About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2018
>>
[2018] ZALCJHB 386
|
|
Centlec (SOC) Ltd v South African Municipal Workers Union and Others (J 3803/18) [2018] ZALCJHB 386; [2019] 3 BLLR 276 (LC); (2019) 40 ILJ 846 (LC) (7 November 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: J 3803/18
In the matter between:
CENTLEC (SOC)
LTD
Applicant
and
SOUTH AFRICAN MUNICIPAL WORKERS
UNION
First
Respondent
LERENTON
NKALAI
Second Respondent
MHLUPHEKI KHANDA
Third Respondent
K M K MOTLHALE
Fourth Respondent
M.
MOENG
Fifth Respondent
J.
LEEUW
Sixth Respondent
‘
THE REMAINING UNLAWFUL
STRIKERS’
Seventh
Respondent
Heard: 29 October 2018
Delivered: 07 November 2018
JUDGMENT
TLHOTLHALEMAJE, J
[1] The applicant
approached this Court on an urgent basis to seek interdictory and
declaratory orders against the first respondent
(SAMWU) and its
members, who had embarked on an unprotected strike. In its original
notice of motion, the applicant sought an order
in the following
terms:
2.
A
Rule nisi
is issued, returnable on Thursday, 13 December 2018, in
terms of which the Respondents are called upon to show cause,
if any,
why the following order should not be made final:
2.1
the strike action embarked upon by the Respondents is declared
unlawful and unprotected;
2.2
Respondents are ordered to immediately disperse and interdicted
further from participating in the unlawful strike action and
performing any act in continuance thereof;
2.3
the Respondents are further interdicted from performing any act of
intimidation to any of the Applicant’s employees and/or
the
Applicant’s patrons;
…
[2] The application
initially came before Prinsloo J on 25 October 2018 and was
removed from the roll on account of the
applicant’s
non-compliance with the provisions of section 68(2) of the Labour
Relations (LRA)
[1]
.
The matter was then re-enrolled for 29 October 2018.
[3] On
26 October 2018, the applicant filed an amended notice of
motion together with a supporting supplementary affidavit
wherein it
averred that the striking employees had dispersed and had returned to
their working stations. The applicant nevertheless
persists with the
prayer 2.1 and 2.3 in its original notice of motion.
[4] The respondents
opposed the application on the basis that it was not urgent, and
further that since on the applicant’s
own version, the
employees had voluntarily returned to their normal duties
after
they were served with the original notice of motion. It was contended
that the culminating effect thereof was that the application
had
become academic, as there was no conduct to interdict.
[5] The urgency of
the matter has to be determined against the following background;
5.1 The applicant is
a state owned company licenced by the National Energy Regulator of
South Africa (NERSA) to distribute electricity
to municipal
authorities including the Mangaung Metropolitan Municipality and
other local municipalities in the Free State Province.
It performs an
essential function in the supply of electricity and has been declared
a national key point in terms of the National
Key Points Act.
[2]
5.2 SAMWU organises
within municipalities and similar local authorities. It represents
the majority of employees at the applicant.
The second to sixth
respondents are SAMWU shop stewards employed at the applicant.
5.3 On
9 October 2018, SAMWU made a written request to the
applicant in terms of clause 11.4.7.1 of the Main Collective
Agreement to hold a meeting with its members at the premises on
17 October 2018. Contrary to the conditions set in the
applicant’s approval, the meeting was convened at 08h00 instead
of 14h00. At the conclusion of the meeting, the employees
refused to
return to their normal duties for the remainder of the day.
5.4 The employees
according to the applicant thereafter assembled inside the premises
and conducted themselves in a general threatening
manner in
furtherance of the unprotected industrial action. This had resulted
in an ultimatum being issued instructing them to
resume their duties
on or before 18 October 2018 at 07:30.
5.5 On
18 October 2018, the employees handed over a memorandum to
the Executive Mayor of Mangaung Metropolitan Municipality,
demanding
the removal of the applicant’s Chief Executive Officer, and
Executive Manager: Human Resources. The memorandum
was however not
delivered directly to the representatives of the applicant.
5.6 The employees
heeded the ultimatum issued on 17 October 2018, but only
resumed their duties on 19 October 2018.
On Monday,
22 October 2018, the employees again abandoned their
working stations. On 23 October 2018, another
ultimatum was
issued, instructing them to immediately resume their duties on
23 October 2018
before 13:00
. On
the same date, SAMWU informed the applicant that it was in possession
of a copy of the ultimatum and would conduct its own
investigation in
respect of the purported industrial action.
5.7 The notice of
application was given on 24 October 2018 whilst the initial
application was served on the urgent roll
on 25 October 2018.
[6] Given the
timeline of events as described above, it cannot be said that the
applicant had not acted with the necessary haste
at the time it did
in approaching the court. Further given the nature of the applicant’s
operations, which have been classified
as essential service, and the
clearly unprotected nature of the strike and the effect it may have
had on the applicant’s
operations and the communities it
serviced, there is no basis upon which it can be concluded that the
matter was not urgent. In
my view, the fact that the applicant had
not complied with the requirements of section 68(2) of the LRA when
initially launching
this application, which had necessitated the
removal of the matter from the roll, did not in any event erode the
urgency of the
matter.
[7] SAMWU however
contends that the matter has since become moot, as there is no live
controversy since the employees have resumed
their duties. Given the
common cause fact that the strike has since ceased, the issue is
whether any purpose would be served by
granting the applicant the
orders it seeks.
[8] It has been held
that
a case is moot and therefore not justiciable
if it no longer presents an existing or live controversy which should
exist if the
Court is to avoid giving advisory opinions on abstract
propositions of law.
[3]
The principles related to mootness
were
succinctly restated by Moshoana J in
Koko v Eskom Holdings Soc
Limited
[4]
,
and it would be appropriate to cite therefore at large as
follows;
“
[21]
The doctrine of mootness is well developed in the American
constitutional law jurisprudence. A case becomes moot if a party
seeks to obtain judgment on a pretended controversy, when in reality
there is none, or a decision in advance about a right before
it has
actually been asserted and contested, or a judgment upon some matter
which when rendered, for any reason, cannot have any
practical effect
upon an existing controversy. Courts exists to resolve controversies
and not abstract issues. As I see it, for
a court to intervene and
assist the warring parties, there must be controversy between the
parties. The dictionary meaning of the
term controversy is a dispute,
argument, or debate, especially one concerning a matter about which
there is a strong disagreement.
Further, the controversy must be a
live one. Put differently it must exist between the warring parties.
A case would be moot if
the parties are not adverse, if the
controversy is hypothetical, or if the judgment of the court for some
other reason cannot operate
to grant any actual relief, and the court
is without power to grant a decision. It is moot, if it no longer
presents an existing
or live controversy or the prejudice or threat
of prejudice, which to an applicant, no longer exists
.
[22]
The mere fact that the matter is moot does not constitute an absolute
bar for a court to hear a matter. The overriding factor
is that the
order will have some practical effect on the parties or others. The
Constitutional Court had set out the following
as potentially
relevant factors: the nature and extent of the practical effect that
any possible order might have; the importance
of the issue; the
complexity of the issue; the fullness or otherwise of the argument
advanced and resolving disputes between different
courts. Added to
the factors is the interest of justice.
[23]
Quiet recently the Constitutional Court in
Pheko
v Ekurhuleni Metropolitan Municipality
had
the following to say:
‘
[32]
Although the removal has taken place, this case still presents a live
controversy regarding the lawfulness of the eviction.
Generally,
unlawful conduct is inimical to the rule of law and to the
development of a society based on dignity, equality and freedom.
Needless to say, the applicants have an interest in the adjudication
of the constitutional issue at stake. The matter cannot therefore
be
said to be moot. It is also live because if we find that the
removal of the applicants was unlawful, it would not be necessary
to
consider their claim for restitutionary relief.’ [My own
underlining and emphasis]
[24]
Determining whether a case is moot requires consideration of the
evidence placed before a court. It is not a principle that
is to be
plugged from the vacuum. Also, of importance is the relief that is
being sought by a party. In
Tshwane
University of Technology v All Members of the Central Student
Representative
Council of the Applicant,
Acting
Justice Wentzel had the following to say before declining to grant
the relief sought:
‘
[23]
To my mind, it is not the function of the courts to make blanket
interdicts. What the respondents in a sense want is restraining
order
to preclude any decision to close the residences without a Court
order. It is a matter of law that this must be done lawfully
and no
order declaring this is necessary. If this is done unlawfully in the
future, the respondents will have recourse to the courts.’
[25]
Recently,
the High Court, in
Afriforum
NPC and Others v Eskom Holdings SOC Ltd and others
,
had the following to say:
‘
[107]
The mootness barrier therefore usually arises from events arising or
occurring after an adverse decision has been taken or
a lawsuit has
gotten underway, usually involving a change in the facts or the law,
which allegedly deprived the litigant of the
necessary stake in the
pursued outcome or relief. The doctrine requires that an actual
controversy must be extant at all stages
of review and not merely at
the time the impugned decision is taken or the review application is
made.
[110]
An application for an interdict or other relief with continuing
force is not rendered moot solely by the voluntary cessation
of
allegedly unconstitutional, illegal, unreasonable or unfair conduct,
since the offending party may return to its old ways. An
issue will
normally not be deemed moot if it is capable of repetition, yet
evading review. The court should enquire into whether
the claim has
been mooted because the respondent has voluntarily, but not
necessarily permanently, acquiesced. So long as
the person
mounting the legal challenge confronts continuing harm, collateral
harmful consequences that continue to endure, or
a significant
prospect of future harm, the case cannot be deemed moot. By similar
token, in the event of a voluntary cessation
of wrongful conduct, a
case might well be moot if subsequent events make it sufficiently
clear that the allegedly unlawful behaviour
may not reasonably be
expected to recur.
[115]
The essential question for decision in relation to the justiciability
of the issues and the relief sought in these applications,
therefore,
is whether the voluntary cessation of Eskom’s alleged wrongful
conduct has rendered the applications moot. As
just said,
applications for interdictory relief or review should not be rendered
moot solely by the voluntary cessation of allegedly
wrongful conduct
where it appears that the offending party may return to its old
ways…Put differently, do the applicants
still face continuing
harm, enduring collateral harmful consequences or a significant
prospect of future harm? Does the evidence
make it sufficiently clear
that the allegedly wrongful conduct may not reasonably expected to
recur?’”
[Citations omitted]
[9] Applying the
above principles to the facts of this case, and given the
respondents’ responses to the applicant’s
supplementary
affidavit, it can be accepted that SAMWU does not dispute the fact
that its members had embarked on an unprotected
strike, and also that
they had conducted themselves in the manner described by the
applicant in the course of that strike. The
applicant has correctly
abandoned its prayer 2.2 in that it obviously pertained to a live
issue at the time that the application
was initially brought before
the court. It nonetheless persist seeking that the strike action be
declared unlawful and unprotected,
and a further order interdicting
the respondents from performing any act of intimidation to any of its
employees and/or patrons
‘henceforth’.
[10] In my view, the
interdictory relief sought by the applicant under prayer 2.3 of its
Notice of Motion pertained to an issue
which is no longer live in
that since the strike action ceased, there can be no talk of acts of
intimidation being performed by
SAMWU members that can practically be
interdicted to cease ‘henceforth’. I further did not
understand the applicant’s
case to be that despite the strike
having ended, the intimidation complained of continued to persist or
that there was a likelihood
that it may persist.
[11] It follows that
the only issue that needs further consideration by the Court is
whether any purpose would be served by declaring
the strike action
embarked by SAMWU members which has since ceased, unlawful and
protected.
[12] Central to the
applicant’s argument was that the strike action embarked upon
was not only unprotected, but was a stop/start
affair which had
ceased upon the issuing of ultimatums and the launching of these
proceedings. It was further argued that in the
light of the demands
that remained live (which are the subject of ongoing negotiations),
and further in the absence of any undertakings
by the respondents,
there was no guarantee that the employees would not embark on similar
strike action again and continue to disrupt
its essential operations.
[13] It was
submitted on behalf of the respondents that the relief sought by the
applicants was academic in the light of the strike
having ceased, and
that all that the applicant seeks was a guarantee that the employees
would not down tools again. The essence
of the relief sought
according to the respondents, was to obtain an order interdicting and
declaring unlawful future strike action
which the employees might
embark upon. Furthermore, the effect of the order if granted would be
to shut the door on the respondents
with regard to their right to be
heard before an order was granted against them, making any such
orders unlawful and against the
principles of legality. To that end,
it was submitted there was no longer any reasonable apprehension of
harm which was a cardinal
requirement for the grant of an interim
order.
[14]
In
this case, it is worth repeating that members of SAMWU had embarked
on an unprotected strike action on two different occasions
within a
short period of time, and in a work environment that has been
declared as essential services. The employees had on the
occasions
that they had resumed their duties, done so following upon ultimatum
or the launching of these proceedings. In the answering
affidavit,
the respondents do not put up any defense to the applicant’s
contentions that the consequences of any such industrial
action are
dire, including that;
a)
There
will be interruption of distribution of electricity in the
municipalities and communities they service;
b)
There
will be interference with the applicant’s statutory obligations
which may result in the rescission of its operating
licence;
c)
There
would be loss of prepaid electricity revenue on account of the
non-availability of personnel at the point of sale at the applicant’s
offices in the event of an unlawful and unprotected strike;
d)
There
would be interference with the applicant’s maintenance
schedules, which exposes the electricity distribution equipment
to
damage and even explosions.
[15]
In
my view, it cannot be in the interests of justice for this Court to
close its eyes to the fact that the unprotected strike did
take
place, that the issues that led to that strike remains live, and
further that no attempt has been made to make any undertaking
that
any such strike action would not take place, whilst the employees’
demands remains live.
[16]
In
my view, although the unprotected strike action has ceased, the
unresolved demands still presents a live controversy regarding
whether the strike embarked upon in that regard was unlawful and
unprotected at the time it took place, but for the fact that the
matter had to be removed from the roll.
[17] It cannot be
correct as argued on behalf of the respondents, that what the
applicant seek is to effectively erode their rights
to a fair hearing
before any order as sought in this regard can be made. The order as
sought in this case is merely to confirm
by way of a declaratory
order, that indeed the strike was unlawful and unprotected. Given the
nature of the applicant’s operations,
the employees are not
entitled to simply embark on any form of industrial action. Even if
they were, as long as the provisions
of section 64 of the LRA would
have complied with, then
no order declaring that
action unlawful and unprotected would have been necessary.
[18] The granting of
an order to declare the industrial action in question in my view will
clearly have a practical effect, which
is that SAMWU or its members
as they should know, cannot willy-nilly embark on unprotected strike
actions, heed the call to return
to work, and then immediately
thereafter engage in similar conduct. The conduct in question is
inimical to the rule of law.
[19] It cannot also
be in the interests of justice and the proper functioning of this
Court for parties such as the applicant to
constantly approach the
Court simply to interdict sporadic industrial actions, and as and
when they take place.
In this case, the mere fact
that the employees had
voluntarily ceased the unprotected
industrial action is cold comfort for the applicant, as in the light
of the live controversy,
there is no guarantee that they may not
repeat the conduct in question. In my view, the apprehension of harm,
prejudice or threat
of prejudice in this case is not hypothetical or
imagined. It has been demonstrated as real, and entitles the
applicant to the
relief that it seeks.
[20] It is accepted
that what the applicant sought in this case is
interim
relief.
The issue is whether in the light of the answering affidavit and the
applicant’s waiver to file a replying affidavit,
any
interim
order would serve any purpose.
[21] In
Metsimaholo
Local Municipality v South African Municipal Workers Union and
Others
[5]
,
it is was held that in urgent applications of this nature,
because the respondents had filed an answering affidavit, it was in
that
affidavit that they were supposed to show that the
rule nisi
ought not to be granted because,
inter alia
, the applicant had
not shown that it had a
prima facie
or clear right. It was
further held that a
rule nisi
should only be granted as
interim
relief pending the institution of judicial proceedings
or because the other side has not been given proper opportunity to
challenge
the allegations in the application for a
rule nisi
[6]
.
[22] In this case,
the respondents had filed an answering affidavit. They had not
however responded to the averments made in the
founding affidavit as
they reserved their rights to do so should the interim order be
granted. In my view, it is doubted whether
any further opportunity to
respond to the averments in regards to the lawfulness of the strike
would sway any court hearing the
matter in due course to reach a
conclusion that the strike was protected. Furthermore, it is doubted
that SAMWU can allege that
the strike was provoked. This is so in
that the request for the meeting that resulted in the strike was made
on 9 October 2018.
Flowing from that meeting on
17 October 2018, the unprotected strike had commenced
thereafter. Rather than the strike
being provoked, at the very least
in the light of this time-line, it appears to have been premeditated.
[23] In the end, I
am satisfied that all the issues were properly ventilated at the
hearing of this application, and nothing further
that will be placed
before the Court in due course can change the character of the strike
in question, to that of a protected and
lawful one. In the
circumstances, it would be appropriate to dispose of this matter with
a final order.
[24] I have further
had regard to the requirements of law and fairness in respect of an
award of costs. It is my view that the circumstances
of this case are
such that a costs order is not warranted and each party must be
burdened with its own costs.
[25] Accordingly,
the following order is made;
Order:
1. The matter is
heard as one of urgency.
2. The strike action
embarked upon by the respondents is declared unlawful and
unprotected.
3. There is no order
as to costs.
E.
Tlhotlhalemaje
Judge of
the Labour Court of South Africa
APPEARANCES:
For
the Applicant:
Y.F Salooje
Instructed
by:
Phatshoane Henney Attorneys
For
the Respondents:
Z Feni
Instructed
by:
Qhali
Attorneys
[1]
Act 66 of 1995 (as amended)
[2]
Act 102 of 1980
[3]
National Coalition for Gay and Lesbian Equality and Others v
Minister of Home Affairs,
[1999] ZACC 17
;
2000 (2)
SA 1
;
2000 (1) BCLR 39
at para 21
[4]
(J200/18) [2018] ZALCJHB 76 (21 February 2018)
[5]
(JA123/2014)
[2016] ZALAC 19
(11 May 2016)
[6]
Metsimaholo Local Municipality v South African
Municipal Workers Union and Others
supra
at paras
10 and 23