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[2018] ZALCJHB 451
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Dis Chem Pharmacies Ltd v Malema and Others (J 4124/18) [2018] ZALCJHB 451; (2019) 40 ILJ 855 (LC) (7 December 2018)
THE LABOUR COURT OF SOUTH
AFRICA, JOHANNESBURG
Reportable
Case
no: J 4124 / 18
In
the matter between:
DIS-CHEM PHARMACIES
LTD Applicant
and
SOLLY
MALEMA First
Respondent
NATIONAL
UNION OF PUBLIC SERVICE
AND
ALLIED
WORKERS Second
Respondent
EMPLOYEES
LISTED ON ANNEXURE “A”
Third to Further
Respondents
Heard
:
5 December 2018
Delivered
:
7 December 2018
Summary:
Picketing Rules – section 69 of the LRA considered
– Labour Court entitled to grant
urgent interim relief
where picketing rules materially breached
Picketing
Rules – section 69(12) – considering what is just and
equitable – employees that continue to behave
unlawfully
despite enforced picketing rules forfeit the right to picket
Picketing –
violence, unlawful conduct and intimidation – compliance with
section 69(1) required – breach of section
69(1) justifies
complete suspension of picket
Picketing
rules – amendment granted as urgent interim relief pending
further CCMA conciliation / adjudication proceedings
REASONS
FORJUDGMENT
SNYMAN,
AJ
Introduction
[1]
I will
commence judgment in this matter by quoting what I said in
KPMM
Road and Earthworks (Pty) Ltd v Association of Mineworkers and
Construction Union and Others
:
[1]
„
As
a point of departure in writing this judgment, it has once again been
necessary for me to return to what has become a common
side effect of
protected strike action by trade unions and employees, being that of
unlawful behaviour, violence and intimidation.
I am quite sure that
it was never envisaged or contemplated that the right to strike as
enshrined in the Constitution, would have
components of unlawful
conduct, violence and intimidation as such a significant part of it.
This kind of behaviour deserves no
Constitutional protection, and
should be completely rooted out of the employment environment. …‟
[2]
This matter
before me is yet another case in point. It concerns a situation
where, despite picketing rules having been issued by
the Commission
for Conciliation, Mediation and Arbitration („CCMA‟), and
these in fact having been enforced by this
Court, striking employees
simply remain in flagrant disregard of all these measures intended to
regulate and establish peaceful
protest as an essential component of
protected strike action. As said in
SA
Transport and Allied Workers Union and Another v Garvas and
Others
[2]
:
„…
Everyone
has the right, peacefully and unarmed, to assemble, to demonstrate,
to picket and to present petitions.' That is what s
17 of the
Constitution promises the people in South Africa.
This
means that everyone who is unarmed has the right to go out and
assemble with others to demonstrate, picket and present petitions
to
others for any lawful purpose.‟
[3]
What happened in this instance is entirely at odds with
what is spelt
out in the above dictum in
Garvas
. After hearing argument for
the applicant, I issued the
inter alia
the following order:
„
2.
The Picketing Rules issued by the CCMA on 7 November 2018 are
hereby varied in the following respect:
2.1 The
Picketing Rules are hereby suspended; and
2.2
The Picketing rules are of no further force and effect for the
duration of the issue in dispute.
3.
The Second and Third to Further Respondents are interdicted and
restrained from continuing or participating in any further
Picket, gathering, Assembly or Protest Action in or at any of the
Applicant‟s Premises, or any place to which the public
has
access outside the Applicant‟s premises, including those listed
in annexure “C” to the First Urgent Application.
…
8.
Written reasons for this order will be provided on 7 December 2018.‟
The
above order was an interim order with immediate effect, returnable on
27 February 2019.
[4]
This written judgment now constituted the reasons referred
to in
paragraph 8 of the order set out above.
The
relevant background
[5]
The applicant conducts business in the retail of pharmaceutical
and
related products. It has approximately 150 stores nationwide. The
applicant also has a head office, and a number of distribution
centres.
[6]
The applicant employs 17 128 employees nationwide. The
second
respondent has recruited approximately 1 900 of these employees as
members, and has sought to engage the applicant in collective
bargaining on behalf of these members. Because the applicant
considered the second respondent to be a minority union, it refused
to bargain with the second respondent.
[7]
The second respondent initially on 24 May 2018 tabled
a number of
demands relating to wages and conditions of employment of its
members. A revised demand was tabled at the CCMA on 29
August 2018.
But throughout the applicant refused to bargain with the second
respondent.
[8]
On 14 September 2018, the CCMA issued a ruling to the
effect that the
dispute concerned a refusal to bargain, and the parties then filed
submissions for the purposes of the issuing
of an advisory
arbitration award. The advisory award followed on 8 October 2018,
opening the way for the second respondent
and its members to
embark upon protected strike action to compel the applicant to
bargain with it.
[9]
A picketing rules dispute was referred to the CCMA. The
parties met
at the CCMA on 29 October 2018 to establish picketing rules. The
various landlords of the applicant‟s stores
also made
submissions in this regard. The process took some time to complete,
and final sitting was then convened for 7 November
2018.
[10]
When the process reconvened on 7 November 2018, the second respondent
refused to further participate in the process and left. The
commissioner concerned then issued picketing rules on 7 November
2018,
with final picketing rules following on 14 November 2018.
[11]
Strike action ultimately commenced on 16 November 2018. From the
outset,
there were a number of material violations of the picketing
rules, and unlawful conduct on the part of the striking employees.
This conduct then formed the basis of an urgent application that same
afternoon before Van Niekerk J, who granted an order in terms
of
which the current respondents were ordered to comply with the
picketing rules, and where interdicted and restrained from
perpetrating
acts of violence and intimidation, unlawful conduct,
wielding weapons, blockading premises, and unduly interfering with
the operations
of the applicant.
[12]
But it became apparent that the order by Van Niekerk J had no effect
on the individual respondents. Despite the picketing rules of 14
November 2018, and the subsequent order of Van Niekerk J of 16
November 2018, the individual respondents remained steadfast in their
conduct of violence, intimidation and unlawful behaviour.
It was
apparent that the first and second respondents either had no control
over the individual respondents, or did not want to
control them.
[13]
The founding affidavit of the applicant sets out a plethora of
conduct
that can only be described as manifestly unacceptable and
unlawful. I do not intend to repeat all the details thereof in this
judgment
and will suffice with a short summary. Over the period from
16 November 2018 and until this current application was brought,
non-striking
employees were actively intimidated, some non-striking
employees were assaulted, the property of non-striking employees
(such as
homes and vehicles) were damaged, striking employees
blockaded access to the Canal Walk, Cavendish Square, Zevenwacght,
Sea Point,
Ghandi Square, Park Station, and Boksburg North stores,
forcing some of them to close for several hours, and even members of
the
public were assaulted.
[14]
Further, the conduct of the individual respondents in the Canal Walk
shopping centre at the applicant‟s store there, was such that
all the surrounding retail outlets in the shopping centre had
to
close as well.
[15]
At the Midrand and Delmas Distribution Centres, stones were thrown at
non striking employees and passers-by, and passing and delivery
vehicles, and property was damaged. Some non-striking employees
were
accosted, and seriously assaulted. Access to these Centres, as well
as the Cape Town Distribution Centre, was blocked from
time to time.
There were even instances of fire arms being pointed at non-striking
employees.
[16]
In most of the instances referred to above, the intervention of SAPS
was required to restore order, bring the striking employees under
control, and protect persons and property.
[17]
The applicant and its attorneys, as from 19 November 2018, took a
number
of steps to try and procure compliance with the picketing
rules and Court order from the respondents. This included telephone
calls,
addressing of formal correspondence, the details of which were
set out in the founding affidavit. Meetings were held with the second
respondents officials, which was fruitless. None of these
interventions resolved matters. The CCMA also sought to intervene in
terms of section 150 of the LRA, but this equally could not resolve
matters.
[18]
The current application then followed.
Analysis
[19]
It has
become an almost common place occurrence that where there is a
protected strike, violence and unlawful behaviour inevitably
follows.
It is almost as if striking employees believe this is how things
should be done. One only has to spend a week in the urgent
Court in
this Court to appreciate the gravity of the problem.
[3]
A significant portion of the urgent roll is devoted to interdicting
violence and unlawful behaviour during strikes. The situation
perpetuates because it seems that there is very little consequence to
transgressors, despite picketing rules and interdicts by
this Court
being issued.
[20]
In my view,
the only way to deal with this effectively is make consequences
happen. Obviously, the most appropriate consequence
had to be that
where employees and trade unions conduct themselves in an unlawful
manner, they should forfeit their rights under
the LRA. Van Niekerk J
flirted with this prospect in in
Tsogo
Sun Casinos (Pty) Ltd t/a Montecasino v Future of SA Workers Union
and Others
[4]
where the learned Judge said:
„…
But the exercise of the
right to strike is sullied and ultimately eclipsed when those who
purport to exercise it engage in acts
of gratuitous violence in order
to achieve their ends. When the tyranny of the mob displaces the
peaceful exercise of economic
pressure as the means to the end of the
resolution of a labour dispute, one must question whether a strike
continues to serve its
purpose and thus whether it continues to enjoy
protected status.‟
[21]
But I struggle to think of any Judge brave enough to actually go down
this road. The reason for this is that the limitation of the right to
strike is specifically regulated by the LRA itself, in the
form of
substantive limitations in section 65, and procedural limitations in
section 64. It must therefore follow that if it cannot
be shown that
the conduct or issue in dispute or any aspect relating to the strike
falls foul of any of these provisions, then
there simply exists no
basis upon which to limit the right to strike. And unfortunately,
unlawful conduct and violence and intimidation
do not resort under
any of these limitations.
[22]
Closely
associated with the right to strike is the right to picket. Hence the
provisions of section 69 of the LRA. As held
in
SA
Airways v SA Transport and Allied Workers Union and Others
[5]
:
„…
Therefore, the very
purpose of s 69, as read with the code, is to regulate protest action
and demonstration during protected strike
action, and to ensure it is
lawful and peaceful. However, and considering the provisions of s
69(7), the section is further intended
to offer striking employees
protection against discipline and undue interference (for example by
interdicts) where they conduct
picketing in terms of s 69, and this
picketing would attract the same protection as a protected strike in
terms of s 67. …‟
[23]
Considering section 69, it provides from the outset in subsection (1)
that the picket must be „
for the purposes of peacefully
demonstrating
‟. Unlawful conduct, violence and intimidation
are incompatible with this principle. This principle also has
important component
of public policy, as recognized in
Verulam
Sawmills (Pty) Ltd v Association of Mineworkers and Construction
Union
and Others
[6]
,
where the Court said:
„…
Not only are picketing
rules there to attempt to ensure the safety and security of persons
and the employer's workplace, but if
they are not obeyed and violence
ensues resulting in non-strikers also withholding their labour, the
strikers gain an illegitimate
advantage in the power play of
industrial action, placing illegitimate pressure on employers to
settle. …‟
[24]
The above
being said, the logical question that follows is that if the primary
objective of section 69(1) of peaceful protest is
contravened, can it
lead to a forfeiture or suspension of that right? In my view,
certainly so. Guidance can be found in the judgment
of
Garvas
[7]
where the Court considered the limiting of the right of assembly
under section 17 of the Constitution by way of the Gatherings
Act.
[8]
In this regard, the Court held:
„
Nothing
said thus far detracts from the requirement that the right in s 17
must be exercised peacefully. And it is important to
emphasize that
it is the holders of the right who must assemble and demonstrate
peacefully. It is only when they have no intention
of acting
peacefully that they lose their constitutional protection. …‟
[25]
I also wish
to make reference to
Ram
Transport SA (Pty) Ltd v SA Transport and Allied Workers Union and
Others
[9]
where the Court held:
„…
Regrettably, the detailed
incidents of violence and damage to property perpetrated by
unidentified persons that are recorded in
the papers are
representative of a blight that has come to characterize the South
African industrial relations landscape. 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.‟
[26]
It follows that it cannot be seen to constitute a violation of a
fundamental
right where employees are held accountable for failing to
exercise their right to picket in a peaceful manner as
required,
by way of a suspension of forfeiture of those rights.
The right to protect, picket and assemble is directly linked to it
being
exercised peacefully. The one is a
quid pro quo
of the
other. In short, if the exercise of this right is not peaceful, it
should not be exercised at all.
[27]
The only
question that remains is whether the LRA as the directly applicable
statute in the employment arena provides otherwise.
In my view, and
especially after the amendments to the LRA that came about in
2015,
[10]
it is in fact
contemplated by the LRA that picketing that is not peaceful and which
contravenes picketing rules, can result
in the forfeiture or
suspension of the right to picket. This is evident from the
process that has been created to deal with
these kind of
contraventions. In this regard, section 69(8) now provides:
„
Any
party to a
dispute
about any of the following issues …
may refer the
dispute
in writing to the Commission-
(a)
an
allegation that the effective use of the right to picket is being
undermined;
(b)
an alleged material contravention of subsection (1) or
(2);
(c)
an
alleged material breach of an agreement concluded in terms of
subsection (4); or
(d)
an
alleged material breach of a rule established in terms of subsection
(5).‟
[28]
Once such a
dispute is declared, it must be adjudicated by this Court if
conciliation fails.
[11]
In
determining a dispute as contemplated by section 69(8), this Court is
also given wide powers in terms section 69(12), which
provides:
„
If
a party has referred a
dispute
in terms of subsection (8) or
(11), the Labour Court may grant relief, including urgent interim
relief, which is just and equitable
in the circumstances and which
may include-
(a)
an order directing any party, including a person
contemplated in subsection (6)
(a)
, to comply with a
picketing agreement or rule; or
(b)
an order varying the terms of a picketing agreement or
rule.‟
[29]
What is important to extract from Section 69(12) is that it allows
for
urgent interim relief pending conciliation and/or adjudication of
the dispute, which relief must be „just and equitable‟.
What is „just and equitable‟ is left up to this Court to
decide. This being the case, I am comfortable in concluding
that the
concept of „just and equitable‟ could include relief in
the form of the suspension or forfeiture of the right
to picket. I
would venture to suggest that this kind of relief is appropriate
where the breaches of the picketing rules and violence,
unlawful
conduct and intimidation is persisted with despite attempts to secure
compliance.
[30]
The point I make above can be illustrated as follows. Where there is
a breach of picketing rules, the employer can declare a dispute in
terms of section 69(8) of the LRA and then approach this Court
for
urgent interim relief. In such instance, and once this Court grants
an order, it is not only expected that employees must comply,
but
also these employees are legally compelled to comply. If the breaches
persist, not only do the employees expose themselves
to being held in
contempt of Court, but in my view this Court can then also be
approached by the employer to visit the employees
with the
consequence of the suspension or forfeiture of their right to picket,
in toto
. The reason why this is so is because this scenario
demonstrates persistent conduct, and exhibits the kind of intention
not to
act peacefully, as contemplated by the
ratio
in
Garvas
.
[31]
Applying the above to the facts in this case, I am satisfied that the
matter
in casu
is a prime example of the kind of situation
where the complete suspension of the respondents‟ right to
picket is called for
and justified.
[32]
The conduct of the respondents as summarized above is entirely
unacceptable and without justification. It shows a clear contempt for
the provisions of the LRA and orders of this Court. It is
precisely
the kind of conduct this Court is most critical of. It is conduct
that is irreconcilable with the fundamental obligation,
attached to
the right to picket, of peaceful protect. In no universe can
assaulting and intimidating fellow employees, blockading
roads and
premises, damaging property and wielding weapons be seen as peaceful
protest.
[33]
But what
must surely cement the proposition that the respondents have no
intention of complying with the picketing rules and their
legal
obligation of peaceful protest, is the fact that they were confronted
by an order by Van Niekerk J, clear and unambiguous
in its terms,
which they chose to simply disregard. The point next is that contempt
proceedings is
not
the only basis upon which a Court can deal with such flagrant
on-compliance of its orders. As said in
Matjhabeng
Local Municipality v Eskom Holdings Ltd and Others
[12]
„
Not
every court order warrants committal for contempt of court in civil
proceedings. The relief in civil contempt proceedings can
take a
variety of forms other than criminal sanctions, such as declaratory
orders,
mandamus
, and structural interdicts. All of these
remedies play an important part in the enforcement of court orders in
civil contempt proceedings.
Their objective is to compel
parties to comply with a court order. In some instances, the
disregard of a court order may
justify committal, as a sanction for
past non- compliance. …‟
In
this instance, the appropriate manner in which to deal with the
violation is to take away the right concerned, rather than to
only
seek sanction by way of contempt proceedings.
[34]
Therefore, it is the kind of conduct that occurred in this instance
that
must lead to the forfeiture of the right to conduct a picket /
protest as part of strike action. It is deliberate, calculated, and
persistent, despite all the mechanisms in place to ensure that the
obligation of peaceful protest is maintained. In short, if the
respondents cannot behave, they cannot play. They are no longer
allowed to picket.
[35]
As touched
on above, the applicant in this case has sought urgent interim
relief. As such, the relief granted in terms of this judgment
can
only apply until the pending dispute in terms of section 69(8) of the
LRA is either resolved at conciliation under the auspices
of the CCMA
in terms of section 69(10), or by way of final adjudication in this
Court under section 69(11). In any event, and as
said in
SA
Airways
,
[13]
a particular picketing agreement or picketing rules only applies to a
particular strike, and once that strike is resolved, the
relevant
rules / agreement falls away. The issue is therefore susceptible to
be revisited on each and every individual occasion,
and does not
serve as some or other binding precedent covering all future strikes.
This strikes an appropriate balance as well,
where it comes to
instances where rights are limited.
[36]
It is for all the reasons above that I made the order that I did, as
set out in paragraph 3 of this judgment,
supra
.
Sean
Snyman
Acting
Judge of the Labour Court of South Africa
Appearances:
For
the Applicant: Advocate
A Redding SC
Instructed
by: Cliffe
Dekker Hofmeyr Inc Attorneys
For
the Respondents: No
appearance
[1]
(2018) 39 ILJ 609 (LC) at para 1.
[2]
(2012) 33 ILJ 1593 (CC) at paras 51 – 52.
[3]
See the dictum in
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
[4]
(2012) 33 ILJ 998 (LC) at para 13
[5]
(2013) 34 ILJ 2064 (LC) at para 54.
[6]
(2016) 37 ILJ 246 (LC) at para 15.
[7]
(
supra
)
footnote 2.
[8]
Act 205 of 1993.
[9]
(2011) 32 ILJ 1722 (LC) at para 9.
[10]
The amendments were introduced by Act 6 of 2014, with effect from 1
January 2015.
[11]
Sections 69(10) and (11)
[12]
2018 (1) SA 1
(CC) at para 54.
[13]
(
supra
)
at para 43