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[2019] ZALCJHB 76
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Arcelormittal South Africa Ltd and Another v National Union of Metalworkers of South Africa and Others (J601/19) [2019] ZALCJHB 76 (17 April 2019)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
No: J601/19
In
the matter between:
ARCELORMITTAL
SOUTH AFRICA LTD
First
Applicant
REAL
TREE TRADING 1 (PTY)
LTD Second
Applicant
and
NATIONAL UNION OF
METALWORKERS OF
SOUTH
AFRICA First
Respondent
INDIVIDUALS LISTED ON
ANNEXURE “A”
(NUMSA MEMBERS
EMPLOYED BY THE
FIRST
APPLICANT)
Second to Further Respondents
INDIVIDUALS LISTED ON
ANNEXURE “B”
(NUMSA MEMBERS
EMPLOYED BY THE
SECOND
APPLICANT)
Third to Further Respondents
Heard:
12 April 2019
Delivered:
17 April 2019
JUDGMENT
LALLIE,
J
[1]
The applicants brought this urgent application seeking orders mainly
in
the following terms:
“
2.
A rule nisi is issued calling upon the Respondents to show cause on a
date and at a
time to be allocated by the Registrar of this
Honourable Court (“the return date”) why an order should
not be made
in the following terms:
2.1
it is declaring that by virtue of their unlawful conduct and/or their
breaches of the Varied
Picketing Rules and/or their breaches of Court
Orders of 13 March 2019 and 4 April 2019 (under case number J601/19),
the Respondents
are not entitled to picket and march at any locations
(including but not limited to the premises of AMSA) in support of the
strikes;
and or
2.2
All picketing and march Respondents in support of the strikes at all
locations (including
but not limited to the premises of AMSA) is
indefinitely suspended;
2.3
Alternatively
, all picketing marching by the Respondents in
support of the strike at all locations (including but not limited to
the premises
of AMSA) is suspended until such time as the First
Respondent has provided this Honourable Court with a comprehensive
written plan,
to the satisfaction of this Honourable Court, as to how
it intends to curb, control and remedy the on-going unlawful conduct
and
the on-going breaches of the Varied picketing Rules, and the
Court Orders of 13 March 2019 and 4 April 2019;
2.4
Further alternative
, all picketing by the Respondents in
support of the strikes at the main picketing area only i.e at the
open area near the East
Gate of AMSA’s premises in
Vanderbijlpark (“the main Picketing Area) is indefinitely
suspended; and
CONTEMPT
4.
A rule nisi issued calling upon the First Respondent to show cause on
the return
date why an order should not be made in the following
terms:
4.1
the First Respondent is found guilty of contempt of court for failing
to comply with the
Court Order of 4 April 2019;
4.2
the First Respondent is fined in an amount that the Labour Court
deems appropriate.”
[2]
The application is opposed by the respondents on the grounds,
inter
alia
, that the applicants failed to give them proper notice of
the application and lack of urgency.
[3]
The question whether the applicants gave the respondent sufficient
notice of the application
will be considered first as its answer will
determine whether the first part of this application is properly
before Court. The
second to further respondents are employed by the
first applicant while the third to further are employed by the second
respondent.
The second to further respondents and third to further
respondents will be referred to as the individual respondents. They
are
members of the first respondent which will be referred to as the
NUMSA in this judgment. The individual respondents are currently
on
strike. In March 2019, the Commission for Conciliation Mediation and
Arbitration, (the CCMA) determined picketing rules regulating
the
manner in which the respondents would exercise their right to picket
during the strike. The picketing rules were varied and
made an order
of Court on 4 April 2019.
[4]
When picketing rules are breached a party may approach this Court in
terms of section
69 of the Labour Relations Act
[1]
(LRA) for relief. Section 69 (12) of the LRA provides as follows:
“
If a party has
referred a dispute in terms in 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 if a picketing agreement or rule.”
[5]
Notice to be given by a party intending to seek relief in terms of
section 69 (12)
is provided for in section 69 (13) as follows:
“
The Labour Court
may not grant an order in terms of subsection (12) unless-
(a)
48 hours’ notice of an application seeking relief referred to
in subsection
(12) (a) or (b) has been given to the respondent; or
(b)
72 hours’ notice of an application seeking relief referred to
in subsection
(12) (c) or (d) has been given to the respondent.”
[6]
Section 69 (14) provides for exceptions to section 69 (13) in the
following words:
“
The Labour Court
may permit a shorter period of notice than required by subsection
(13) if the-
(a)
applicant has given written notice to the respondent of its intention
to apply for
the order;
(b)
respondent has been given a reasonable opportunity to be heard before
a decision concerning
the application is taken; and
(c)
applicant has shown good cause why a period shorter than that
contemplated by section
(13) should be permitted.”
[7]
The respondents submitted that the applicants seek an order
contemplated in section
69 (12) (c) but have neither given them 72
hours’ notice as envisaged in section 69 (13) (b) nor sought
condonation as contemplated
in section 69 (14) (c). They submitted
that the application was served on them on 10 April at 19h19 and was
enrolled for hearing
on 12 April 2019 thus giving them less than 48
hours’ notice of the application. The applicants, on the
morning of 12 April
2009, being the date of the hearing of the
application, served and filed an affidavit in which their attorney
confirmed that they
sent a letter to the respondents’ attorneys
on 8 April 2019 informing them of their intention to bring the
application at
hand on 12 April 2019. They therefore submitted that
they at least gave the respondents 72 hours’ notice.
[8]
In the founding affidavit the respondents submitted that there is no
bar to the relief
being sought under this application as this Court
is empowered in terms of section 69 (12) to grant the relief they are
seeking.
The respondents’ averments that the applicants served
this application on them at 19h19 on 10 April 2019 and set it down
for hearing on 12 April 2019 were not refuted. I therefore accept the
respondents’ submission that the applicants failed to
give them
the 72 hours’ notice envisaged in section 69 (13). The
applicants’ argument that they gave the respondents
72 hours’
notice of the application is not supported by the averments in their
affidavits. I accept the respondents’
argument that compliance
with section 69 (13) (b) is a jurisdictional fact which must exist
before this Court can exercise the
jurisdiction in section 69 (12).
Compliance with the terms of section 69 (12) is therefore necessary.
The correctness of this interpretation
is supported by the provisions
of section 69 (14) which set out the procedure to be followed by a
party which is unable to comply
strictly with provisions of section
69 (13) (b).
[9]
The applicants sought to rely on a letter addressed by its attorneys
to the respondents’
attorneys in arguing that they complied
with the provisions of section 69 (14) (a). The letter reads thus:
“
ARCELORMITTAL
SOUTH AFRICA LIMITED AND REAL TREE TRADING (PTY) LTD / NUMSA: STRIKE
2019
1.
We are informed by our clients that your client and/or its members
are not complying
with the Court Order.
2.
We are intending to bring an application on Thursday, 11 April 2019,
as a result
of your clients’ breach. We are in the process of
liaising with the Registrar.”
[10]
The respondents denied that the letter constitutes compliance with
provisions of section 69 (14).
Their argument is based on the
interpretation of the term ‘notice of the application’
contemplated in section 68 (3)
of the LRA which is interpreted in the
following words in
Automobile
Manufacturers Employers’ Organisation v NUMSA
[2]
:
“
The wording of the
Act refers to a notice of application. A notice of application is
generally a notice of motion together with
supporting affidavits. In
my opinion this is the construction which must be given to section
68(3). A respondent, such as the union
and other respondents in this
case require to know what the case is that is being brought against
them. They need to know whether
they can oppose the case and they
require more than simply the gist of the case. The applicant’s
attorney’s letter
of 26 August 1998 sets out the relief which
is going to be claimed and the grounds but not the facts which are to
be relied upon.”
[11]
I accept the respondent’s interpretation because it give
provisions of section 69 (14)
a purposive interpretation. Both
section 68 (3) and section 69 (14) deal with interfering with the
fundamental rights. In the former,
with the right to strike an in the
latter with the right to picket. Both the form and content of the
letter the applicants seek
to rely on fall short of the notice
contemplated in section 69 (14). The notice did not take the form of
a notice of motion and
supporting affidavit. Even if the form would
be overlooked, the contents of the letter exclude the facts the
applicants relied
on. Of significance is the applicants’
omission to state, in the letter, the relief it was going to claim.
The content of
the letter does not place the respondents in a
position to take a decision whether to oppose the application. The
letter was an
unsuccessful attempt by the applicants to cure its
failure to comply with provisions of section 69 (13) (b). As the
applicants
have not complied with provisions of section 69 (13)(b) or
section 69 (14)(a) their claim to have the respondents’ right
to picket suspended or varied is not properly before Court and stands
to be dismissed.
[12]
The applicants’ argument that the jurisdictional facts in
sections 69 (13) and (14) do
not find application in this case
because the picketing rules were made an order of Court has no legal
basis. The applicants sought
relief in terms of section 69 (12) which
deals with the suspension and variation of a picketing agreement or
rules and is silent
on Court orders. Making a picketing agreement an
order of court does create an exemption from complying with
provisions of section
69 (13) and (14). It instead created an
obligation for the applicants to follow the procedure of enforcing
the Court order of a
picketing agreement or rules which has been made
an order of court.
[13]
The applicants seek an order finding the respondents in contempt of
the court order of 4 April
2019 (the court order). The respondents
denied being in contempt of court. It is common cause that the
respondents failed to comply
with parts of the court order. They
however submitted that the non-compliance does not constitute
contempt of court as it did not
result from
wilful
and
mala
fide
conduct
on their part. In this regard they relied on
Fakie
NO v CCII System (Pty) Ltd
[3]
.
[14]
The court order was served on the respondents. I have considered the
submissions made by the
applicants in their effort to prove that the
respondents acted wilfully and
mala fide
in breach of the
court order, however I will deal only with those which tend to prove
their case. In paragraph 4 of the court order
the first respondent is
ordered to instruct identified marshals to keep a register of those
persons present at the picket on a
daily basis and to provide the
register to the applicants as and when requested.
[15]
On 9 April 2019 NUMSA failed to provide the applicants with the
register. Mr Makoko on behalf
of NUMSA informed the applicants that
they were unable to provide the registers owing to some
technicalities. The technicalities
were not disclosed. The applicants
submitted that NUMSA’s purpose for not providing the registers
is an attempt to conceal
a clear violation of the court order in that
it failed to instruct its marshals to compile a register of its
members present at
the picket on 8 April 2019 or it is a means of
concealing those members of NUMSA who blocked the road on 8 April
2019. NUMSA’s
failure to provide an explanation for
non-compliance with provisions of paragraph 4 of the court order
supports the applicants’
submission that the non-compliance was
wilful
and
mala fide
.
[16]
Contrary to the respondents’ contentions, the applicants proved
the urgency of this application.
The violent conduct during the
strike and picketing requires an immediate enforcement of the court
order. Failure to provide the
register in terms of paragraph 4 of the
court order may appear to be but one paragraph of the order, however,
it has far reaching
consequences. Had the register been provided the
applicants would have been in a position to prove a number of
breaches of the
court order. The applicants seek a
rule nisi
and have fulfilled all the requirements.
[17]
In the premises the following order is made:
Order
:
1. The
application to suspend or vary the picketing rules is dismissed.
2. A rule
nisi issued calling upon the First Respondent to show cause on 7 June
2019 why an order should not be made
in the following terms:
2.1
the First Respondent is found guilty of contempt of court for failing
to comply with the
Court Order of 4 April 2019;
2.2
the First Respondent is fined in an amount that the Labour Court
deems appropriate.
2.3
the First Respondent is ordered to pay the costs of this application,
jointly and severally,
the one paying the other to be absolved.
3.
Service of this court order to be effected:
3.1
on the First Respondent by e-mailing same to the attorneys of
the First Respondent.
3.2
on the Second to Further Respondents and the Third to Further
Respondent by placing copies
of same at the entrances to the First
Applicant’s premises; and by sending a summarised version of
this Court Order to the
Second to Further Respondents and to the
Third to Further Respondents by way of SMS or WhatsApp.
Z.
Lallie
Judge
of the Labour Court of South Africa
Appearances:
For
the Applicant: Advocate
F Boda Sc
Instructed
by: Cliffe
Dekker Hofmeyr Inc
For
the Respondent: Advocate
De Vos
Instructed
by Cheadle
Thompson & Haysom
[1]
66
of 1995, as amended.
[2]
[1998]
11 BLLR 1116
(LC) para 8.
[3]
[2006] ZASCA 52
;
2006
(4) SA 326
(SCA).