About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2019
>>
[2019] ZALCJHB 228
|
|
Imperial Cargo a division of Imperial Logistics South Africa Group (Pty) Ltd v Democratised Transport Logistics and Allied Workers Union and Another (J4215/18) [2019] ZALCJHB 228 (11 September 2019)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: J 4215/18
In the matter between:
IMPERIAL CARGO a
division of IMPERIAL
LOGISTICS SOUTH AFRICA
GROUP (PTY) LTD Applicant
and
DEMOCRATISED TRANSPORT
LOGISTICS AND
ALLIED WORKERS
UNION
First
Respondent
LIST OF EMPLOYEES
WHOSE NAMES
APPEAR ON ANNEXURE “A”
TO THE NOTICE
OF MOTION
Second
Respondent
Heard: 7 August 2019
Delivered:
11 September 2019
JUDGMENT
TLHOTLHALEMAJE,
J
Introduction:
[1]
This Court on 12 December 2018 issued a
rule nisi
calling upon the first respondent (DETAWU) and its members, the
second to further respondents (The Employees) to show cause on
8 March 2019 why an order in the following terms ought not
be made final:
1.1.
declaring that the strike action by the first of the respondent
constitutes an unprotected
and unlawful strike;
1.2.
interdicting and restraining the first to further respondent from
participating and embarking
in an unprotected and unlawful strike or
in any intended conduct in furtherance, in contemplation of such
strike and to comply
with their contracts or any other conditions of
employment.
[2]
On the return date on 8 March 2019, the matter came before
van
Niekerk J who had extended the
rule nisi
to 16 May 2019.
DETAWU was further ordered to file an answering affidavit to the
urgent application within 14 calendar
days from the date of the
order, and to pay the wasted costs for that day. Thus, the answering
affidavit was to be filed no later
than 22 March 2019.
[3]
The answering affidavit was however filed and served on 9 May 2019,
some 47 calendar days after the 14 days since the order of van
Niekerk J. The answering affidavit was not accompanied by an
application
for condonation to explain the delay, and the applicant
had in its replying affidavit served and filed on 15 May 2019,
raised the same concerns.
[4]
As at 16 May 2019 when the matter came before
Nkutha-Nkontwana
J, the application for condonation had still not
been filed and delivered, and the
rule nisi
was extended to
7 August 2019, with DETAWU again being ordered to pay the
applicant’s costs.
[5]
On 7 August 2019, an application for condonation for the late
filing
of the answering affidavit was filed and delivered by DETAWU,
which the applicant had promptly opposed.
Condonation:
[6]
The
principles applicable to applications for condonation are trite. The
Court will determine whether good cause has been shown
for an
indulgence to be granted, taking into account the extent of the
delay, the explanation proffered in that regard, the applicant’s
prospects of success on the merits, any prejudice to the parties, and
the overall interests of justice
[1]
.
[7]
The starting point is that an applicant is required to bring such an
application
as soon as the need for it arises. This means that to the
extent that DETAWU was aware that the 14 day period as granted by van
Niekerk J had expired, it ought to have filed and served the
answering affidavit to the main application together with an
application
for condonation. It failed to do so.
[8]
Furthermore,
notwithstanding the fact that the issue of condonation was raised by
the applicant on 15 May 2019 in its
replying affidavit, or
the fact that the
rule
nisi
was extended by Nkutha-Nkontwana J on 16 May 2019, the
application for condonation was only filed and served on
2 August 2019.
In line with the principle that an
indulgence should be sought as soon it is acknowledged that the time
frames were not met, it
has further been said that the failure to do
is a further reason for refusing condonation, when there is no good
explanation why
this was not done timeously.
[2]
In this case, despite DETAWU being aware that the deadlines were not
met, as shall be demonstrated below, no attempt was made to
proffer
any good explanation.
[9]
The founding affidavit in support of the condonation application was
deposed
to by Mr. Thomas Mnyakeni (Mnyakeni), the acting provincial
chairperson of DETAWU. The extent of the delay, other than the 47
calendar
days after the deadlines set in van Niekerk J’s order,
is a further 80 odd days, which is indeed excessive.
[10]
The explanation for the delay as proffered by Mnyakeni is indeed
cavalier as described
by Mr Snider on behalf of the applicant.
Mnyakeni simply averred that subsequent to the Court order issued by
van Niekerk J, there
was a need for the union to consult with its
attorneys of record. However, due to his (Mnyakeni) prior commitments
in the Western
Cape in respect of disciplinary hearings, which had
been scheduled for a period of three weeks subsequent to the date of
the order,
it was not possible to have such consultations for a
period of three weeks. He further averred that when the answering
affidavit
was eventually drafted, it had to be delivered to counsel
to be settled. However, the affidavit could not be immediately
settled
as the union’s counsel fell ill.
[11]
Mnyakeni’s explanation as above is clearly thin in substance,
and no attempt was
made whatsoever to give a full account of the
delay from 22 March 2019 when the answering affidavit was
due, until the
application for condonation was filed and served on
7 August 2019. It is not known when Mnyakeni had ultimately
consulted
with attorneys of record; or when the founding affidavit
was drafted; or which weeks or on which dates during the three weeks
he
was not available for consultations with attorneys; or why any
other officials could not attend to the matter in his absence.
Similarly
as pointed out on behalf of the applicant, it is not known
why Mnyakeni could not give instructions and consult with attorneys
over the phone, by email or any other communication means. Inasmuch
as it was important for Mnyakeni to attend to his prior commitments
in Cape Town, of even greater importance was for him or DETAWU to
attend to the answering affidavit and to make sure that the timelines
were met. This was even moreso in the light of the alleged importance
of the case to the respondents.
[12]
As if that was not enough, it is further not known when counsel was
approached with instructions
to settle the founding affidavit; or
what ailment befell counsel, and for how long counsel was indisposed
for the purposes of settling
the affidavit. Worst still, it is not
explained why another counsel could not be briefed in the matter to
settle the papers, or
at most, and in the light of the realisation
that the deadlines could not be met, why leave from the Court or a
further indulgence
from the applicant could not be sought.
[13]
In the end,
the explanation proffered for the delay in filing the answering
affidavit is wholly inadequate. It is not reasonable
nor
satisfactory. It is indeed fallacious for the respondents to argue
that the delay was as a consequence of circumstances beyond
their
control, or that it was not wilful. A simple explanation that a union
official was too busy with other matters to attend
to an answering
affidavit within deadlines, or that counsel was too ill to settle the
answering affidavit can clearly not amount
to a good explanation. In
effect, that explanation in the words of
Moila
v Shai NO and Others,
amounts
to no explanation at all.
[3]
[14]
Given the excessive nature of the delay, and further in the absence
of reasonable
and acceptable explanation for the delay, there
would be no need for the Court to even consider the prospects of
success, which
are not even addressed by Mnyakeni in the founding
affidavit. Other than Mnyakeni making a cursory reference to a number
of points
of law having been raised in the answering affidavit, no
mention however is made in the founding affidavit that the answering
affidavit
should be read as incorporated in that affidavit. It is not
for the Court in the absence of such a prayer, to trawl through the
answering affidavit to find out what those points of law are insofar
as it is alleged that the prospects of success are great.
[15]
It
is appreciated as it was stated in
SA
Post Office Ltd v CCMA
[4]
that
each condonation application must be decided on its own facts bearing
in mind the general criteria. The LAC further stated
that while the
rules are there to be applied, they are not inflexible but the
flexibility is directly linked to and apportioned
in accordance with
the interests of justice; prejudice; prospects of success; and
finally, degree of delay and the explanation
thereof. The issue of
delay must be viewed in relation to the expedition with which the law
expects the principal matter to be
resolve.
[16]
In this case, the need for expedition, with which the law and the
interests of justice
expects the principal issues to be resolved,
seemed to have escaped the respondents. The
rule nisi
was
issued on 12 December 2018 in respect of issues that had
been on-going since early 2018. Despite the return date
as directed
by the Court on 12 December 2018, nothing prevented the
respondents from anticipating an earlier date, or
at the most, filing
an answering affidavit before the return date. Two further court
sittings could not bring the matter to finality,
with obvious
prejudice to the applicant. In the end, it cannot be in the interests
of justice to grant condonation in circumstances
where the
respondents’ approach to this matter has been cavalier and
where they have shown little interests in bringing the
dispute to an
end. In the circumstances, and in the light of good cause not having
been shown, it follows that condonation ought
to be refused.
[17]
The
applicant seeks an order that the
rule
nisi
issued on 12 December 2018 be confirmed. It is trite that
on the return date,
the
court is required to determine the substantive merits of the
applicant’s claim, and whether a final order ought to be
granted. Equally so, the Court must be satisfied that a proper case
has been made out for each facet of the relief sought.
[5]
[18]
Central to the determination of whether the
rule nisi
should be confirmed is whether a case was made out to demonstrate
that the strike or intended strike was unprotected. The
background facts to this dispute are that;
18.1
The applicant is in the business of transport logistics and
warehousing industry within the Republic
and other neighbouring
African countries. It transports consumable goods and freight cargo
from depot to depot and to and from
harbours and airports in and
around the Southern African region. The applicant has also entered
into various service level agreements
with several clients in terms
of which it is required to supply services to strict standards
and in large quantities. Some
of these clients includes Consol Glass,
Royal Canin, Safripol, Afrox and Distell.
18.2
During 2014, another union, SATAWU, referred a dispute about overtime
payments to the National
Bargaining Council for the Road Freight and
Logistics Industry (NBCRFLI) on behalf of about fourteen of its
members, who were employed
by the applicant to service the Distell
contract.
18.3
On 9 August 2014 the applicant and SATAWU concluded a
settlement agreement (The SATAWU
Agreement) in terms of which the
fourteen employees were to be paid a fixed amount of overtime
calculated at six hours per day
or a 30 hours per week irrespective
of the number of overtime hours that the employee might have worked.
18.4
It was further a term of the settlement agreement that those drivers
who were transferred to
other clients would no longer be covered by
the terms of the settlement agreement. In other words, the terms of
the settlement
agreement only covered employees who were employed to
service the Distell contract and as further identified in the
addendum to
the settlement agreement.
18.5
The applicant’s other employees who were assigned to
Safripol and Afrox contracts
were paid overtime in accordance with
the NBCRFLI Main Collective Agreement. In 2017 the Safripol contract
came to an end and as
a result, the applicant had embarked on a
retrenchment exercise in respect of those employees assigned to that
contract who were
also members of DETAWU.
18.6
A number of consultation meetings in respect of the retrenchment
exercise were held between the
applicant and DETAWU, leading to a
settlement agreement being concluded on 28 February 2018.
Seven employees represented
by DETAWU were offered positions within
the Distell contract as an alternative to dismissal. As this was not
a typical section
197 of the LRA transfer, the employees who took up
the offer at Distell were to do so on the same terms and conditions
as applicable
under the Safripol contract. Thus, any overtime pay was
to be made in accordance with the provisions of the Main Collective
Agreement,
i.e.
as per hours actually worked.
18.7
The seven employees that were transferred to Distell from Safripol
are members of the DETAWU.
In total, there are 30 employees servicing
the Distell contract, and DETAWU demanded that all of them be
paid a fixed amount
of overtime in accordance with the settlement
agreement concluded with SATAWU on 9 August 2014.
18.8
On 19
November 2018, DETAWU referred a dispute to the Commission for
Conciliation and Mediation (CCMA) alleging unilateral
changes to the
terms and conditions of employment of the Employees, who were
transferred from the Safripol Contract to Distell
Contract. It
alleged that the applicant had infringed the Employees’
conditions of employment as contemplated by the provisions
of section
64(4) of the Labour Relations Act (LRA)
[6]
and sought the restoration thereof.
18.9
In a letter
or notice dated 19 November 2018, DETAWU referred to a
letter dated 1 October 2018
[7]
in which it protested that its members were not being paid a fixed
rate of overtime, which constituted a unilateral change to the
terms
and conditions of employment of those Employees who were transferred
to the Distell contract. The applicant was given an
ultimatum to
restore the terms and conditions by 5 October 2018, failing
which DETAWU would be compelled to utilize the
remedies provided for
in section 64(4)
[8]
of the LRA.
18.10 In the
strike notice dated 19 November 2019, DETAWU implored the
applicant to restore the terms and
conditions within 48 hours of
receipt of that notice, failing which there would be industrial
action on 23 November 2018.
18.11 The
applicant’s stance was that the settlement agreement entered on
9 August 2014 with SATAWU
only applied to those employees
who were listed in the addendum to that settlement agreement and that
all other unlisted employees
were or are correctly paid overtime in
accordance with the actual number of hours worked in accordance with
the NBCRFLI Main Agreement.
It was the applicant’s view that
the ultimatum to commence with the industrial action and further the
withholding of labour
by the Employees would constitute an
unprotected industrial action.
18.12 On
21 November 2018 the applicant’s attorneys of record
wrote to DETAWU expressing the view that
the contemplated industrial
action would be unprotected on the basis that the union failed to
comply with the mandatory statutory
procedural requirements set-out
in the provisions of section 64(1) of the LRA, and further that the
allegation of the unilateral
change terms and conditions of
employment was without merit. DETAWU was given an ultimatum to
withdraw the strike notice by no
later than 17h00 on
21 November 2018, and to further provide a written
undertaking that the contemplated industrial action
would not
proceed. On the same date, DETAWU notified the applicant that the
intended industrial action would be suspended pending
further
meetings scheduled for 28 November 2018.
18.13 The
various meetings held between the parties failed to resolve the
matter as at 11 December 2018, and
DETAWU issued another
strike notice, informing the applicant that the contemplated
industrial action, as per the first strike notice,
would resume with
immediate effect.
[19]
The applicant’s case in seeking that the
rule nisi
be
confirmed is that the Employees’ terms and conditions of
employment are covered by the NBCRFLI Main Agreement, with the
Council being the exclusive forum for the negotiation and conclusion
of agreements on substantive issues between employers and
employees.
It was submitted that DETAWU seeks to call out an industrial action
in respect of issues which are substantive in nature
and which fall
within the jurisdiction of the Main Agreement. In this regard, it was
submitted that the underlying dispute pursued
by the respondents is
for an increase in the payment of overtime in excess of the
provisions of the Main Agreement, and that section
57 of the Main
Agreement specifically prohibited strike action in respect of
substantive issues.
[20]
In the light of the above, it is apparent that the dispute between
the parties is alive,
more particularly with regard to the
respondents’ belated opposition to the confirmation of the
rule
nisi.
Further as submitted on behalf of the applicant, the SATAWU
Agreement that the respondents seek to be extended to them is not
applicable
to them in the light of the specific employees mentioned
in the addendum to that agreement. To the extent that the intended
strike
action would be unlawful and unprotected, I am satisfied that
the applicant has established a
prima facie
right to the
relief that it seeks in view of the fact that the intended strike
is unprotected by virtue of the provisions
of section 65(3) of the
LRA. I am further satisfied that should the industrial action
proceed, this would obviously cause irreparable
harm to the applicant
in relation to its relationship with the contracts it services, and
further in circumstances where the strike
would be unlawful. In the
end, the applicant has no other alternative remedies, and I am
further satisfied that the balance of
convenience favours that the
rule nisi
be confirmed. Accordingly, the applicant has made
out
a proper case for each facet of the relief it
seeks.
[21]
The conduct of the respondents since the
rule nisi
was issued
on 12 December 2018 is taken into account when regard is
had to an award of costs. In the light of the conclusions
reached in
regards to the application for condonation, it is my view that
considerations of law and fairness dictate that DETAWU
in particular,
be burdened with the costs of the failed application for condonation
and of the main application.
[22]
In the premises, the following order is made;
Order:
1. The
application for condonation for the late delivery of the First,
Second and Further Respondents’ answering
affidavit is
dismissed.
2. The
Rule
Nisi
issued by this Court on 12 December 2019 is
confirmed.
3. The First
Respondent is ordered to pay the costs of the application for
condonation, together with the costs of this
application.
___________________
Edwin
Tlhotlhalemaje
Judge
of the Labour Court of South Africa
Appearances:
For
the Applicant: A. Snider, instructed by
Cliffe Dekker Hofmeyr
For
the First, Second and Further Respondents: P. Malesela,
instructed by Madlela Gwebu Mashamba Incorporated
[1]
Brummer
v Gorfil Brothers Investments
(Pty)
Ltd
[2000] ZACC 3
;
2000 (5) BCLR 465
;
2000 (2) SA 837
(CC) at para 3
[2]
Librapac
CC v FEDCRAW & others
(1999) 20 ILJ 1510 (LAC) at 1513, para [13]
[3]
[2007] 5 BLLR 432
(LAC) at para 34, where it was held that;
“
I
do not have the slightest hesitation in concluding that this is a
case where the period of delay is excessive and the appellant’s
purported explanation for the delay is no explanation at all. I
accept that the case is very important to the appellant. However,
the weight to be attached to this factor is too limited to count for
anything where the period of delay is as excessive as is
the case in
this matter and the explanation advanced is no explanation at all.
If ever there was a case in which one can conclude
that good cause
has not been shown for condonation without even considering the
prospects of success, then this is it. Where,
in an application for
condonation, the delay is excessive and no explanation has been
given for that delay or an “
explanation”
has
been given but such “
explanation”
amounts to
no explanation at all, I do not think that it is necessary to
consider the prospects of success.
[4]
[2012]
1 BLLR 30
(LAC) at para [23]
[5]
Polyoak
(Pty) Ltd v Chemical Workers Industrial Union & others
(1999)
20 ILJ 329 (LC) at 395 para B
[6]
Act 66 of 1995
[7]
Letter dated 1 October 2018:
Re:
unilateral change to the terms and conditions of employment at
Distell and Consol Klip Wadeville
…
Will
referred to the above matter and further which were values that
prior to serving the company with the referral as required
by
section 64(4) of the LRA, would like to check your final position
regarding the above changes which occurred the above-mentioned
contract.
We
further would like to remind the company that the said changes or
capturing the transfer of the employees from Safripol to
Distell
Contract, the previous arrangement prior to transferring company use
to remunerate these employees 7 fax over time when
performing duties
at Distell. But the Consol Klip matter will referred to the change
that affects one employee Mr Mahlangu which
was discussed with Carel
Malan without reaching an agreement.
In
the light of the above we still hold the view that this matter can
be resolved between the parties without involving that the
parties.
We
await your response, should we not hear from you before the close of
business on fifth of October 2018 will be left with no
other option
but to invoke section 64(4) of the LRA.
[8]
Section 64.
Right
to strike and recourse to lock-out
(1)
Every
employee
has the right to strike and every employer has
recourse to lock-out if -
(
a)
the
issue in dispute
has been referred to a
council
or
to the Commission as required by
this Act
, and
(i)
a certificate stating that the
dispute
remains unresolved has
been issued; or
(ii)
a period of 30 days, or any extension of that period agreed to
between
the parties to the
dispute
, has elapsed since the
referral was received by the
council
or the Commission; and
after that -
(
b)
in the case of a proposed
strike
, at least 48 hours
‘notice of the commencement of the
strike
, in writing,
has been given to the employer, unless -
(i)
the
issue in dispute
relates to a
collective agreement
to
be concluded in a
council
, in which case, notice must have
been given to that
council
; or
(ii)
the employer is a member of an
employers’ organisation
that
is a party to the
dispute
, in which case, notice must have
been given to that
employers’ organisation
; or
(
c)
in the case of a proposed
lock-out
, at least 48 hours
‘notice of the commencement of the lockout, in writing, has
been given to any
trade union
that is a party to the
dispute
,
or, if there is no such
trade union,
to the
employees,
unless
the issue in dispute
relates to a collective
agreement to be concluded in a
council
, in which case, notice
must have been given to that
council;
or
(
d
in the case of a proposed
strike
or
lock-out
where
the State is the employer, at least seven days ‘notice of the
commencement of the
strike
or
lock-out
has been given
to the parties contemplated in paragraphs
(b)
and
(c).
…
(3)
The requirements of subsection (1) do not apply to a
strike
or
a
lock-out
if -
(
a)
the parties to the
dispute
are members of a
council
and the
dispute
has been dealt with by that
council
in
accordance with its constitution;
(
b)
the
strike
or
lock-out
conforms with the
procedures in a
collective agreement
;
(
c)
the
employees
strike in response to a
lock-out
by
their employer that does not comply with the provisions of this
Chapter;
(
d)
the employer locks out its
employees
in response to their
taking part in a
strike
that does not conform with the
provisions of this Chapter; or
(
e
the employer fails to comply with the requirements of
subsections 4) and (5).
(4)
Any
employee
who or any
trade union
that refers a
dispute
about a unilateral change to terms and conditions or
employment to a
council
or the Commission in terms of
subsection (1)
(a)
may, in the referral, and for the period
referred to in subsection (1)
(a)
-
(
a)
require the employer not to implement unilaterally the change to
terms and conditions of employment; or
(
b)
if the employer has already implemented the change unilaterally,
require the employer to restore the terms and conditions of
employment
that applied before the change.