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[2018] ZALCJHB 334
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Calgan Lounge (Pty) Ltd v National Union of Furniture and Allied Workers Union of South Africa (NUFAWSA) and Others (J2648/18) [2018] ZALCJHB 334; (2019) 40 ILJ 342 (LC); [2019] 4 BLLR 393 (LC) (9 October 2018)

THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable
Case
no: J 2648 / 18
In
the matter between:
CALGAN LOUNGE (PTY)
LTD
Applicant
and
NATIONAL UNION OF
FURNITURE AND ALLIED
WORKERS UNION OF SOUTH
AFRICA (NUFAWSA
First
Respondent
INDIVIDUAL RESPONDENTS
LISTED IN
ANNEXURE
“A”
Second
to Further Respondents
ROY
MASHALA
Third
Respondent
MASHUDU
MATSHEVHA
Fourth
Respondent
ECONOMIC FREEDOM
FIGHTERS
Fifth
Respondent
Heard
:
20 September 2018
Delivered
:
9 October 2018
Summary:
Strike
–
complete
failure to comply with section 64 of the LRA – strike
persisting after interim order granted – strike remained

unprotected –
rule
nisi
confirmed
Strike
– involvement of political party in the instigating and driving
of strike – political party has no
locus
standi
in the
workplace – inappropriate for political party to become
involved in workplace issues especially where the workplace
has
recognized union – conduct of political party unacceptable
Costs
– conduct of respondents without any cause or justification –
conduct also unlawful – costs order justified
Interdict
– final order – principles considered – clear right
shown and other requirements satisfied – interim
order
confirmed with costs
JUDGMENT
SNYMAN, AJ
Introduction
[1]
This
matter arose from an urgent application brought by the applicant on 6
August 2018 to interdict strike action embarked upon
and/or
instigated by the respondents, which application was brought in terms
of Section 68 of the LRA.
[1]
The application came before me on 7 August 2018. Although the
respondents did not file any opposing affidavits, a large number
of
the individual respondents attended at Court, together with the third
and fourth respondents.
[2]
In
the hearing on 7 August 2018, the third and fourth respondents each
asked to address the court, and I afforded them the opportunity
to do
so. In addressing me, it became apparent that the third and fourth
respondents, on behalf of the fifth respondent, were driving
the
strike action of the individual second to further respondents at the
applicant, and had made no attempt to ensure compliance
with the LRA.
I was in fact informed that no matter what this court may order, the
strike action would continue until the applicant
had acceded to all
demands. I explained to the third and fourth respondents, with the
individual respondents present in court,
that a failure to comply
with an order of this court would constitute contempt of court and
could lead to severe penalties.
[3]
Having
regard to the submissions made in Court, and considering what was
contained in the applicant’s application, I was satisfied
that
the applicant had made out a proper case for interim relief, condoned
any non-compliance with Section 68(2) of the LRA, and
issued a
Rule
Nisi
with a return date of 20 September 2018, calling on the respondents
to show cause why the following final order should not be granted:
‘
3.1
The ongoing strike action, which the Second Respondents are currently
embarking on, and fully described in the affidavit annexed
to the
notice of motion, is declared to constitute an unprotected strike
which is not in compliance with the relevant provisions
of
section 64
of the
Labour Relations Act 66 of 1995
;
3.2
The Second, Third and Fourth Respondents are interdicted from
blocking the entrance and egress of the Applicant’s premises

situated at 10 Martin Street, Selby, Johannesburg, continuing with,
participating in, instigating or promoting the unlawful and

unprotected go-slow / strike action;
3.3
The Second, Third and Fourth Respondents are interdicted and
restrained from acting in an unlawful manner whilst participating
in
the unlawful strike;
3.4
The Second, Third and Fourth Respondents are interdicted and
restrained from unlawfully interfering with or obstructing the

conduct of the business of the Applicant;
3.5
The Second, Third and Fourth Respondents are interdicted and
restrained from blockading or obstructing the entrances to the

Applicant’s premises and hindering the entrance and exit of
vehicles from the Applicant’s premises;
3.6
The Second, Third and Fourth Respondents are interdicted and
restrained from inciting the Individual Respondents and other
employees and other individuals from participating in the unprotected
strike action or any other unlawful conduct;
3.7
The Third, Fourth and Fifth Respondents are interdicted from
unlawfully interfering with the employment relationship between
the
Applicant and the Second to Further Respondents and conducting any
unlawful activities outside the premises of the Applicant;
4. The
Respondents shall pay the costs hereof, jointly and severally, the
one paying the other to be absolved.’
[4]
I
also explained to the respondents that they were entitled to
anticipate the
Rule
Nisi
should they wish to do, and explained what they needed to do if they
wished to oppose the application on the return date. I urged
the
respondents to take proper legal advice.
[5]
The
matter came before me again on the return date on 20 September 2018.
A number of the respondents again attended at court, and
this time,
the respondents were represented by Mr Stephen Tawana, an attorney.
But once again, no answering affidavit was filed
by the respondents.
Mr Tawana indicated that the respondents would oppose the matter
without filing an answering affidavit.
[6]
The
applicant sought to introduce a supplementary affidavit in the
application, in order to give particulars of further conduct
of the
respondents after I granted the
Rule
Nisi
.
Mr Tawana objected to the introduction of the supplementary
affidavit, and in the interest of finally resolving the matter,
advocate
Snider, representing the applicant, indicated that the
applicant withdraws the supplementary affidavit, and would move for a
final
order based only on the application as filed. I shall therefore
have no regard to the supplementary affidavit in deciding this
matter.
[7]
The
applicant sought confirmation of the entire
Rule
Nisi
.
The respondents, in a roundabout way as will be discussed hereunder,
seemed to suggest that the
Rule
Nisi
be discharged. Since the applicant was seeking final relief, the
applicant was required to satisfy three essential requirements,

being: (a) a clear right; (b) an injury actually committed or
reasonably apprehended; and (c) the absence of any other satisfactory

remedy.
[2]
[8]
Having
considered all the pleadings filed, and after hearing argument by the
parties, I made the following order on 20 September
2018:
‘
1.
The rule nisi dated 7 August 2018 is confirmed in its entirety.
2. The
Respondents shall pay the costs of the Applicant’s appearance
on 20 September 2018.
3. All
costs ordered in terms of this order and the rule nisi of 7 August
2018 shall be paid by the Respondents jointly and severally,
the one
paying the other to be absolved.
4.
Written reasons for this order will be handed down on 9 October
2018.
’
[9]
This
judgment now constitutes the written reasons referred to in paragraph
4 of my order,
supra
.
Background
facts
[10]
For
the sake of convenience in this judgment, I will refer to the second
to further respondents as ‘the employees’,
the third
respondent as ‘Mashala’, the fourth respondent as
‘Matshevha’ and the fifth respondent as the
‘EFF’.
[11]
The
applicant conducts the business as a manufacturer of furniture,
employing some 604 employees. Its customers are furniture retailers.
[12]
On 28
June 2018, representatives from the EFF arrived at the applicant’s
premises, without any prior indication. It held a
meeting with
several of the employees during lunch time, in the street outside the
applicant’s premises. This meeting was
clearly the catalyst for
a letter from the EFF which was then sent the following day, 29 June
2018, to the applicant. The letter,
written on an EFF letterhead and
inter
alia
signed by Matshevha, recorded that the EFF had been ‘mandated’
by the employees to intervene and that a memorandum
containing a
‘barrage’ of demands and grievances would be presented to
the applicant on 3 July 2018.
[13]
In
response, the applicant sought to rather address this issue directly
with all its employees, placing a notice on the company
notice boards
on 2 July 2018 urging employees to follow the prescribed procures and
approach the relevant institutions established
by the LRA, should
they have difficulties.
[14]
The
EFF representatives then arrived at the applicant’s premises on
3 July 2018, and when the employees broke for tea at 10h00,
they
gathered with the EFF in the street outside the premises, and only
returned to work at 12h54, despite tea ending at 10h20.
In the course
of this meeting, the employees were addressed over a loudhailer by
inter
alia
Mashala. At the conclusion of this meeting, a memorandum was
presented on to the CEO of the applicant, Cecil Kegan (‘Kegan’).
[15]
The
memorandum itself was again typed on an EFF letterhead and clearly
prepared well beforehand, encompassing some nine typed pages.
In the
memorandum, the applicant was accused of exploiting and victimizing
the employees, and subjecting the employees to ‘appalling
and
unethical’ working conditions. Much of the language used in the
memorandum was inflammatory, and contained a plethora
of the kind of
political rhetoric conveyed by the EFF in the public sphere on a
daily basis. However, and in general terms, it
is stated that the EFF
would ‘unashamedly’ take up the plight of the employees
who was allegedly suffering an injustice
in the workplace at the
hands of the applicant.
[16]
I
interpose to mention, at this stage, that the applicant’s
workplace is in fact organized, with the first respondent being
the
recognized and majority representative trade union in the applicant,
and with whom the applicant had an established collective
bargaining
relationship. In the memorandum, the EFF accuses the first respondent
of collaborating with the applicant to advance
the interests of the
applicant, to the detriment of the workers that it is supposed to
protect. It was further said that the first
respondent was forced on
the employees in contravention of
section 23
of the LRA.
[17]
What
is also contained in the memorandum is a complaint about the
applicant’s head of human resources, one Don Williams, who
it
is said exploits his powers to marginalize employees and to dismiss
employees without cause, referring to a recent example where
30
employees were dismissed. It is said that the applicant does not
comply with safety standards and the ‘National Occupational

Safety Act’
[3]
. There is
an accusation of female employees being required to exchange sex for
jobs. Further individual complaints/demands include
the staff not
having a canteen, labour brokers being banned, unfair deductions
being made from employees’ salaries, employees
being forced to
make up for lost production when it was not their fault, and a
plethora of other issues. The LRA is called a ‘flawed

regulation’.
[18]
The
memorandum then records a number of actual demands, including an
issue resolving the wage gap / living wage and equal pay for
equal
work, permanent positions, ‘discontinuation’ of the
relationship with the first respondent, compliance with the
BCEA,
reimbursement of money deducted from employees’ salaries,
reinstatement of employees that had been dismissed, development
of
skills programs, and terminating exploitative and unjust policies.
[19]
The
applicant is then given seven days by the EFF to comply, with the
following being recorded as a concluding statement in the
memorandum:
‘
However,
the EFF will not take kind, celebrate nor welcome the defiance of
this memorandum which will result in intensifying on
the next P.O.A.
(mass protest action) …’ (sic)
[20]
The
applicant instructed its attorneys to respond to this memorandum. In
a letter dated 10 July 2018, it is written that the applicant

undertook to investigate the serious allegations contained in the
memorandum. It was however specifically stated that the EFF was
not a
registered trade union and lacked the necessary legal status and
entitlement to engage with the applicant on workplace related
issues.
The attention of the EFF was also drawn to the fact that there was a
majority and recognized trade union in the applicant
with whom the
applicant already had a relationship and with whom workplace disputes
were effectively resolved. The following is
said in conclusion:
‘…
any
employee that believes they have genuine and unresolved concerns, are
invited to take these matters up in accordance with our
client’s
established policies and procedures, or through a trade union, or
follow the established and recognised legal procedures
as prescribed
by the
Labour Relations Act …’
[21
]
The
EFF, undeterred by the response from the applicant’s attorneys,
answered on 12 July 2018. The EFF labelled the answer
from the
applicant’s attorneys nonsensical. Some of the content of this
response of the EFF is rather insulting. But it is
important to
highlight the following statement made:
‘…
We
will defend that with conviction and undeterred while in pursuit of
justice for the abused, victimised and exploited employee’s
at
Calgan. … under no circumstances shall we allow ourselves to
be undetermined and dedicated upon by an individual, company
or an
organization that promotes and protects unethical business practices
at the expense of the workers …’
(sic)
The
same demands as before are then also repeated in this response.
[22]
In
the interim, and as from 9 July 2018, the applicant started
experiencing a go-slow on its manufacturing line. Also, the
applicant’s
management started experiencing what it called
‘negative responses’ from the employees, which included
refusing to
obey instructions and claiming the EFF would protect
them.
[23]
On 20
July 2018 EFF escalated its action, with what it called a
‘notification of intent’, in which it is stated that
that
because of the applicant’s ‘defiance’ of the
memorandum, the EFF informs the applicant that it would be

intensifying its next program of action, supported by a new mandate
of the employees.
[24]
In
attempt to try and restore some semblance of normality, the applicant
sought the assistance of the first respondent. At the request
of the
applicant, the first respondent’s official, Bashier de Klerk
(‘de Klerk’), came to the applicant’s
premises on
27 July 2018 to address the employees, together with the first
respondent’s shop stewards. He was shouted down,
and forced to
leave the premises at about 10h30. The employees followed de Klerk
outside, and remained there until 11h20, when
Mashala and Matshevha
arrived. The employees were briefed by Mashala and Matshevha that
they would be participating in a march
organized by the EFF on 3
August 2018, and after being addressed, the employees only returned
to work some time later that afternoon,
and therefore for most of the
day did not work.
[25]
On 27
July 2018, the applicant notified the employees that their conduct on
the day was unlawful and that the no-work-no-pay principle
would be
applied. On 31 July 2018, the applicant wrote to the chief whip of
the EFF, Mr Floyd Shivambu, requesting his urgent intervention,
but
no response or intervention was forthcoming.
[26]
In
the founding affidavit, the applicant has set out an unchallenged
case of how this unlawful conduct was causing it prejudice,
which
included an inability to fill already scarce orders, and even having
to implement short time for all the employees on 1 August
2018.
[27]
On 1
August 2018, the employees downed tools completely, and proceeded to
protest by singing and dancing inside the premises. The
applicant’s
COO, Larry Bass (‘Bass’) attempted to address them, but
this was fruitless, and Bass was instead
met with further demands
that Ryan (one of the managers accused of being a sex pest) must go,
the union (first respondent) must
go, and a monthly meeting must be
held with employees to address their issues. The work stoppage
persisted throughout the day of
1 August 2018, with a number of
instances of damage to company property and intimidation occurring.
Later on that day, the employees
went into the street to continue
their protest there, with EFF representatives present.
[28]
On 3
August 2018, the protest march called by the EFF then happed, with
the employees participating. It was overheard that employees
were
asked to have their money ready to pay over to the EFF. The
employees’ refusal to work persisted until the time this

application was brought to Court, and continued even when it was
filed.
[29]
When
this matter came before me on 7 August 2018, and as touched on above,
Mashala and Matshevha attended in Court. Each of them
asked to
address the Court, but never filed any process or affidavits. I gave
both of them an opportunity to each address the Court,
and of concern
to me was the fact that despite what was contained in the applicant’s
application, they indicated that no
matter what, the employees would
continue to refuse to resume their duties, as supported by the EFF,
irrespective of what this
Court may order. The argument was that they
had the constitutional right to do this, no matter what the LRA may
provide.
[30]
When
the matter came before me again on the return date on 20 September
2018, Mr Tawana indicated that the employees had been dismissed
by
the applicant, and that this Court should not only refuse the relief
sought by the applicant, but protect the rights of the
employees by
immediately reinstating them and compelling the applicant to
negotiate with them about their demands. As touched on
above, none of
this was contained in an affidavit. There was clearly no indication,
even from the bar, that the employees and the
EFF, Mashala and
Matshevha, had any intention of resuming or causing the employees to
resume their duties, and if anything, they
were all resolute in
persisting with their current course of action.
[31]
The
aforesaid constituting the relevant factual matrix, I need only
further mention that the issues of urgency and compliance with
the
notice provisions as contemplated by
Section 68(2)
of the LRA had
been already disposed of when the
Rule
Nisi
referred to above was granted, I need not dwell on the facts relating
to this any further.  I will therefore turn directly
to the
applicant’s prayer for final relief, starting with a
consideration of the issue of a clear right.
The
issue of a clear right
[32]
There
can be no doubt that the employees had embarked upon both a cessation
and retardation of work.
[4]
They
commenced this conduct / action firstly with a partial retardation of
work in the form of a go-slow, as from 9 July 2018.
This escalated
into a complete work stoppage as from 1 August 2018, which continued
to persist until even after the
Rule
Nisi
was granted, and still remained live when this matter was heard on
the return date.
[33]
The
reason for this retardation and then total cessation of work was
related to a number of demands which I shall try and categorise
as
simply as possible. Firstly, a number of demands included the
resolution of grievances relating to alleged victimization,
discrimination
and sexual harassment of employees. Secondly, further
demands were the refund of alleged unlawful deductions, the
reinstatement
of dismissed employees, the removal of a manager, the
termination of the relationship with the majority union and the
banning of
labour brokers. A final issue raised is a compliant that
the applicant was not complying with occupational health and safety
and
was subjecting the employees to poor working conditions. The
applicant was given seven days to adhere to these demands.
[34]
In
section 213
of the LRA, a strike is defined as:
‘…
the
partial or complete concerted refusal to work, or the retardation or
obstruction of work, by persons who are or have been employed
by the
same employer or by different employers, for the purpose of remedying
a grievance or resolving a dispute in respect of any
matter of mutual
interest between employer and employee …’
What
happened in this case falls squarely within the ambit of this
definition.
[35]
Accordingly,
there can be no doubt that the employees were embarking upon strike
action as contemplated by chapter IV of the LRA,
which strike action
persists to date.
[36]
Further,
there equally can be no doubt that this strike action is unprotected
as contemplated by
section 68
of the LRA.
[5]
Firstly, and immediately, none of the prescribed procedures as
required by
section 64
of the LRA have been followed. There has been
no referral of any of demands made to conciliation, and there has
been no strike
notice, thus rendering the strike unprotected.
[6]
[37]
When
regard is had to the demands themselves, there are all the kind of
demands that simply cannot legitimately form the subject
matter of
protected strike action. All of the demands relate to issues that are
capable of being determined and/or resolved by
way of adjudication or
arbitration, either in terms of the LRA, or in terms of a number of
other available employment statutes.
[7]
Also, some of the demands are simply unlawful. It is trite that to
simply demand the removal of a member of management without
proper
cause and fair process is an unlawful demand,
[8]
and certainly to demand from an employer to simply in effect expel a
majority recognized trade union flies in the face of the right
of
freedom of association and chapter III of the LRA.
[9]
This kind of demand relating to the first respondent can only be seen
as anti-union activity which is expressly prohibited by the
LRA.
[10]
[38]
Because
the strike action is clearly unprotected, and as stated above still
persists, the applicant has demonstrated a clear right
to the relief
sought, insofar as it concerns the work stoppage / strike itself.
[39]
This
then only leaves the issue of the unlawful conduct of the employees,
the EFF, the employees, Mashala and Matshevha, which is
part of the
relief afforded to the applicant in the
Rule
Nisi
.
I am equally satisfied that the applicant has demonstrated a clear
right to the relief sought in this regard. Where it comes to
the
conduct of employees when committing acts of intimidation,
obstruction and blockading of premises, and damage to company
property,
the situation is not controversial because this Court has
made it clear that such conduct is simply not acceptable and has no
place
in our employment law dispensation.
[11]
[40]
But
it is where it comes to the involvement of the EFF and its two
representatives, Mashala and Matshevha, there are several issues
that
need to be addressed. There can be no doubt, on the evidence, that
these respondents were directly involved in, if not the
instigators
of, all the events that followed giving rise to this matter. All the
correspondence to the applicant were written on
EFF letterheads, and
it was made clear that it was the EFF that was championing the cause
of the employees, so to speak. Fortunately,
and in this case, the
applicant was sufficiently prudent in actually joining these parties
as respondents to the proceedings, and
seeking relief against them
directly.
[12]
[41]
The
first question that must be asked is what was the EFF doing getting
involved in workplace issues in the first place, especially

considering that the applicant’s workplace is organized with
the first respondent as majority representative and recognized
trade
union? The simple answer has to be that the EFF has no business in
doing so. It is not a registered trade union. The deliberate
and
specific design of the LRA is to designate the task of dealing with
workplace disputes and grievances to employers’ organisations,

trade unions and workplace forums.
[13]
There is no place in this structure for the involvement of political
parties. In fact, it is my view that the practicing of any
form of
politics, be it under the guise of protecting employee rights or
other socio-economic aspirations, in the workplace, is
an untenable
proposition.
[14]
The workplace
should be free of these kind of influences. This is evident from the
purpose of LRA, defined in
section 1
as follows:
‘
The
purpose of this Act is to advance economic development, social
justice, labour peace and the democratisation of the workplace
by
fulfilling the primary objects of this Act, which are-
(a)
to
give effect to and regulate the fundamental rights conferred by
section 23 of the Constitution of the Republic of South Africa,
1996
…
(c)
to
provide a framework within which employees and their trade unions,
employers and employers' organisations can-
(i)
collectively
bargain to determine wages, terms and conditions of employment and
other matters of mutual interest; and
(ii)
formulate
industrial policy; and
(d)
to
promote-
(i)
orderly
collective bargaining;
(ii)
collective
bargaining at sectoral level;
(iii)
employee
participation in decision-making in the workplace; and
(iv)
the
effective resolution of labour disputes.
’
[42]
What
is clear from the memorandum of grievances submitted by the EFF to
the applicant, is that it reads more like a political manifesto
than
a genuine grievance designed to resolve workplace grievances and
disputes. It even takes issue with the legitimacy of the
LRA as a
regulatory measure. The approach adopted by the EFF is that the
Constitution entitles the EFF to conduct itself as it
did in this
case. It is sadly mistaken in this respect. It is by now trite law
that direct reliance on the Constitution is not
permissible where
there is a specific stature regulating the constitutional right. In
this case, the rights under section 23 of
the Constitution are
regulated by the LRA and other related employment law statutes, and
it is incumbent and prescribed that all
the provisions of these
statutes must be complied with in pursuit of these rights. The
Constitution thus lends no support for the
EFF to have become
involved in this matter in the first place. As said in
SA
National Defence Union v Minister of Defence and Others
[15]
:
‘
Accordingly,
a litigant who seeks to assert his or her right to engage in
collective bargaining under s 23(5) should in the first
place base
his or her case on any legislation enacted to regulate the right, not
on s 23(5). If the legislation is wanting in its
protection of the s
23(5) right in the litigant's view, then that legislation should be
challenged constitutionally. To permit
the litigant to ignore the
legislation and rely directly on the constitutional provision would
be to fail to recognize the important
task conferred upon the
legislature by the Constitution to respect, protect, promote and
fulfil the rights in the Bill of Rights.’
[43]
Trade
unions must be registered under the LRA, for good reason. It ensures
that such institutions fulfil the duties as prescribed
by the LRA,
and gives effect to its primary objectives. Registration places trade
unions under a number of regulatory provisions
and placed them trade
under the supervision of the Registrar of Labour.
[16]
The penalty for non-compliance could be deregistration in the case of
serious contravention.
[17]
It
also places such institutions under the supervision of this
Court.
[18]
By seeking to
assume this role which is reserved for trade unions under the LRA,
the EFF in effect bypasses all these regulatory
provisions that trade
unions must comply with. This can never be what the legislature had
intended when seeking to regulate the
rights under section 23 of the
Constitution by way of the LRA. In writing for the majority in
National
Union of Public Service and Allied Workers on behalf of Mani and
Others v National Lotteries Board
[19]
,
Zondo J (as he then was) held as follows:
‘
Earlier
I referred to every trade union's right in s 23(5) of the
Constitution 'to engage
in
collective bargaining' and the fact that the LRA was enacted to give
effect to the rights in s 23 of the Constitution. About
collective
bargaining it has
been
said:
'[B]y
bargaining
collectively with organized labour, management seeks to give effect
to its legitimate expectation that the planning of
production,
distribution, etc should not be frustrated through interruptions of
work. By bargaining collectively
with
management, organized labour seeks to give effect to its legitimate
expectations that wages and other conditions of work should
be such
as to guarantee a stable and adequate form of existence and has to be
compatible with the physical integrity and moral
dignity of the
individual, and also the job should be reasonably secure. This
definition is not intended to be exhaustive. It is
intended to
indicate (and this is important for the law) that the principal
interest of management
in
collective bargaining
has
always been the maintenance of industrial peace over a given area and
period, and that the principal interest of labour has
always been the
creation and the maintenance of certain standards over a given area
and period, standards of distribution of work,
of rewards, and of
stability of employment.'
As
to
what
collective bargaining entails, it has also been said:
'By
collective bargaining
we
mean those social structures whereby employers (either alone or in
coalition with other employers) bargain with the representatives
of
their employees about terms and conditions of employment, about rules
governing the working environment (eg the ratio of apprentices
to
skilled men) and about the procedures that should govern the
relations between unions and employer.
Such
bargaining is called "collective" bargaining
because
on the workers' side the representative acts on behalf of a group of
workers.'
In
chapter III the LRA seeks to give effect to trade unions' and
employers' constitutional right to
collective
bargaining
…
’
[44]
What
the EFF did in this case was to undermine orderly collective
bargaining and dispute resolution, which are cornerstones of the
LRA.
As an employer, the applicant is entitled to expect it employees to
comply with these objectives of the LRA when seeking to
resolve any
disputes they may have with the applicant as employer. And for the
EFF to simply negate all of this based on some misguided
view of what
the Constitution allows it to do, is simply unacceptable, and cannot
be permitted. The applicant specifically, in
writing, warned the EFF
that this course of action was not permitted in law, but still the
EFF pressed on nonetheless. In this
regards, it can be hardly better
said than the following
dictum
in
Gcaba
v Minister for Safety and Security and Others
[20]
:
‘
However,
another principle or policy consideration is that the Constitution
recognizes the need for specificity and specialisation
in a modern
and complex society under the rule of law. Therefore, a wide range of
rights and the respective areas of law in which
they apply are
explicitly recognized in the Constitution. Different kinds of
relationships between citizens and the state and citizens
amongst
each other are dealt with in different provisions. The legislature is
sometimes specifically mandated to create detailed
legislation for a
particular area, like equality,
84
just
administrative action (PAJA) and labour relations (LRA). Once a set
of carefully crafted rules and structures has been created
for the
effective and speedy resolution of disputes and protection of rights
in a particular area of law, it is preferable to use
that particular
system. This was emphasized in
Chirwa
by both Skweyiya J and Ngcobo J. …
’
[45]
If it
is true that the employees lost their jobs with the applicant because
of all of this, as suggested by Mr Tawana, then this
can be laid
squarely at the door of the EFF. It sent the employees down a path
they should never have been on, and involved itself
in matters that
did not concern it. The EFF is not entitled to organize employees in
the workplace in matters concerning the employment
relationship. If
it wants to do so, it must register as a trade union, and comply with
the LRA.
[46]
Finally,
as and was evident throughout this matter, the EFF has not given up.
It made this clear in its correspondence with the
applicant in any
event. I am satisfied that without the granting of final relief, the
EFF will simply continue with its current
course of action. The
applicant has therefore also made out a clear right to the relief
sought as against the EFF, and its two
representatives, Mashala and
Matshevha.
[47]
In
sum, the applicant has made out a proper case for final relief, where
it comes to the issue of a clear right. The applicant is
entitled to
expect and require its employees to comply with the LRA, insofar as
they may have disputes or grievances against the
applicant, which the
employees did not do, and have no intention of doing. The applicant
is equally entitled to expect the EFF
not be become involved in
matters that do not concern it, and in respect of which it simply has
no place in becoming involved in.
Other
requirements
[48]
As to
the other considerations of prejudice, balance of convenience and an
alternative remedy, I am also convinced that the applicant
has
satisfied these requirements. There can be no doubt that if the
current situation is allowed to continue, persist or in any
way
resurrect itself, the applicant would suffer severe financial
prejudice in an already difficult market place. It is difficult
for
the applicant to protect itself against such undue external
influences, which only compounds the prejudice. I may also add
that
there is a broader occurrence of prejudice, being the undermining of
the dispute resolution mechanisms under the LRA, which
leads to undue
instability in the employment environment and the reputational
prejudice associated with it. Prejudice, in my view,
is thus a
reality, and manifest.
[49]
As
opposed to this, the respondents are not left stranded if final
relief is granted. All that the employees always needed to do
is
simply to comply with the dispute resolution mechanisms prescribed by
the LRA to have their disputes and grievances properly
and lawfully
address, and there is no reason why this still cannot be the case. If
the employees were dismissed, as suggested,
they have the unfair
dismissal provisions under chapter VIII of the LRA available to them.
[50]
Where
it comes to the EFF and its functionaries, it simply should not stick
in its nose where it does not belong. Nothing in this
judgment can
serve to in any way prejudice the legitimate functions and activities
of the EFF, in the arena where it belongs.
[51]
Finally,
it is clear that the applicant has no alternative remedy available to
stop the unlawful, unacceptable and prejudicial conduct
as summarized
above. Only this Court came some to its assistance, by way of the
kind of application brought in this instance.
[52]
The
applicant has thus satisfied all of the other requirements in order
to justify the granting of the final relief sought.
Costs
[53]
This
then only leaves the issue of costs. Advocate Snider, for the
applicant, asked for an award of costs. Based on what happened
in the
earlier proceedings on  August 2018, I already made an interim
order that costs be awarded against the respondents,
and the
respondents had the opportunity to show cause why this should not be
the case. The respondents simply did not avail themselves
of this
opportunity, leaving this Court with in essence no other alternative
but to confirm this costs order.
[54]
But
the issue of costs does not end just there. Despite all that happened
earlier, the respondents still came to Court without filing
any
affidavits, and sought relief never prayed for and which in effect
once again bypasses all the dispute resolution processes
prescribed
by the LRA. In short, and despite all that has gone before, it is
simply more of the same. There is no prospect of any
kind of
rehabilitation on the part of the respondents. This also justifies a
costs order.
[55]
I
am alive to what the Constitutional Court said in
Zungu
v
Premier of the Province of KwaZulu-Natal and Others
[21]
where
it comes to costs orders in employment law disputes. But in this case
the applicant effectively engaged with the respondents
in order to
bring them to other insights, before launching these proceedings,
which they flouted. The applicant should not be left
entirely out of
pocket as a result of the respondents’ persistent unlawful
conduct.
[56]
In
any event, I have a wide discretion, under section 162 of the LRA,
where it comes to the issue of costs, and this is a case where
I
believe that a proper exercise of this discretion compels me to make
a costs order against the respondents.
Order
[57]
It is
for all the reasons above that I made the order that I did on 20
September 2018, as follows:
1. The
rule
nisi
dated 7 August 2018 is confirmed in its entirety.
2. The
Respondents shall pay the costs of the Applicant’s appearance
on 20 September 2018.
3. All
costs ordered in terms of this order and the
rule
nisi
of 7 August 2018 shall be paid by the Respondents jointly and
severally, the one paying the other to be absolved.
_____________________
Sean Snyman
Acting Judge of the
Labour Court
Appearances:
For the Applicant:
Advocate A Snider
Instructed by: Cliffe
Dekker Hofmeyr Inc Attorneys
For the Respondents:
Attorney Stephen Tawana
[1]
Labour Relations
Act 66 of 1995
.
[2]
Setlogelo
v Setlogelo
1914 AD 221
at 227;
V
& A Waterfront Properties (Pty) Ltd and Another v Helicopter and
Marine Services (Pty) Ltd and Others
2006 (1) SA 252
(SCA) at para 20;
Royalserve
Cleaning (Pty) Ltd v Democratic Union of Security Workers and Others
(2012) 33 ILJ 448 (LC) at para 2.
[3]
Presumably
referring to the
Occupational
Health and Safety Act 85 of 1993
.
[4]
See
National
Union of Mineworkers on behalf of Employees v Commission for
Conciliation, Mediation and Arbitration and Others
(2011)
32 ILJ 2104 (LAC) at paras 15 – 16.
[5]
Section 68(1)
renders strike action that does not comply with the provisions of
chapter IV of the LRA to be unprotected.
[6]
See
Section
64(1)(a)
and (b) of the LRA;
Putco
(Pty) Limited v Transport and Allied Workers Union of South Africa
(obo its members) and Another
[2015]
JOL 33221
(LAC) at para 54;
SAFCEC
obo members v NUM and Another
[2009] 11 BLLR 1104
(LC) at para 22
.
[7]
Section 65(1)(c)
reads: ‘
No
person may take part in a strike or a lock-out or in any conduct in
contemplation or furtherance of a strike or a lock-out
if- …
the issue in dispute is one that a party has the right to refer to
arbitration or to the Labour Court in terms of
this Act or any other
employment law …’. See also
CSS
Tactical (Pty) Ltd v Security Officers Civil Rights and Allied
Workers Union and Others
(2015)
36
ILJ
2764 (LAC) at paras
17;
Mawethu
Civils (Pty) Ltd and Another v National Union of Mineworkers and
Others
(2016)
37
ILJ
1851 (LAC) at para 19 and 21.
[8]
TSI
Holdings (Pty) Ltd and Others v National Union of Metalworkers of SA
and Others
(2006)
27 ILJ 1483 (LAC) at para 48.
[9]
Freedom
of association under the LRA specifically applies to trade unions –
see
section 4
of the LRA. See also the comments of the Court in
Association
of Mineworkers and Construction Union and others v Royal Bafokeng
Platinum Ltd and Others
(2018)
39 ILJ 2205 (LAC) at paras 24 – 26 in this regard.
[10]
See
section 5(2)(a)
of the LRA;
Safcor
Freight (Pty) Ltd t/a Safcor Panalpina v SA Freight and Dock
Workers
Union
(2013
)
34 ILJ 335 (LAC) at para 30.
[11]
See
National
Union of Food Beverage Wine Spirits and Allied Workers and Others v
Universal Product Network (Pty) Ltd: In re Universal
Product Network
(Pty) Ltd v National Union of Food Beverage Wine Spirits and Allied
Workers and Others
(2016)
37 ILJ 476 (LC) at para 37;
Tsogo
Sun Casinos (Pty) Ltd t/a Montecasino v Future of SA Workers Union
and Others
(2012)
33 ILJ 998 (LC) at para 13;
Verulam
Sawmills (Pty) Ltd v Association of Mineworkers and Construction
Union and Others
(2016)
37 ILJ 246 (LC) at para 15.
[12]
Compare to the
contrary
Universal
Product Network
(
supra
)
at para 42.
[13]
See
National
Union of Metalworkers of SA and Others v Bader Bop (Pty) Ltd and
Another
(2003)
24 ILJ 305 (CC) at paras 40 – 41.
[14]
See the comments
of Van Niekerk J in
Universal
Product Network
(
supra
)
at para 45.
[15]
(2007)
28 ILJ 1909 (CC) at para 52. See also para 51 of the judgment.
[16]
See part A of
chapter VI of the LRA.
[17]
Section 106
of
the LRA. See also
National
Entitled
Workers
Union v
Ministry
of Labour and Others
(2012)
33 ILJ 2585 (LAC) at paras 31 – 38.
[18]
See
Motor
Industry Staff Association v Macun NO and Others
(2016)
37 ILJ 625 (SCA) at para 20;
Food
and Allied Workers Union v In2Food (Pty) Ltd
(2014) 35 ILJ
2767 (LAC) at para 6;
In2Food
(Pty) Ltd v Food and Allied Workers Union and Others
(2013)
34 ILJ 2589 (LC) at 2591H-I.
[19]
(2014)
35 ILJ 1885 (CC) at para 142 – 143.
[20]
(2010)
31 ILJ 296 (CC) at para 56.
[21]
(2018)
39 ILJ 523 (CC)
at
paras 23 – 25.