]
(LRA) to adopt a constitution that meets certain requirements.
[12]
The adopted constitution must prescribe qualifications for and
admission to membership, establish the circumstances in which a
member will no longer be entitled to the benefits of membership and
provide for the termination of membership. Quintessentially
the
relationship between the trade union and its members is governed by
the constitution of the trade union. Trade unions owe a
duty of care
to their members. Once a trade union is registered, it becomes a body
corporate.
[13]
An individual may face civil legal proceedings for participating in
an unprotected strike or for conduct in contemplation or in
furtherance of an unprotected strike.
[17]
Since
a trade union is a body corporate, delictual principles of vicarious
liability find application in relation to its employees.
There is no
employer and employee relationship between the trade union and its
members. As to the principle of agency, before a
principal could be
held liable, it must be shown that the principal authorised and or
ratified the action.
[14]
A trade union is a collective bargaining representative and not an
agent.
[15]
[18]
Having
considered the above principles at a broad level, the question
relevant to this matter is whether the trade union is accountable
during a strike action and to what level? This is a difficult
question in itself. Accountability is a strong word with legal
connotations.
In my view, the guiding document would be the
constitution of a trade union. I am certain that most, if not all,
constitutions
of trade unions oblige their members to uphold the law,
particularly the LRA in this instance. However, it is not impossible
to
have errant members, hence wildcat strikes at times. Ordinarily,
trade unions must only call upon their members to participate in
a
protected strike action. Having made the call, to my mind, a trade
union has a duty in terms of its own constitution and the
Regulation
of Gatherings Act
[16]
to control its members participating in a protected strike.
[19]
The strike action of 18 January 2018
appears to have been a protected one. However, it is difficult for me
to appreciate such a
duty in a wildcat strike action. An employee who
participates in a wildcat strike action, breaches the constitution of
the trade
union he or she is belonging to and the law.
[20]
It is
common cause before me that as of 31 January 2018, the members
involved herein ceased to be members. Therefore, the umbilical
cord
has been severed. A trade union which servers an umbilical cord for
errant members acts accountably. Therefore, it must be
accepted that
the first respondent acted responsibly in this regard. However, the
issue here is with regard to the conduct of the
first respondent upon
receipt of the first court order. Strictly speaking this is not a
matter of seeking to find what the accountability
of a trade union
is. The first order has already pronounced on what the first
respondent should do to take accountability. The
applicant relied
heavily on the judgment of this court in
KPMM
Road & Earthworks (Pty) Ltd v AMCU
[17]
.
In the applicant’s submission, the authority is on all fours
with the present matter. I am partly in agreement with the
principles
espoused in that judgment and have no reason to depart therefrom. I
shall return to this judgment later. The first respondent
argued that
the judgment is distinguishable on the facts. In that judgment, the
learned Acting Justice Snyman said the following:
“
[62]
I am satisfied that in reality, all the first respondent did was to
convey the order to its members, tell them to comply, and
then washed
its hands of what may happen thereafter…”
[21]
Counsel
for the first respondent submitted that such was not the case in this
matter. The first order required the first respondent
to take all
such steps to restrain its members from acting unlawfully as set out
in the order. When the order was issued, the first
respondent’s
official and head (Mr Luthuli Senior) was present. There is
overwhelming evidence littered in the founding affidavit
of Nadim
Hassam that the first respondent took no steps to act as ordered in
the first order. This was evidenced by the continuation
of the
unlawful activity. The first respondent disputes this evidence.
Clearly, there is a dispute of fact which would require
application
of the
Plascon-Evans
rule.
[18]
The first respondent’s witness testified that after the order,
the officials discussed the first order with the shop stewards
of the
first respondent. The shop stewards undertook to inform the members.
Further, the evidence is that on 23 January 2018, the
terms of the
order were fully explained to the members and they were specifically
requested to desist from any unlawful activities
referred to in the
court order. No indication was given that the members would not
observe the court order.
[19]
This evidence is in turn disputed by the applicant in the replying
affidavit.
[20]
[22]
I am
not satisfied that the version of the first respondent is real and
genuine. It is more like a bare denial. If they did as they
allege,
the actions would not have continued. On the other hand, the version
of the applicant is supported by a video footage and
photographs. The
first respondent did not request that the issue (whether they
complied with the court order) be referred to oral
evidence. I
therefore decide this issue on the strength of the facts as asserted
by the applicant
[21]
.
My conclusion therefore is that the first respondent failed to comply
with the first order.
[23]
What
then follows is the question: Is the first respondent guilty of
contempt though? This is the question I am turning to now.
The
requisites of a contempt order are (a) the existence of the order;
(b) the order must be duly served on, or brought to the
notice of the
contemnor; (c) there must be non-compliance with the order; and (d)
the non-compliance must be willful and
mala
fide
.
It was held in
Pheko
v Ekurhuleni Municipality (No 2)
[22]
that while the courts do not countenance disobedience of judicial
authority, it needs to be stressed that contempt of court does
not
consist of mere disobedience of a court order, but of the
contumacious disrespect of judicial authority. All what is required
is evidence that the contemnor is obstinately disobedient or
rebellious. It ought to be shown that on the balance of probabilities
the non-compliance was born of willfulness and
mala
fide
.
[24]
As to
the standard of proof, the applicant before is seeking an imposition
of a fine and as such, it must prove beyond reasonable
doubt that the
first respondent is guilty of contempt.
[23]
[25]
A further difficulty in this matter is that
the first respondent is a body corporate and it is incapable of
acting on its own. It
acts through its officials. None of the
relevant officials are cited in this application. In these papers,
serious allegations
are made against certain officials of the first
respondent, but they are not before me. In
Matjhabeng
,
the court per Nkabinde ADCJ, had the following to say:
“
[76]
The next issue for determination is whether the non-compliance on the
part of Mr Lepheana was willful and
mala
fide.
The
reason for these requirements lies in the nature of the contempt
proceedings and its outcome. In order to give rise to contempt,
an
official’s non-compliance with the court order must be willful
and
mala
fide
.
In general terms, this means that the
official
in question
,
personally
,
must deliberately defy the court order.
Hence,
where a public official is cited for contempt in his personal
capacity, the official himself or herself, rather than the
institutional structures for which he or she is responsible must have
willfully or maliciously failed to comply. As the Supreme
Court of
Appeal has held “there is no basis in our law for orders for
contempt to [be] made against officials of public bodies,
nominated
or deployed for that purpose, who are not themselves personally
responsible for the willful default in complying with
a court order
that lies at the heart of contempt proceedings.”
[26]
At
the heart of contempt proceedings lies the fact that someone capable
of carrying into effect a court order must personally disobey
the
judicial authority. For that reason, I am unable to agree with the
learned Acting Justice Snyman in the
KPMM
matter, where he held that a trade union was in contempt. In my view,
it is one thing to say that at a general level a trade union
has
certain duties and obligations and it is another to say a trade union
is guilty of contempt. I do not see how a trade union
could commit a
crime, let alone a civil crime of contempt, as a legal entity
[24]
.
To my mind, it seems ineffective to make orders against trade unions
as entities as opposed to the relevant officials themselves.
If an
order is made against an entity, how could it be established that
there was willfulness and
mala
fide
in
the case of non-compliance? In my view it is just impossible.
[27]
In
this matter, the first order was made against the trade union, in its
capacity as such. A trade union as an entity is incapable
of taking
steps and thus cannot be “personally” liable. In
Fawu
v
In2Food
(Pty) Ltd
[25]
the Labour Appeal Court held that 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.
[28]
I do accept that the first respondent was
directed to take steps, the question that crops in my mind is how
would a juristic person
take steps? If the order had directed the
President of the trade union or a particular official, it would have,
in my view, been
an effective order and if not followed, the
willfulness and
mala fides
of the President or the named official would be questioned and tested
in order to conclude that there was contempt. The High Court
of Free
State in the
Matjhabeng
matter before it reached the constitutional court had said the
following:
[29]
A municipality is under a constitutional duty to comply with court
orders and to lead by example.
Upon
non-compliance of a court order, complaints of contempt may be
proceeded with against the functionaries of the Municipality
responsible for ensuring compliance with the order.
[29]
However, in rejecting the above finding,
the Constitutional court concluded thus:
“
[103]
Bearing in mind that the persons targeted were the officials
concerned – the Municipal Manager and Commissioner in their
official capacities – the non-joinder in the circumstances of
these cases, is thus fatal
.
Both Messrs. Lepheana and Mkhonto should have been cited in their
personal capacities – by name – and not in their
nominal
capacities. They were not informed, in their personal capacities, of
these cases they were to face, especially when their
committal to
prison was in the offing.”
[30]
The above statement buttresses the point
that contempt in its nature is to be committed personally. In this
matter, the officials
complained of should have been cited as
parties. Possibly, their defences would have been that there is no
order against them.
However, if it is established beyond reasonable
doubt that they were responsible for ensuring compliance, their
defence may be
defeated.
[31]
In
conclusion, I do accept that the LAC in
Fawu
supra
found merit in the thesis that a trade union, as a matter of
principle has a duty to curb unlawful behaviour by its members, but
in my view, such does not imply that a trade union is capable of
being found guilty of contempt. Its officials yes, but they must
be
cited and evidence must be led to demonstrate personal disobedience.
The LAC after endorsing the sentiments of Rycroft A stated
that upon
that platform alone a case cannot be build.
[26]
[32]
Might I add that even in instances, like
here, where a trade union as an entity has been ordered to do
something, such an order
would still require officials to do
something. And if the officials who are responsible to act in terms
of the court order fail,
such officials ought to be cited personally.
The
first order
[33]
The individual employees did not oppose the
confirmation of the rule. However, it seems moot to confirm the rule
in so far as they
are concerned. The only live issue in respect of
them is costs. On 31 January 2018, they ceased to be members of the
first respondent.
Around June 2018, the conduct they were interdicted
for ceased to continue. Since the duty of this court is to issue
effective
orders, confirming this order would offend the doctrine of
effectiveness.
[34]
It was necessary for the applicant to have
approached this court on the 22 June 2018. Clearly, the first
respondent was unhelpful
prior to the approaching of the court and
actually was unreasonable in its opposition of the order. At issue
was not the protection
of the strike action but the unlawful conduct
of the members participating in a protected strike action. For these
reasons, even
if I am minded to discharge the rule on the basis of
mootness, the dictates of fairness drive me to the conclusion that a
cost
order in respect of this order must be made.
[35]
Owing to the fact that on the return day
all the orders were dealt with as one, it may be difficult and
inappropriate to mulct the
first respondent and the individual
members with all the costs associated with this matter. The most
appropriate thing to do is
to apportion the costs. In my view, the
first respondent and the individual employees should jointly and
severally be liable for
33% of the taxed or settled party and party
costs of the applicant.
[36]
For all the reasons set out above, I am
unable to confirm the orders.
[37]
In the results I make the following order:
Order
1
The first order is hereby discharged and the individual respondents
together with the first respondent are jointly and severally
liable
to pay 33% of the applicant’s taxed or settled party and party
costs.
2
The contempt application is dismissed with no order as to costs.
3
The third order is hereby discharged and the applicant to pay the
third respondent’s costs.
_______________________
GN Moshoana
Judge
of the Labour Court of South Africa
.
Appearances
For the Applicant:
Advocate L Franck.
Instructed by:
S T Attorneys, Johannesburg.
For
the 1
st
Respondent: Advocate F A
Darby.
Instructed
by:
Mathopo Attorneys, Johannesburg.
For
the 3
rd
Respondent: Advocate M Mthombeni
Instructed
by:
State Attorney, Johannesburg
[1]
Case number 2015/33205 delivered on 17 December 2015
[2]
See paragraph 26 of the judgment.
[3]
See De Jager v Heilbron & others 1947 (2) SA 415 (W).
[4]
Act 108 of 1996.
[5]
Life Esidimeni arbitration by the retired Deputy Chief Justice
Moseneke.
[6]
[2012] ZASCA 49
(30 March 2012)
[7]
Section 17 of the Constitution.
[8]
See SATAWU v Garvis and others [2012] JOL 28986 (CC).
[9]
Section 23 (2) (a) of the Constitution.
[10]
Section 23 (5) (a) of the Constitution.
[11]
66 of 1995, as amended.
[12]
Section 95 (1) (b) of the LRA.
[13]
Section 97 (1) of the LRA.
[14]
See Mondi Ltd v CEPPAWU 2005 ILJ 1458 (LC)
[15]
See S A Post Office v CWU [2010] 1 BLLR 84 (LC)
[16]
205 of 1993.
[17]
[2018] 39 ILJ 609 (LC).
[18]
See
KPMM
at paras 10-15.
[19]
See paragraphs 32-39 of the Founding Affidavit.
[20]
See Replying Affidavit paragraphs 29-35
[21]
See Rail Commuters Action Group & others v Transnet
[2004] ZACC 20
;
2005 (2) SA
359
(CC) at para 53.
[22]
2015 (5) SA 600 (CC)
[23]
See Matjhabeng Local Municipality v Eskom Holdings Ltd and others
[2017] ZACC 35
at para 67
[24]
In Telegram Newspaper Company v Commonwealth, 172 Massachusetts 294,
the Chief Justice said: “We think that a corporation
may be
liable for certain offences of which specific intent may be a
necessary element…See Mousell Bros Ltd v London and
North
Western Railway Co
[1917] 2 KB 836.
[25]
[2014] 35 ILJ 2767 (LAC).
[26]
Paragraph 18 of the judgment