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[2020] ZALCJHB 63
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Plastic Convertors Association of South Africa (PCASA) obo Members and Others v National Union of Metal Workers of South Africa (NUMSA) and Others (J3725/18) [2020] ZALCJHB 63; [2020] 7 BLLR 690 (LC) (13 March 2020)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case
no: J3725/18
In
the matter between:
PLASTIC
CONVERTORS ASSOCIATION OF SOUTH First
Applicant
AFRICA
(PCASA) OBO MEMBERS
DPI
PLASTICS
Second
Applicant
UBUNTU
PLASTICS Third
Applicant
POLYOAK
PLASTICS
Fourth
Applicant
PLASTI
PROFILE Fifth
Applicant
NYLOPAK Sixth
Applicant
BOWLER
PLASTICS
Seventh Applicant
And
NATIONAL
UNION OF METAL WORKERS OF SOUTH First
Respondent
AFRICA
(NUMSA)
PARTICIPANTS
IN PROTEST ACTION
Second
Respondent
THE
SOUTH AFRICAN POLICE SERVICES Third
Respondent
Date
heard: 11 December 2019
Delivered:
13 March 2020
Summary:
Practice Manual - Clause 13
contempt procedure
– Not
inconsistent with rule 7 of the Labour Court Rules. Clause 13
is designed to give effect to the rules of the Labour
Court. In
so doing it provides access to justice and promotes the statutory
imperative of expeditious dispute resolution.
Practice
Manual - Clause 13 contempt procedure –
Not inconsistent
with the normal approach adopted in contempt of court applications
and the
audi
alteram
principle not violated.
Practice
Manual - Clause 13 contempt procedure
- A rule
nisi
on its own is not equivalent to, and does not automatically operate
as, an interim order.
Practice
Manual - Clause 13 contempt procedure -
Constitutionally
compliant.
JUDGMENT
CONRADIE,
AJ
[1]
This is an
application by PCASA and certain of its members (jointly referred to
as the applicants) to hold the first respondent
(NUMSA) in contempt
of court for failing to adhere to the terms of a strike interdict.
[2]
The
relief sought is the imposition of a fine of R1 000 000.00
(one million rand) on NUMSA. Initially, contempt
proceedings
were also instituted against NUMSA’s General Secretary, Irvin
Jim (Jim), and its Engineering Sector Co-ordinator,
Vusumuzi Mabho
(Mabho). However, they were incorrectly cited in their official
capacities as opposed to in their personal
capacities.
[1]
As a result, PCASA subsequently conceded that this was a material
non-joinder and no longer seeks relief against Jim and
Mabho.
[3]
NUMSA opposes the
contempt application and has in turn brought a counter- application
challenging the contempt procedure contained
in clause 13 of the
Practice Manual of this Court.
Background
Facts
[4]
On 15 October 2018
NUMSA’s members in the plastics sector went on strike in
support of their demand for increased wages and
improved working
conditions.
[5]
As a result of a
number of violent attacks during the strike, the applicants
approached this Court for an urgent interdict on 18
October 2018.
[6]
By consent between
the parties, a rule
nisi
was issued on 19 October 2018 by Moshoana J, pending a return date of
13 December 2018.
[7]
In
terms of the rule
nisi
,
an interim order was granted (interim strike interdict) interdicting
and restraining the respondents, their followers and supporters.
The relevant portions of the interim strike interdict provides as
follows –
3.
A rule nisi, with return date Thursday, 13 December 2018 at 10h00 to
be determined by this Honourable Court, is issued calling
on the
respondents to show cause why an order in the following terms should
not be made final:
3.1
Interdicting and restraining the first and second respondents
protestors, including their followers and supporters from directly
or
indirectly:
3.1.1
Participating in protest action within 150 meters from any entrance
or exit of the second to sixth applicants’ premises
which are
situated in the Roodekop Wadeville Industrial Park – but
excluding the agreed picketing area as ordered by this
Court in
matter J3733/18 on 18 October 2018; and within 150 meters from the
seventh applicant’s business premises entrances
at 10 Loper
Street Aeroport, Isando, Kempton Park and at Fabian Street Boksburg
Ekurhuleni.
3.1.2
Taking part in or instigating unlawful behaviour that may result in
damage to any property of the applicants, or the infringement
of the
rights of any staff member and/or visitor to the applicants’
premises;
3.1.3
Blocking any entrance or exit to the applicants’ premises or
preventing delivery vehicles form (sic) entering
of (sic)
exiting the business premises of the applicants;
3.1.4
Obstructing or preventing ingress or egress of staff or visitors to
the applicants’ business premises; and from interfering
with
the access control to any of the entrances to the applicants’
premises; and unlawfully interfering with the proper working
of the
applicants’ property or property under the applicants’
control;
3.1.5
Infringing the traffic rules on the applicants’ premises and
adjacent public roads;
3.1.6
Unlawfully disrupting or otherwise interfering in any way with the
normal activities of the applicants’ business;
3.2
Interdicting and restraining the first and second respondents and,.
where applicable, their supporters and/or followers from
participating in, calling for, supporting, encouraging or inciting
unlawful behaviour, violence, causing damage to property and
from
intimidating, threatening, harassing or harming;
3.2.1
Any employees of the applicants;
3.2.2
Any visitor of the applicants;
3.2.3
Any service providers of the applicants;
3.2.4
Or any other person present on the applicants’ premises;
3.3
Restraining the first and second respondents and, where applicable,
their supporters and/or followers from carrying firearms,
or
dangerous weapons defined in the
Dangerous Weapons Act 15 of 2013
, or
axes, sjamboks, knobkieries, golf clubs, hammers, assegais, knifes
(sic) or other sharp objects, sticks of any kind at, or
near the
entrance of the applicants’ premises;
3.4
Restraining the first and second respondents, and where applicable,
their supporters and/or followers from vandalising property
or
illegally occupying any buildings on the properties of the
applicants;
3.5
The SAPS and/or Public Order Policing Unit (the third respondent) are
directed to enter upon any premises of the applicants
there and any
other member of the first applicant’s premises to ensure
compliance with this Order and to prevent unlawful
conduct at any of
the first applicant’s and its members’ premises, which
may include ensuring that the protestors remain
150 meters from the
entrance or exit of any (sic) the first applicant’s members’
premises;
4.
The first respondent and its officials are ordered to take all
reasonable steps to encourage its members, supporters and followers
not to engage in any unlawful conduct;
5.
This order should be served on the first respondent’s members,
the second respondents by serving it on the first respondent
(or its
attorneys) by email, fax or hand, and by displaying it prominently at
all entrances of the applicants’ members’
premises;
6.
The first respondent is ordered to publically (sic) call upon its
members, to abide by the provisions of this order to the striking
employees and participants in the protest action who are present at
such time at the second to seventh applicants’ members’
premises, in such languages which are commonly used for communication
by them within 4 hours of receipt of this order”.
[8]
Notwithstanding
the interim strike interdict, numerous violent attacks occurred at a
number of PCASA’s members’ facilities
across the country.
[9]
In response, on 1
November 2018, the applicants launched an urgent contempt application
in this Court, on an
ex
parte
basis, claiming that NUMSA and its officials (namely Jim and Mabho)
had wilfully disregarded the interim strike interdict.
The
Contempt Application and the Counter-Application
[10]
In its founding
papers in the contempt application, the applicants complained that
NUMSA, its members, supporters and/or participants
had violated the
terms of the interim strike interdict in that they:
10.1
caused
unlawful injuries to and disregarded the 150 meter perimeter
restriction at the premises of Bowler Plastics (seventh applicant);
10.2
instigated
disruptive or riotous behaviour that resulted in damage to the
property of PCASA’s members;
10.3
infringed on
the rights of non-striking employees (including the right not to be
intimidated and the right to a safe working place);
10.4
blocked
entrances preventing ingress and egress;
10.5
unlawfully
disrupted normal business activities of PCASA’s members;
10.6
acted in
concert and formed a common purpose to act unlawfully and cause
maximum damage to plastics employers;
10.7
acted
violently;
10.8
harassed and
assaulted non-striking employees;
10.9
caused
widespread and severe damage to property;
10.10
carried
prohibited weapons which were used in the destruction of property;
10.11
vandalised the
property of certain of PCASA’s members;
10.12
acted in
concert for the common purpose to exhort maximum pressure on plastics
employers to surrender to their demands; and
10.13
used
the same
modus
operandi
at all the premises which were attacked.
[11]
The applicants
further complained that NUMSA and its officials did not take
reasonable steps to ensure compliance with this Court’s
order
by discouraging its members and supporters from engaging in unlawful
conduct, despite the restraining orders. Similarly,
that NUMSA did
not control its members or supporters. Therefore, paragraphs 4
and 6 of the interim strike interdict had been
breached and the
contempt was wilful and
mala
fide.
[12]
The contempt
application was heard on 2 November 2018 and the following order (the
contempt order) was made:
“
Having
read the documents and having considered the matter
IT
IS ORDERED THAT:
1.
The
provisions of the Rules of this Court pertaining to times and manner
of service referred to therein, are condoned and dispensed
with, and
that this matter be considered and dealt with as a matter of urgency
in terms of Rules 8 of the Rules of this Court;
2.
The
service of this order together with the notice of motion and founding
papers shall be effected on the first respondent and on
its
representative Irvin Jim N.O and Vusumzi Mabho N.O by service on its
attorneys Haffegee Roskam Savage by hand or electronic
transmission.
3.
The
applicant is granted leave to supplement its founding affidavit
within 5 days hereof.
4.
The
respondents may explain their conduct, should they wish to, by way of
affidavit within 10 (ten) days of service of this order
(although
this will not excuse them from being present in Court on the return
date);
5.
A Rule
Nisi is hereby issued calling on the first respondent, represented by
Irvin Jim N.O and Vusumzi Mabho N.O, to appear in the
Labour Court on
1 February 2019 at 10h00 to show cause why a final order should not
be made in the following terms:
5.1
Declaring first respondent and Irvin Jim N.O and Vusumzi Mabho N.O
are in contempt of court of the Order by the Honourable Mr
Justice
Moshoana on 19 October 2018 under case number J3725/18;
5.2
Imposing on the first respondent a fine of R1,000 000.00 [one million
rand] or such other fine as deemed appropriate by the
above
Honourable Court;
5.3
Imposing on Irvin Jim N.O and Vusumzi Mabho N.O fines of R100 000.00
[one hundred thousand rand] each or such other fine as
deemed
appropriate by the above Honourable Court, further alternatively
imposing such other sentence upon them as this Honourable
Court deems
fit.
5.4
The costs of this Application to be paid by the first respondent, on
an attorney and own Client scale, alternatively by those
respondents
who oppose the application”.
[13]
On 3 December 2018
NUMSA filed its answering affidavit in opposition to the contempt
application. The answering affidavit
was also used in support
of a three-pronged counter-application in which NUMSA challenged the
contempt procedure contained in clause
13 of the Practice Manuel of
this Court on the basis that it:
13.1
impermissibly
amends or overrules the rules of this Court [rule 7], making it
inconsistent with section 173 of the Constitution;
13.2
impermissibly
disregards the principles of substantive law, insofar as they do not
require the applicant to fully explain why giving
notice to an
interested party would defeat the very object of the order sought.
This disregard for substantive law is impermissible
and inconsistent
with the powers of this court in terms of section 173 of the
Constitution;
13.3
infringes on a
litigant’s rights in terms of section 34 of the Constitution.
[14]
It is necessary for
me to deal with the counter-application first. Only if it fails
will I have to deal with the merits of
the contempt application.
The
Counter-Application
Challenge
1 - Contrary to rule 7
[15]
NUMSA argues that in
terms of section 173 of the Constitution, the Labour Court has the
inherent power to protect and regulate its
own processes in the
interests of the administration of justice.
Section
173 of the Constitution provides as follows:
“
Inherent
Power
173.
The Constitutional Court, the Supreme Court of Appeal and the High
Court of South Africa each has the inherent power to protect
and
regulate their own process, and to develop the common law, taking
into account the interests of justice.
[S.
173 substituted by s. 8 of the Constitution Seventeenth Amendment Act
of 2012.]”
[16]
With
reference to the case of
Western
Bank Limited v Packery
[2]
,
NUMSA
argues that even if in the interests of justice, there are limits on
a court’s inherent power
to
do as it wishes in the field of adjectival law. This is because
the rules of court are delegated legislation, have statutory
force
and are binding on courts.
[17]
NUMSA argues that
clauses 13.1 and 13.2 of the Practice Manual exceed the ambit of the
Court’s power because these clauses
have sought to change
substantive law and the rules of the Labour Court. Clause 13 of
the Practice Manual provides as follows:
13
CONTEMPT OF COURT
13.1
It has been found that applications for contempt of court are so
varied and often fail to meet the minimum requirement to obtain
the
relief sought. This is often discovered months after the application
was launched. In order to avoid this and the prejudice
which results
therefrom an application for contempt of Court must be launched on an
ex parte basis on a Friday in Motion Court,
where the applicant must
seek an order that the respondent be ordered to appear at the Labour
Court to show cause why it should
not be held to be in contempt.
13.2
An application which seeks for the court to make a finding that a
party is in contempt of an order of the Labour Court must
be made ex
parte by way of a notice of motion accompanied by a founding
affidavit. The notice of motion must seek an order in the
following
terms:
a.
That the respondent, [Chief Executive officer/Director
General/owner/proprietor of the respondent] (full and proper names)
appear
in the Labour Court on (date) of (month) 2012 at 10 am to show
cause why he/she should not be found guilty of contempt of court
for
failing to comply with the order of this court dated xyz;
b.
that the respondent may explain its conduct by way of affidavit on
the date of hearing or before that date (although this will
not
excuse him/her from being present in court);
c.
that in the absence of providing an explanation to the satisfaction
of the Court, or failing to appear in Court despite being
properly
served, the respondent(s) be found guilty of contempt and that;
the
respondent(s) be incarcerated for such period as the Court deems
appropriate; or for the respondent(s) to be fined in an amount
the
court deems appropriate; or other alternative relief;
d.
That service of this order be effected personally upon the respondent
[Chief Executive officer/Director General/owner/proprietor
of the
respondent].
[18]
According to NUMSA,
rule 7 of the Labour Court Rules applies to all applications in this
Court, (except for reviews and interlocutory
applications) and as
such it is the only rule that deals with applications for contempt of
court. As rule 7(1) requires that
an application must be
brought on notice to all persons who have an interest in the
application, NUMSA should have been given notice
of the contempt
application. Yet, NUMSA was not given notice because clauses
13.1 and 13.2 of the Practice Manual stipulates
that applications for
contempt must be made
ex
parte
.
This is clearly in direct conflict with rule 7(1) as NUMSA sees it.
[19]
According
to the Constitutional Court in
Mukaddam
v Pioneer Foods (Pty) Ltd and Others
[3]
,
“
Section
173 makes plain that each of the superior courts has an inherent
power to protect and regulate its own process and to develop
the
common law on matters of procedure, consistently with the interests
of justice. The language of the section suggests that each
court is
responsible and controls the process through which cases are
presented to it for adjudication. The reason for this is
that a court
before which a case is brought is better placed to regulate and
manage the procedure to be followed in each case so
as to achieve a
just outcome.”
[20]
Clause 13 was
introduced to control the process through which contempt of court
applications are heard, and regulates and manages
the procedure to be
followed to achieve a just outcome. That this procedure is in
the interests of justice is apparent, if
regard is had to the reason
for its introduction.
[21]
According to Mr
Myburgh SC
,
who appeared on
behalf of the applicants, in the typical case of an employer failing
to comply with an award or judgment, in order
for the employee to
secure justice, the employer must be brought before court and
afforded a hearing as soon as possible, before
a decision is made on
the issue of contempt. Clause 13 facilitates this and is in
essence no more than an elaborate notice
of set down, with the clout
of a court order. It puts a stop to employers continuing to run
rings around employees who have
awards or judgments in their favour.
[22]
In
Macsteel
Trading Wadeville v Van der Merwe NO & others
[4]
,
the Labour Appeal Court held that:
“
The
underlying objective of the Practice Manual is the promotion of the
statutory imperative of expeditious dispute resolution.
It enforces
and gives effect to the Rules of the Labour Court and the provisions
of the LRA. It is binding on the parties and the
Labour Court. The
Labour Court does, however, have a residual discretion to apply and
interpret the provisions of the Practice
Manual, depending on the
facts and circumstances of a particular case before the court”.
[23]
In
Samuels
v Old Mutual Bank
[5]
the Labour Appeal Court held that:
“
[14]
The consolidated practice manual which came into operation on 2 April
2013 constitutes a series of directives issued by the
Judge President
over a period of time. Its purpose is, inter alia, to provide access
to justice by all those whom the Labour Court
serves; promote
uniformity and/or consistency in practice and procedure and set
guidelines on standards of conduct expected
of those who practise and
litigate in the Labour Court. Its objective is to improve the quality
of the court's service to the public,
and promote the statutory
imperative of expeditious dispute resolution.
[15]
The practice manual is not intended to change or amend the existing
Rules of the Labour Court but to enforce and give effect
to the
Rules, the Labour Relations Act as well as various decisions of the
courts on the matters addressed in the practice manual
and the Rules.
Its provisions therefore, are binding. The Labour Court's discretion
in interpreting and applying the provisions
of the practice manual
remains intact, depending on the facts and circumstances of a
particular matter before the court
.
[24]
I
do not believe that clause 13 is inconsistent with rule 7.
Clause 13 is designed to give effect to the rules of the Labour
Court. In so doing it provides access to justice and promotes
the statutory imperative of expeditious dispute resolution.
The
Practice Manual came about in circumstances where the Rules Board
ceased functioning in 2002 (and was only re-established in
late
2017). That necessitated the addressing of issues of practice
and procedure by the Judge President by means of the Practice
Manual.
[6]
A speedy and effective dispute resolution system is the foundation of
the LRA. Any frustration of the ability to enforce
arbitration
awards and judgments of this Court, shakes that foundation and
threatens its collapse. It is clearly in the interests
of
justice that this Court develops a procedure that addresses the
concern in question.
[25]
In addition, the
existence of rules does not oust a court’s inherent power to
protect and regulate its own process and to
develop the common law on
matters of procedure, in the interests of justice. This power
remains in place notwithstanding
any rules which may have been
promulgated.
[26]
Section 171 of the
Constitution gives a court the authority to introduce rules. In
terms of this section, “
All
courts function in terms of national legislation, and their rules and
procedures must be provided for in terms of national legislation.”
In
respect of the Labour Court, section 159 of the Labour Relations Act,
1995 (the LRA) establishes the Rules Board and gives it
the power to
make rules. What section 173 of the Constitution does is to
reserve for a court the inherent power to protect
and regulate its
processes, should the need arise.
[27]
In
Phillips
and Others v National Director of Public Prosecutions
[7]
the court held that:
“
[47]
The Constitution requires that judicial authority must vest in the
courts which must be independent and subject only to the
Constitution
and the law. Therefore, courts derive their power from the
Constitution itself. They do not enjoy original jurisdiction
conferred by a source other than the Constitution. Moreover, in
procedural matters, section 171 makes plain that “[a]ll courts
function in terms of national legislation and their rules and
procedures must be provided for in national legislation.” On
the other hand section 173 of the Constitution preserves the inherent
power of the courts to protect and regulate their own process
in the
interests of justice. In S v Pennington and Another, this Court held
that:
“
It
is a power which has to be exercised with caution. It is not
necessary to decide whether it is subject to the same constraints
as
the ‘inherent reservoir of power to regulate its procedures in
the interests of the proper administration of justice’
which
vested in the Appellate Division prior to the passing of the 1996
Constitution. Even if it is subject to such constraints,
the present
situation, in which there is a vacuum because the legislation and
rules contemplated by the Constitution have not been
passed, is an
extraordinary one in which it would be appropriate to exercise the
power.”
[48]
In Parbhoo and Others v Getz NO and Another too, this Court turned to
its “inherent power” to meet an “extraordinary”
procedural situation pending enactment of relevant legislation and
promulgation of rules of procedure. In both cases the points
are made
that ordinarily the power in section 173 to protect and regulate
relates to the process of court and arises when there
is a
legislative lacuna in the process. The power must be exercised
sparingly having taken into account interests of justice in
a manner
consistent with the Constitution”.
[28]
The need for the
Labour Court to regulate and protect its processes arose in respect
of the contempt procedure and the court responded
accordingly by
introducing clause 13 in the Practice Manual. This response is
consistent with the court’s powers in
terms of section 173.
[29]
For the above
reasons, the first prong of the counter-application fails.
Challenge
2 - Audi Alteram Partem
[30]
NUMSA accepts that
there will be circumstances where it may be justified to bring an
ex
parte
application
and that this is permitted in terms of rule 7, alternatively rule
11. However, instead of requiring an applicant
to justify
proceeding
ex
parte
,
clauses 13.1 and 13.2 of the Practice Manual make it mandatory that
all applications for contempt of court be brought on an
ex
parte
basis, which subverts substantive law.
[31]
NUMSA further
contends that the duty to explain to a court why notice could not, or
should not, be given is an essential requirement
of our law, because
ex parte
applications deprive a litigant of the fundamental right to be heard
before an order is given.
[32]
In the circumstances,
NUMSA submits that it is impermissible for the Labour Court, through
the Practice Manual, to disregard the
audi
alteram partem
principle in relation to orders for contempt, even if the order is
not final. Further, that this Court lacks the authority
or
competence to amend or vary the substantive law through the
provisions of the Practice Manual.
[33]
PCASA
argues,
inter
alia
,
that even if the contempt order implies that the court was satisfied
that a
prima
facie
case had been made out, NUMSA suffered no material prejudice as the
order has no formal legal effect. It is simply a rule
nisi
without interim relief.
[8]
I agree with this submission.
[34]
It
is clear from the contempt order that there is no reference in the
order to the terms of the rule
nisi
operating as interim relief pending the return date. A rule
nisi
on its own is not the equivalent of an interim order. To argue
otherwise is to conflate the two instruments. In
Drotske
NO and Another v Coetzee
[9]
the High Court dealt with a contempt application in relation to a
rule
nisi
that was issued in relation to a spoliation order. The rule
nisi
did not specify that the order was to act as an interim
order/interdict. Ebrahim J held the following:
“
[10]...
Intrinsic to our system of constitutional jurisprudence is the audi
alteram partem rule. A court will normally not grant
an order
directly affecting the rights of a person and which may involve far
reaching consequences to him/her without giving that
person an
opportunity of being heard. This principle has found expression in a
rule of practice that in ex parte applications brought
without
notice, the court will order a Rule nisi to issue where the rights of
other persons may be affected by the order sought.
Herbstein and Van
Winsen: The Civil Practice of the Superior Courts, 5th Edition at 455
defines a Rule nisi thus:
“
an
order directed to a particular person or persons calling upon him or
them to appear in court on a certain date to show cause
why the Rule
should not be made absolute; or, in other words, why the court should
not grant a final order. In a proper case, for
example, an urgent
application for an interdict, the court may grant interim relief by
ordering that the Rule nisi will operate
as a temporary interdict.
This rule of practice should be applied and followed unless sound
reasons exist to depart from it.”
10.1
The Rule nisi is therefore fundamental to both procedural and
substantive fairness, that is its main purpose, for it allows
flexibility in circumstances where a rigid application of the audi
alteram partem rule might have the effect of defeating the very
rights sought to be enforced or protected.
10.2
Where a temporary interdict is necessary to prohibit a party from
doing something until cause is shown by him against it, the
court is
asked to make a specific order that the Rule nisi should act
immediately as a
temporary
interdict, pending the return day. The utility of the Rule nisi
acting at the same time as an interim order has been endorsed
by the
courts. (SAFCOR FORWARDING (JOHANNESBURG) (PTY) LTD v NATIONAL
TRANSPORT COMMISSION
1982 (3) SA 654
(A) at 674 H – 675 A)
10.3
Consequently I do not agree with Mr Grobbelaar’s interpretation
that the Rule nisi is but one of two options which an
ex parte
applicant for interim relief has on approaching the courts, i.e.
either to ask for it indirectly through and by virtue
of a Rule nisi
or directly by spelling it out coupled to a Rule nisi (“the
rule nisi is to operate as a temporary interdict
with immediate
effect pending the return date”).
10.4
On his interpretation, the omission of the interim order in Mocumie
J’s ruling of 27 June 2012, is not fatal to the applicants’
case because the Rule nisi is an interim order. But he is not
supported by authority for as was made clear by Corbett CJ in SHOBA
v
OFFICER COMMANDING, TEMPORARY POLICE CAMP, WAGENDRIFT DAM, AND
ANOTHER; MAPHANGA v OFFICER COMMANDING, SOUTH AFRICAN POLICE MURDER
AND ROBBERY UNIT, PIETERMARITZBURG, AND OTHERS
1995 (4) SA 1
(A) at
19 D – H where the learned Judge discussed the distinction
between a Rule nisi and an Anton Piller order:
“
A
rule nisi..., contemplates that the relief sought will only be
granted at some future date after the respondent has had time to
show
cause that it should not be granted... the interim interdict attached
to a rule nisi usually seeks to maintain the status
quo ante whereas
an Anton Piller order gives instant relief subject to the possibility
of a later variation or discharge of the
order.”
10.5
Shoba makes it clear that the Rule nisi is not another name for an
interim order/interdict. The two are not interchangeable.
That is the
law and the applicants must show that the respondent has acted
wilfully and deliberately in contravention of the court
order of 27
June 2012 to succeed with their contempt application. They have not
done so. Whilst I find that knowledge of the court
order of 27 June
2012 on the part of respondent has been proved by the applicants,
that
in itself is of no moment in light of the failure of the order to
inform the respondent that the Rule nisi was to operate as
an interim
interdict with immediate effect pending the return day.
[My
emphasis]
[35]
In the absence of an
interim order it is not open to NUMSA to argue that it has been
prejudiced by the issuing of the rule
nisi
.
[36]
The
contempt procedure contained in the Practice Manual is also
consistent with the normal approach adopted in contempt of court
applications. In
Matjhabeng
Local Municipality v Eskom Holding Limited and others
[10]
the
High Court issued a rule
nisi
on an
ex
parte
basis calling upon the municipal manager to file an affidavit setting
out why he should not be held in contempt of court for non-compliance
with a court order. After doing so and having appeared in court
on the return date when he gave evidence, he was declared
to be in
contempt of court. On appeal, the Constitutional Court
commented on the summary procedure in contempt proceedings.
Nkabinde ADCJ, on behalf of a unanimous court, held as follows:
“
[79]
The appropriateness of the summary contempt procedure in Matjhabeng
also requires this Court’s attention. The common
law procedure
for the commencement of contempt proceedings, in cases of contempt
while a court is not sitting (ex facie curiae)
− like in the
present cases – contrasts with contempt that occurs in or near
a court. The former has been described
as follows by the Appellate
Division in Keyser:
“
[I]n
every case of contempt ex facie curiae dealt with by our courts
without a criminal trial, the proceedings were commenced by
an order,
served upon the offender, containing particulars of the conduct
alleged to constitute the contempt of court complained
of, and
calling upon the offender to appear before the court and to show
cause why he should not be punished summarily for the
alleged
contempt of court. Sometimes the order has been issued on the
application of the Attorney-General, sometimes it has been
issued by
the court mero motu [of its own accord], but in every case it has
informed the offender of the case he has to meet, and
in every case
it has allowed him sufficient time to consult counsel, to prepare his
defence and to decide whether he will give
evidence on oath or not.”
This
general approach is constitutionally compliant. It affords the
respondent procedural safeguards while ensuring that the authority
of
the court is vindicated”.
[my emphasis]
[37]
Mr Berger SC, who
appeared on behalf of NUMSA, argued that the context of
Matjhabeng
was very different to the context of the present application.
According to him, in
Matjhabeng
the issue was not how the municipal manager was brought to court, but
rather how he was treated once at court. As such, the
dictum
that “
this
general approach is constitutionally compliant
”
is
obiter
.
[38]
I fail to see on what
basis the above comment can be regarded as
obiter
.
The Constitutional Court specifically looked at the common law
summary contempt procedure, and after considering well-established
authority of the Appellate Division, as it then was, it unequivocally
confirmed that the procedure is constitutionally compliant,
and in
essence strikes a balance between a respondent’s procedural
safeguards and the need for a court’s authority
to be
vindicated.
[39]
Even
if I am wrong in my conclusion and the comment was
obiter
,
its persuasive value would bring me to the same conclusion reached
above. In
Turnbull-Jackson
v Hibiscus Coast Municipality and others (Ethekwini Municipality as
amicus curiae)
[11]
the
Constitutional Court stated the following in relation to
obiter
dicta
:
“
[56]
The doctrine of precedent decrees that only the ratio decidendi of a
judgment, and not obiter dicta, have binding effect. The
fact that
obiter dicta are not binding does not make it open to courts to free
themselves from the shackles of what they consider
to be unwelcome
authority by artificially characterising as obiter what is otherwise
binding precedent. Only that which is truly
obiter may not be
followed. But, depending on the source, even obiter dicta may be of
potent persuasive force and only departed
from after due and careful
consideration (relying on Durban City Council v Kempton Park (Pty)
Ltd
1956 (1) SA 54
(N) (Kempton Park) at 59D-F and Rood v Wallach
1904 TS 187
(Rood) at 195-6)”.
[40]
The judgment in
Matjhabeng
was that of a unanimous court and as such, even if the statement in
question was made
obiter,
it would be of potent persuasive value.
[41]
In the circumstances,
the second prong of the counter-application must fail as well.
Challenge
3 - Clauses 13.1 and 13.2 are unconstitutional and invalid
[42]
NUMSA’S
arguments in respect of this prong of its counter-application can be
summarised as follows –
42.1
Section
34
[12]
of the Constitution,
which deals with access to courts, includes the right to
be heard and the common law principle
of
audi
alteram partem
.
42.2
It is
fundamental to the rule of law that court orders should not be made
without affording all interested parties a reasonable
opportunity to
state their case.
42.3
In
the context of contempt of court, it is not open to the accused to
stay silent. A
prima
facie
case set up against an accused will become proof beyond reasonable
doubt if the accused fails to “
advance
evidence that establishes a reasonable doubt as to whether
non-compliance was wilful and mala fide”
.
[13]
42.4
The intended
effect of clause 13 is that a respondent is prevented from opposing
an application for contempt until a court has ordered
that the
applicant has made out a
prima
facie
case
and that the respondent must adduce evidence as to why a final order
of contempt should not be made.
42.5
There cannot
be a blanket exception given to applications for contempt.
Notice must be given unless the applicant makes out
a proper case for
proceeding
ex
parte
.
42.6
By their
nature,
ex
parte
applications limit the right to be heard of those who have an
interest in the application. The limitation of the section
34
right of access to courts, is not justifiable.
[43]
I have already dealt
with the Constitutional Court’s finding in
Matjhabeng
in which the court found the common law contempt procedure to be
constitutionally compliant and that it strikes a balance between
a
respondent’s procedural safeguards and the need for a court’s
authority to be vindicated. On the strength of
the
Matjhabeng
decision, the third prong of the counter-application must also fail.
[44]
This leaves only one
more issue for me to deal with. Under the third prong, NUMSA
also argues that in addition to the denial
of a constitutional right,
with an
ex
parte
contempt order hanging over the heads of NUMSA’s negotiators,
the power balance in their collective engagement with the employer
was shifted. According to NUMSA, the mere existence of the
contempt order, and its implications, is enough to affect the
power
play.
[45]
NUMSA’s
submissions in this regard can be summarised as follows-
45.1
This Court has
repeatedly stated that one must be mindful about the motivation for a
strike interdict because it might be used to
affect the power play.
45.2
In the United
Kingdom, Professor Lord Wedderburn has cautioned that:
“
Without
scrupulous care by the judiciary – and sometimes even with it –
the interlocutory labour injunction can become
a great engine of
oppression against workers and their unions.”
[14]
45.3
In
Metal
& Electrical Workers Union SA v National Panasonic Co (Parow
Factory
)
[15]
the
court expressed the importance of ensuring that the judiciary not be
drawn into collective bargaining disputes where its intervention
is
not warranted to ensure the institutional independence and authority
of the court is not undermined.
45.4
Interim
strike interdicts have the potential to create injustice, providing
employers with a powerful tool to undermine legitimate
collective
action by labour and to attack trade unions.
[16]
45.5
Van
Niekerk J
[17]
recognised the potential for the institutional authority of the
Labour Court to be undermined where employers bring interim strike
interdicts with the purpose of undermining collective action by
labour.
45.6
In Canada,
Suzanne Birks commented:
“
Labour
contempt, as it has developed in Canada, is potentially as effective
a brake on union activity as was the nineteenth-century
sanction of
criminal conspiracy … what is at issue is often not the
immediate offence, but rather the validity of the union's
entire
initiative in the dispute with the employer
”
[18]
“…
.
When
the restraining order is given the battle may shift from the
immediate dispute to a more intensive struggle over the right
to
picket and the extent of controls on union activity generally”
[19]
45.7
Civil contempt
applications in the context of collective labour disputes have the
same potential for injustice because they provide
employers with a
powerful tool to undermine the constitutional rights of trade unions
and workers to engage in collective bargaining,
to freedom of
association and to strike. Therefore, the cautionary principles
applicable to the granting of strike interdicts
apply with equal, if
not greater, force to contempt applications by employers pursuant to
a strike interdict.
45.8
In the context
of clause 13, the denial of a party’s right to be heard has
serious potential to prevent a court from being
able to evaluate
properly whether it should involve itself in the power play between
the parties and/or whether the contempt application
is “
an
engine of oppression against workers and their unions
”
that undermines legitimate collective action.
[46]
I have already
expressed the view that the rule
nisi
does not contain an interim order. On this basis alone it
cannot be argued that the power play was affected because an interim
contempt order was hanging over the heads of NUMSA’s
negotiators. In addition to this, all the authorities relied on
by NUMSA in support of their argument are in the context of
collective bargaining and strike action. It is difficult to
take issue with the views expressed in this context. However, I
do not see how this finds application to contempt applications
in the
context of collective labour disputes. Even though the interim
contempt order was granted on an
ex
parte
basis, it cannot be open to NUMSA to argue that this somehow tilted
the scales against them in the collective bargaining process.
The contempt order flows from allegations that the union and its
officials had not observed the terms of the interim strike
interdict.
As we have seen, this order called upon NUMSA and
its members not to engage in unlawful activity, including
intimidating,
threatening, harassing or harming any employees, visitors, services
providers or any other person present on the applicants’
premises, damaging property, blocking entrances and carrying
dangerous weapons. If NUMSA, its officials and members indeed
observed the terms of the interim strike interdict, as would be
expected of them, there can be no concern that there is any merit
in
the contempt allegations. It must also be expected that NUMSA,
its officials and members had no intention of engaging
in the
unlawful activities in question and as such they could not have had
any concern that they had to tread carefully in the
collective
engagement process for fear of strengthening the contempt allegations
against them.
[47]
The third prong of
the counter-application therefore also fails.
[48]
Given that the
counter-application fails, I now turn to the merits of the contempt
application.
The
Contempt Application
[49]
The
requirements for a finding of contempt of court were formulated as
follows by Cameron JA in
Fakie
NO
:
[20]
“
In
particular, the applicant must prove the requisites of contempt (the
order; service or notice; non-compliance; and wilfulness
and mala
fides) beyond reasonable doubt. … But, once the applicant has
proved the order, service or notice, and non-compliance,
the
respondent bears an evidential burden in relation to wilfulness and
mala fides: Should the respondent fail to advance evidence
that
establishes a reasonable doubt as to whether non-compliance was
wilful and mala fide, contempt will have been established
beyond
reasonable doubt.”
[50]
The
shifting of the evidentiary burden to the respondent to establish
that his non-compliance was not wilful and
mala
fide
once the first three requirements for contempt have been met (the
order, service or notice, and non-compliance) equates to there
being
an inference
[21]
of wilful and
mala
fide
non-compliance in such circumstances, which the respondent must rebut
through the leading of evidence.
[22]
[51]
When
seeking to hold a union liable for contempt of court, it is important
to distinguish the obligations imposed on the union from
those
imposed on its members. In
In2Food
[23]
,
the LAC stated that:
“
The
fact that a trade union can be liable for the acts of its members
does not assist in deciding whether the trade union, in its
own
right, has breached a court order. This distinction was also not
addressed in the judgment of the court a quo. The upshot is
that when
there is evidence to implicate the union vicariously in the unlawful
acts of its members, there may well be an action
available to the
respondent for redress, but
the
liability of the appellant for contempt of a court order is strictly
determined by reference to what the court ordered the trade
union,
itself, to do and the presentation of evidence that it did not do as
it was told
.”
(Own emphasis.)
[52]
What
this means is that a union cannot be held vicariously liable for
contempt of court by its members; it can only be liable for
contempt
if it itself – through its officials
[24]
– breached the court order.
[53]
Orders
to the effect that a union should “
take
all reasonable steps
”
to persuade its members not to act unlawfully, will not give rise to
a finding of contempt on the part of the union, because
they are too
vague and imprecise. In
AMCU
& others v KPMM Road & Earthworks (Pty) Ltd
[25]
the LAC held that
“
If
an employer wishes to obtain relief against a union in circumstances
similar to that of the present dispute, it behoves its legal
advisors
to draft a notice of motion which gives clear content to the
obligations which it wishes to impose upon the union
”.
[54]
In
line with this, it has become customary for an employer in a strike
violence interdict to seek orders requiring the union to
take
specific positive steps to bring the violence to an end. These
include publicly calling on the strikers to abide by the order
by,
for example, reading it out by loud-hailer in the language that is
commonly used for communication on the employer’s
premises.
[26]
As Lagrange J put it in
Swissport
SA (Pty) Ltd v Mphahlele & others
:
[27]
“…
To
meet this difficulty, strike interdict [and strike violence] orders
often contain very express instructions about what union
office-bearers or, at the very least, the union is required to do.
This usually takes the form of an order compelling the union
to
convey the order to members and sometimes identifies specific
officials who must do this. Further, the order may actually require
the union to actively encourage members to desist from strike action
by way of addressing members or issuing a notice on a union
letterhead. Such orders are often accompanied by time frames for
compliance.”
[55]
Orders
of this sort are commonly referred to as “
ensure
compliance orders
”,
i.e. orders compelling a union to ensure that the substantive order
is complied with by its members.
[28]
[56]
What the above illustrates is that it is
extremely difficult to hold a trade union in contempt of court for
breaches of a strike
interdict order by its members, beyond any
positive obligations placed on the union. Seen in this context,
it is not surprising
that in its written and oral arguments PCASA
only focussed on two alleged breaches – a breach of paragraphs
3.2 and 6 of
the interim strike interdict. In respect of the
numerous other allegations of breaches contained in its papers, PCASA
recorded
in its heads of argument that it has not abandoned these
alleged breaches, yet it made no written or oral submissions in
respect
thereof. At most it referred to an 11-page summary
contained in its replying affidavit in the contempt application,
which
it claims, establishes breaches of the interim strike
interdict.
[57]
I will deal with the alleged breaches of
paragraphs 3.2 and 6 first and then deal with the rest of the
breaches as summarised in
PCASA’s replying affidavit.
Breach
of paragraph 3.2
[58]
In
terms of paragraph 3.2 of the interim strike interdict NUMSA was
restrained “
from participating
in, calling for, supporting, encouraging or inciting unlawful
behaviour, violence, causing damage to property
and from
intimidating, threatening, harassing or harming
”
employees, visitors, service providers or any other person present on
the applicants’ premises.
[59]
On 5 November 2018, three days after the
interim strike interdict was granted, Jim addressed NUMSA members at
a meeting at NUMSA’s
head office in Johannesburg. Mabho
was with him. The reason for the meeting was that striking members
wanted to know how
NUMSA was going to deal with the problem of
members returning to work.
[60]
Jim addressed the members and was captured on a
cell phone video saying that “
We
need to stop these rats who go to work. We need to sit down and have
a strategy. Tomorrow at eleven we are switching our phones
off. We do
not want people taking pictures. Power, power, power”.
The
audience clapped and cheered in response to the message.
[61]
Bonga Nonkonyane (Nonkonyane), an employee of
Sondor Industries who was present at the meeting, received the video
from an unknown
source and shared it on his WhatsApp profile.
[62]
On 6 November NUMSA held a mass meeting to
discuss and deal with the issue of the rats.
[63]
On
7 November, a NUMSA member, Constance Morare (Morare - also later
referred to as Moo), sent a WhatsApp message stating that
“
Today all hell is breaking
loose, the rats and agents must be attacked/beaten; and with the
assistance of ‘chamdor’
and ‘bosmont’ the
gates must fall.”
This
WhatsApp message was widely distributed amongst NUMSA members.
That same day, an attack was launched on Sondor
Industries.
Nonkonyane was identified as one of the suspects involved in the
attack on his employer, although he denies any
involvement.
[64]
In his affidavit Jim
states that the gathering at the NUMSA Head Office took place on 5
November 2018. He explains that he was called
into an impromptu and
unscheduled meeting of NUMSA members in the plastics industry who had
been on strike for about four weeks.
He listened to their concerns,
which were to the effect that the striking workers did not see
sufficient support from NUMSA officials
in mobilising workers to
remain on strike, and as a result some strikers were returning to
work.
[65]
Having heard their
concerns, Jim acknowledged that the members’ problems were
serious, but said that he could not deal with
them then. He
proposed that the union hold a mass meeting of the strikers the next
day, where the problem could be addressed
and workers would be
motivated to remain on strike. His proposal was accepted and
the meeting was arranged for the following
day, 6 November 2018, at
11h00 in Elandsfontein.
[66]
The mass meeting took
place on 6 November 2018 and Jim addressed the strikers about
mobilising people to continue with the strike.
[67]
Jim’s
explanation in relation to switching off cell phones and not taking
pictures is that he “
saw
many people in the meeting with their phones in the air taking
pictures. If they are taking pictures, they are not listening
and focussing on the issue at hand. Therefore, I told them that when
we deal with this serious issue, we will switch off our cell
phones
and not be taking pictures. In other words, we would be taking the
matter seriously and engaging actively in discussions
to address the
problem.”
[68]
Jim denies that he
said or implied that when dealing with the issue of the workers
returning to work, the workers’ cell phones
should be switched
off and no pictures should be taken so that there was no proof of the
intimidation. He denies that he
suggested, explicitly or
implicitly, that strike-breakers should be attacked or beaten.
[69]
Mabho and a Mr
Mgcineni Tshambuluka (Tshambuluka), a NUMSA regional organiser,
confirm the contents of Jim’s affidavit relating
to the meeting
held at NUMSA’s Head Office. Tshambuluka also confirms
the contents of Jim’s affidavit relating
to the mass meeting
that took place on 6 November 2018.
[70]
Jim used the Xhosa
word “
amagundwane
”
in the meeting at NUMSA’s Head Office to refer to the
strike-breakers. He explains that the word means “
rats
”
and refers to workers who break the picket line and return to work.
He states that it is a common and widely used
term in the union
movement and that there are songs sung by workers about
“
amagundwane
”.
He points out that in many countries with a history of strike action,
strike-breakers have been referred to in derogatory
terms. For
example, in the United States of America, strike-breakers have for
centuries been referred to in similar ways,
such as “
blackleggers
”,
“
knobsticks
”,
“
rats
”,
“
finks
”
and “
ratfinks
”.
He states that the etymology of the more common “
scab
”
shows that it is similarly derogatory.
[71]
With reference to
Morare’s WhatsApp message, Jim states that it “
could
not have been the result of what I said at the meeting on 5 November
or the mass meeting on 6 November. Such a message is
contrary to the
policies and programmes of the union.”
[72]
PCASA argues that Jim’s innocent version
of the WhatsApp video must be rejected for the following reasons:
72.1
Jim’s statement at the head office
meeting that “
we need to stop
these rats who go to work
”,
speaks for itself and is incapable of contextual dilution.
72.2
Jim’s explanation for why he
wanted a cell phone blackout during the mass meeting – namely
to ensure that members paid
attention – is so far-fetched and
clearly untenable that it stands to be rejected on the papers.
72.3
In the absence of a tenable explanation
for the required blackout, the inescapable inference is that it was
aimed at ensuring that
there was no record of an unlawful “strategy”
to deal with the rats.
72.4
It is thus unsurprising that Jim does
everything but take the court into his confidence about the terms of
the “strategy”
that he put forward at the mass meeting
“to stop these rats who go to work”.
72.5
Where else could Morare have obtained
the information that she conveyed in her widely distributed WhatsApp
message the morning after
the mass meeting, other than at the head
office meeting or mass meeting?
72.6
What Morare advised should happen on 7
November 2018 (namely that “
[t]oday
all hell is breaking loose, the rats and agents must be
attacked/beaten”
) is precisely
what happened at Sondor Industries on that day. Amongst other
things, four replacement labourers were attacked/beaten
– one
of whom landed up in ICU. To accept Jim’s version would
involve writing this off as an untimely coincidence.
72.7
The same applies to the (alleged)
involvement of Nonkonyane in the attack on his employer. He
attended both the head office
meeting and mass meeting, and saw fit
to publish the video clip of Jim on his WhatsApp profile, which
depicts a cause that he no
doubt identified with.
[73]
Given the above, PCASA argues that NUMSA
(through its officials, principally Jim) failed to comply with
paragraph 3.2 of the
interim strike interdict
by
“
calling for, supporting,
encouraging or inciting unlawful behaviour
”.
As such, NUMSA can be taken to have been complicit in the unlawful
actions of its members and supporters referred
to in the papers
before court.
[74]
NUMSA argues that
there is insufficient evidence that it instigated or was involved in
unlawful conduct, that many of the allegations
are based on
inadmissible evidence, that many of the perpetrators have not been
identified or proved to be NUMSA members, and that
where NUMSA
members have been identified as being present, there is insufficient
evidence to establish that such members perpetrated
acts of violence.
[75]
In the one instance
where a member, Mr Edward Mathebula (Mathebula), was identified as a
perpetrator, Mabho “
referred
the matter to the union’s National Office Bearers for
investigation with a view to disciplinary action being taken
against
him in terms of NUMSA’s constitution.
”
[76]
NUMSA
stresses that PCASA bears the
onus
of proving, beyond reasonable doubt, not only that NUMSA failed to
comply with the interim strike interdict, but also that such
non-compliance was both wilful and
mala
fide
,
and material.
[29]
In
relation to the requirement of
mala
fides
,
the Court must be satisfied that there is “
a
complete absence of any kind of
bona
fide
justification
for the refusal to comply (even if the justification relied on is
ultimately found to be objectively unreasonable
or
unsustainable)
”.
[30]
[77]
It
also argues that the principal purpose of contempt of court
proceedings, when a court order has been disobeyed, is twofold: (a)
the imposition of a penalty to vindicate the Court’s honour
consequent upon the disregard of its order and (b) to compel
performance of the order.
[31]
Since
the strike has ended, part (b) is no longer applicable.
[78]
NUMSA further argues
that:
78.1
The video of
Jim’s address at the head office on 5 November 2018 is about 11
seconds long. Without a full understanding of
what transpired, the
snippet may be easily misinterpreted.
78.2
Jim is a very
popular leader. He is captured on cell phones whenever he
speaks in public. He wanted the workers to concentrate
on what
he would be saying at the mass meeting and not to be distracted by
taking videos with their cell phones. There is
nothing
far-fetched and untenable about this explanation.
78.3
It cannot be
concluded beyond reasonable doubt that there is a complete absence of
any kind of
bona
fide
justification for his address or that Jim wilfully intended to breach
the interim strike interdict order.
78.4
PCASA argues
that the context within which Jim’s words– “
we
need to stop these rats who go to work”
– are said, must be ignored because they are “
incapable
of contextual dilution
”.
The context within which particular words are said is always critical
to a proper understanding of their meaning.
PCASA cannot wish
away the context in order to propagate the meaning it prefers.
Ironically, PCASA invokes the context after
Jim’s address –
Moo’s message and the attack at Sondor – to support its
assertion that Jim must have meant
to incite violence and
intimidation.
78.5
Jim has taken
this Court into his confidence by explaining the nature of his
interactions on that day, the problem and complaints
from workers on
that day, his proposed solution to deal with the complaints, and the
purpose of the mass meeting – to mobilise
continued support for
the strike, which by then had endured for a substantial amount of
time.
78.6
None of the
allegations regarding Moo and the WhatsApp message are confirmed by
anyone with personal knowledge. Moo’s
identity as
Constance Morare is not confirmed by anyone with personal knowledge,
even though the identity of Moo’s employer
is known to PCASA.
78.7
PCASA’s
averment that the WhatsApp message was widely distributed is not
confirmed by anyone with personal knowledge.
No person confirms
by way of an affidavit how and when this message came to their
attention. PCASA provides no explanation
for not tendering
evidence by persons with personal knowledge.
78.8
The evidence
about Moo and the WhatsApp message constitutes inadmissible hearsay
evidence. Most importantly, the authenticity
of the WhatsApp
message has not been proved.
78.9
The high water
mark of PCASA’s submission is a rhetorical and speculative
question: “
Where
else could Ms Morare have obtained the information that she conveyed
in her widely-distributed WhatsApp message the morning
after the mass
meeting, other than at the head office meeting or mass meeting?
”
78.10
Attacks on
workers who were not participating in the strike started well before
5 November 2018. Moo’s statement (if
it is authentic)
could have been sent before any of these incidents as well. There is
no direct evidence to link Moo’s statement
to Jim’s
address to the gathering on 5 November 2018, or his address to the
mass meeting the following day, or the attack
at Sondor, Benoni on 7
November 2018. There is also no direct evidence linking Jim’s
addresses to the attack at Sondor.
78.11
PCASA’s
evidence amounts to no more than a contextual interpretation of Jim’s
address and the coincidence of events
for which there is no evidence
that NUMSA was involved, a snippet of a meeting without context, and
a purported WhatsApp message
from a person initially alleged to be a
shop steward but for which no direct evidence and/or authentication
is provided.
78.12
PCASA has not
proved, beyond reasonable doubt, that Jim’s statements to the
meeting on 5 November 2018 constituted a breach
of paragraph 3.2 of
the interim strike interdict. In any event, Jim’s
explanation for his statements to the meeting
on 5 November 2018
constitutes clear evidence that establishes, at the very least, a
reasonable doubt as to whether he wilfully
and
mala
fide
intended to breach the interim strike interdict order.
[79]
In my view, PCASA has
failed to establish beyond a reasonable doubt that NUMSA is in breach
of paragraph 3.2 of the interim strike
interdict. There is
insufficient evidence that NUMSA called for, supported, encouraged or
instigated, or was involved in,
the unlawful conduct complained of.
[80]
PCASA’s entire
case in respect of the breach of paragraph 3.2 rests on the 11 second
long video of Jim’s address on
5 November 2018. While Jim
cannot, and does not, deny that he uttered the words “
we
need to stop these rats who go to work”
these words by themselves are not sufficient to establish a breach of
paragraph 3.2 on the part of NUMSA, at least not beyond a
reasonable
doubt, which is the test that must be applied.
[81]
While the choice of
words by Jim is unfortunate to say the least, particularly given that
he is a popular leader and that he was
addressing workers in the
context where they were disillusioned with the level of support from
NUMSA’s officials in mobilising
workers to remain on strike,
resulting in some strikers returning to work, there is simply not
enough evidence to establish that
this in itself amounts to a breach
of paragraph 3.2.
[82]
There is no evidence
that shows a link between Jim's reference to stopping rats and the
subsequent violence, damage to property,
intimidation and harassment
which occurred at the premises of certain of the applicants’
members.
[83]
While the attack at
Sondor Industries occurred on the same day as the WhatsApp message,
to the effect that the rats would be attacked/beaten
that day, there
is no evidence beyond a reasonable doubt that the message and the
attack can be linked to Jim’s statement.
In spite of
this, NUMSA cast doubt on the date of the WhatsApp message and argues
that it could have been sent prior to 7 November
2018.
[84]
PCASA argues that
NUMSA has not shared with the court the details of the strategy which
was discussed at the mass meeting in Elandsfontein.
However,
Jim, in his affidavit, states that he addressed the strikers about
mobilising people to continue with the strike.
While it is
correct that the details of how this was to be done has not been
disclosed, this in itself is not sufficient to establish
a breach of
paragraph 3.2.
[85]
With regard to the
switching off of cell phones, PCASA itself argues that the
inescapable
inference
is that it was aimed at ensuring that there was no record of an
unlawful strategy to deal with the rats. An inference is
not
sufficient to establish beyond reasonable doubt that NUMSA is in
contempt of court.
[86]
In the circumstances,
my view is that PCASA has not proved beyond a reasonable doubt that
Jim’s statements on 5 November 2018
constituted a breach of
paragraph 3.2 of the interim strike interdict. Regardless,
Jim’s explanation establishes, at
the very least, a reasonable
doubt as to whether he wilfully and
mala
fide
intended to breach the interim strike interdict.
Breach
of paragraph 6
[87]
Paragraph 6 of the
interim strike interdict ordered that:
“
The
first respondent is ordered to publically (sic) call upon its
members, to abide by the provisions of this order to the striking
employees and participants in the protest action who are present at
such time at the second to seventh applicants’ members’
premises, in such languages which are commonly used for communication
by them within 4 hours of receipt of this order.”
[88]
PCASA’s argument in respect of the breach
of paragraph 6 can be summarised as follows:
88.1
Paragraph 6 ordered NUMSA to, “
within
four hours of receipt of this order
”,
“
publically (sic) call upon its
members [present at the second to seventh applicants’ premises]
to abide by the provisions
of this order
”
– this in languages commonly used for communication by them.
88.2
Paragraph 6 of the interim strike
interdict is a classic “
ensure
compliance order”
, in that it
placed a positive obligation on NUMSA to call upon its members to
“
abide by the provisions of
this order”
, which call was to
be made publicly by NUMSA at each of the premises of the second to
seventh applicants, within four hours of
NUMSA being in receipt of
the order.
88.3
The interim strike interdict was issued
on Friday, 19 October 2018. The terms were agreed by the
parties at court, with Mabho
in attendance.
88.4
In a press release made thereafter, Jim
made no mention of the interim strike interdict.
88.5
The interim strike interdict was also
not posted or referred to on NUMSA’s website.
88.6
On Monday, 22 October 2018, the PCASA’s
attorneys addressed a letter to NUMSA’s attorneys complaining
about the breach
of the interim strike interdict, including
non-compliance with paragraph 6 thereof.
88.7
Also on 22 October 2018, Mabho issued an
internal communiqué to various NUMSA officials. Although
the communiqué
makes reference to the interdict application,
the terms of the interim strike interdict are not set out therein,
nor was the order
attached. With apparent reference to the
interim strike interdict, Mabho stated:
“
The
courts seem willing to accept orders that instruct the union to
“publicly call on its members to abide by the court order”
and “do all that is reasonably possible to ensure compliance
with the order.” The employers love this kind of order
because
they know that it has the potential of dividing the membership from
the union and therefore weakening the union and the
strike. The
employers don’t understand or even care that we are a
democratic organisation and worker controlled.
So, when we are
ordered to do this, we must try to do it in a way that doesn’t
undermine the union in the eyes of its members.”
(PCASA’s emphasis.)
88.8
On 23 October 2018, NUMSA distributed
(by email) the interim strike interdict amongst its officials. This
was the first time that
it did so. On 31 October 2018, Jim made
another press release. With apparent reference to the interdict
application,
he stated:
“
Employers
have been trying various tactics to try and weaken the strike and
daily as a union we have been defending our members’
rights,
and winning in the courts in opposing their malicious and
manipulative interdicts brought by them ….”
(PCASA’s emphasis.)
88.9
On 1 November 2018, the applicants
launched the contempt application on an ex parte basis, which led to
the rule nisi being issued
the following day.
[89]
PCASA further submits that the following
aspects of the various affidavits warrant highlighting:
89.1
The applicants’ founding affidavit
in the contempt application explicitly alleges non-compliance with
paragraph 6 of the
interim strike interdict
.
89.2
The applicants’ supplementary
affidavit in the contempt application does likewise.
89.3
In its answering affidavit in the
contempt application, NUMSA places emphasis on the communiqué
and the other interactions
between Mabho and NUMSA officials –
as opposed to members – in relation to the interim strike
interdict. In paragraph
96, Mabho states: “
As
I will deal with more fully below, the NUMSA officials did in fact
communicate to striking NUMSA members the terms of the strike
interdict order”.
The balance
of the text of the answering affidavit provides no proof of this.
89.4
The applicants’ replying affidavit
in the contempt application highlights that NUMSA has not established
compliance with paragraph
6 of the interim strike interdict.
89.5
In an extraordinary move, after the
applicants had delivered their replying affidavits in both the
contempt and interdict applications,
NUMSA delivered a supplementary
affidavit in response thereto. In responding to the applicants’
contentions about non-compliance
with paragraph 6 of the interim
strike interdict, Mabho places reliance (solely) on three supporting
/ confirmatory affidavits
to NUMSA’s answering affidavit in the
contempt application, namely those of: (i) Ms Maria Bogatha
(Bogatha); (ii) Mr Stompie
Phanuel Mosiane (Mosiane); and (iii) Mr
Harryson Maharala (Maharala).
89.6
These three affidavits do not establish
compliance with paragraph 6 of the interim strike interdict.
89.6.1
Bogatha (a NUMSA local organiser) says
that, on 19 October 2018, she went to the Roodekop industrial area
where she came across
a group of picketers who “
were
from various companies in the area
”,
near the corner of Setchell and Bevan Roads. She then
“
addressed [them] and informed
them about the court order and its contents
”.
Mosiane simply confirms this.
89.6.2
Bogatha does not even contend that she
visited the premises of each of the second to sixth applicants at the
Roodekop industrial
park. She also does not contend that
she called upon the picketers “
to
abide by the provisions of this order
”,
as paragraph 6 thereof instructs. NUMSA was not required to
simply serve the order as Bogatha did; it was instructed
to ensure
compliance therewith by calling upon its members “
to
abide by the provisions of [the] order
”,
i.e. to encourage / persuade them to do so. It is apparent from
Mabho’s communiqué that NUMSA was well
aware of this.
89.6.3
Maharala (a shop steward at Bowler
Plastics) says that upon being provided with a copy of the
interim
strike interdict
on 19 October 2018 by the
company, he telephonically contacted a NUMSA local organiser for
advice because of some confusion around
the perimeter order. On
the advice of the organiser, Maharala (together with other shop
stewards) then communicated the order
to the strikers and told them
that they should comply with it (and that the organiser had said so).
89.6.4
Paragraph 6 of the
interim strike
interdict
does not contemplate NUMSA sending a
hearsay message to its members. Rather it compelled NUMSA (via its
officials) to itself attend
upon the premises of Bowler Plastics to
“
publicly
”
call upon its members to abide by the terms of the
interim
strike interdict
, which it failed to do.
[90]
In conclusion, PCASA argues that, on the
papers, non-compliance with paragraph 6 of the
interim strike
interdict
on the part of NUMSA has been
established.
[91]
NUMSA’s argument in respect of paragraph
6 can be summarised as follows:
91.1
In the
founding affidavit of the interdict application, PCASA states that
“
[the]
second to sixth applicants … have their business premises and
plastics works at an industrial park in Wadeville, Roodekop
between
Berry and Setchell Roads.”
91.2
In the
affidavit of Bogatha, filed with Mabho’s answering affidavit,
she describes how she left from the Labour Court immediately
after
the
interim strike interdict
order
was made “
to
ensure that the union complied with paragraph 6 of the Court’s
order of 19 October 2018.”
She states that: “
When
I got to the Roodekop industrial area I found the picketers next to
the robots near the corner of Setchell and Bevan Roads.”
She then
describes how she addressed the picketers.
91.3
Mosiane, a
NUMSA shop steward at DPI Plastics, the second applicant, confirms
what Bogatha states in her affidavit.
He further
confirms that Bogatha visited the picketers at Roodekop regularly,
almost on a daily basis, and in her interactions she
“
always
emphasised the need to have peaceful protest action or pickets”
.
91.4
The applicant
complains that Bogatha did not visit the premises of each of the
second to sixth applicants. Bogatha states
that she addressed
the picketers in the Roodekop industrial area where she found them.
She informed them “
about
the court order and its contents, including the provision relating to
the 150m and the provision relating to the role of the
SAPS.”
She also
“
addressed
them in a mix of English, Zulu and Sotho as is usually the case.
”
91.5
PCASA also
complains that Bogatha, in her affidavit, does not say that she
“
called
upon the picketers to abide”
,
but rather that she “
informed
them about the court order and its contents”
.
This pedantic criticism of Bogatha’s evidence seeks to mask the
good work that she performed, especially in the context
where (as
Mosiane confirms) she visited the picketers regularly, almost on a
daily basis, and in her interactions she “
always
emphasised the need to have peaceful protest action or pickets
”.
91.6
NUMSA complied
with the provisions of paragraph 6 in respect of Bowler Plastics.
Maharala
describes how paragraph 6 was complied with. The interim strike
interdict order was given to him by the General Manager
of Bowler
Plastics. The 150 meter perimeter provision was confusing
because of their prior agreement with management to picket
30 meters
from the gate of the company. He subsequently telephoned the
union and was advised that they had to comply with
the order and that
he should advise the workers present at the time of the order.
He then informed the workers present (a
sizable number) about the
order and that they should comply with it. As a result of his
communications with the workers,
they moved a substantial distance
away from Bowler Plastics and gathered near the gate of another
company.
91.7
In its heads
of argument, PCASA contends that there was no compliance because
paragraph 6 required NUMSA’s “officials”
to make
the public call to its members at Bowler Plastics and not to send a
“hearsay message” to its members.
91.8
Paragraph 6
does not require NUMSA officials to make the call at Bowler
Plastics. At Bowler Plastics, the order was handed
by the
General Manager to Maharala who was the chairperson of the shop
stewards committee and an office bearer who then in turn
communicated
the terms of the order to the members present. He also called
upon the members to abide by the order, which
resulted in their
compliance.
91.9
There was no
hearsay involved. Maharala had a copy of the order with him
when he called upon the members to abide.
91.10
There is no
evidence of non-compliance with paragraph 6 of the order, certainly
not material non-compliance. There is also
no basis to conclude
beyond a reasonable doubt that NUMSA wilfully and
mala
fide
intended to breach paragraph 6 of the interim strike interdict.
[92]
The obligation on
NUMSA in terms of paragraph 6 of the interim strike order was to,
within 4 hours of receipt of the order, publicly
call upon the
striking employees and participants in the protest action, who were
present at the second to seventh applicants’
premises at such
time, to abide by the provisions of the court order. This had
to be done in such languages which are commonly
used for
communication by them.
[93]
Even if Bogatha did
not visit all of the second to seventh applicants’ premises,
she addressed the picketers in the Roodekop
industrial area where she
found them and informed them about the court order and its contents
.
She did
this in a mix of English, Zulu and Sotho
.
As far as Maharala is concerned, he communicated the terms of the
order to the members present. He also called upon
the members
to abide by the order.
[94]
In my view, this is
substantial compliance with the court order and may even have been
more effective than going to the second to
seventh applicants’
premises (particularly if no one was gathered there). Based on
the wording of paragraph 6, if only
a few striking employees and
other participants in the protest action were
present
at the premises in question, NUMSA would have complied with the order
if it made the call to these few employees. If none
of the
identified people were present at any of the premises then
conceivably there would be no obligation on NUMSA to make the
public
call.
[95]
In addition, based on
the wording of paragraph 6, there was nothing that obliged NUMSA to
refer to the terms of the order in media
statements and to put it on
its website.
[96]
In the circumstances,
I agree that there is no evidence of non-compliance with paragraph 6
of the order. Even if there was
evidence of non-compliance this
does not assist the applicants. This is because such
non-compliance would not be material
and more importantly there no
basis on which I can conclude beyond a reasonable doubt that NUMSA
wilfully and
mala
fide
intended to breach paragraph 6 of the interim strike interdict.
The
other breaches
[97]
As stated above, even
though PCASA has not submitted any written or oral arguments in
support of the rest of its allegations of
breach of the interim
strike interdict, it has not abandoned these allegations. This
has left me with the unenviable task
of working through a multitude
of affidavits to try and establish if there is any merit in the rest
of the allegations. I
deal with these below.
Breach
of 3.1 -
DPI
Plastics
[98]
According to PCASA,
on 6 November 2018 a group of NUMSA protesters carrying weapons
obstructed a public road and tossed rocks at
passing delivery
trucks. A screenshot of a video depicting a group of people in
the middle of a road and a truck nearby the
group has been provided
to support this allegation. PCASA argues that it is evident
that NUMSA breached the 150 meter perimeter
and the requirement to
take reasonable steps to get its members to refrain from unlawful
conduct. Three NUMSA members were
identified, including
Mosiane, a shop steward at DPI. As a NUMSA official he was
representing it and “
his
conduct illustrates how NUMSA discredits the order by wilful and mala
fide participation in various forms of illegalities”.
[99]
PCASA also refers to
an “affidavit” by Gerhard Troskie, an employee of PRSS,
who states that he was mandated “
to
secure DPI Plastics Factories and assets during a NUMSA strike”
.
According to Troskie:
99.1
He contacted
the Public Order Policing Unit (POP) to request assistance at the
facility as there had been a breach of the
interim
strike interdict
as the 150
meter perimeter was breached, there was blocking of the road and
damage to the property of DPI.
On
arrival of the POP they were informed of the situation, but did not
react to the crowd and eventually slowly drove behind the
crowd down
the road.
99.2
Further backup
was called, but assistance was not received.
99.3
A truck escort
was arranged to transport three of DPI’s clients off the
premises. When attempting to exit the premises the
crowd blocked the
exit and three trucks were stoned. On the third truck being
stoned, Troskie and his crew, who were following
the escort in a
bakkie, fired three warning shots into the air with a paintball
rifle. After this, the crowd’s attention
was diverted to
the bakkie and they threw bottles, branches and stones at the
bakkie. They, in turn, fired paintball shots
into the crowd in
the hope that the throwing of objects would stop. Eventually
the POP climbed out of their vehicle gesturing
to the crowd to calm
down, which allowed them the opportunity to flee the scene.
99.4
According to
Troskie three staff members were positively identified in the crowd
as well as several NUMSA members.
[100]
NUMSA denies the
above and refers to the affidavits of Bogatha and Mosiane.
According to Bogatha, DPI has two facilities in
Setchell Road of
which one is not operational and is closed. The operational
facility is in a
cul
de sac
.
On 6 November 2018 workers gathered at the picketing site outside
Mpact (another plastics employer). According to
Mosiane he had
been discussing the situation with a number of non-strikers and shop
stewards from a plastics facility a short distance
from the picketing
area. They noticed that the workers had moved to Setchell Road
(the
cul de
sac
).
The shop stewards followed them and found that some workers had
congregated in front of DPI and the crowd was still moving
further up
the road. They encouraged the crowd to move away from DPI, in
compliance with the 150 meter perimeter order.
Police were also
present and moving the crowd up the road. When the crowd
reached the non-operational DPI site, delivery
trucks started passing
through with an armoured vehicle in front. Mosiane was standing
to the side and did not see any objects
or stones thrown. Suddenly
shots were fired. Two workers were shot at close range by a
private security company. One
was shot in the face and the
other in the back. Following the firing of the shots many of
the marchers started running.
It was then that Mosiane saw
stones and other objects being thrown.
[101]
In its replying
affidavit, PCASA makes reference to NUMSA’s reliance on
Bogatha’s affidavit, which indicates that strikers
were in
Setchell Road. PCASA states that by virtue of this location it
necessarily means that Bogatha conceded to having
breached the 150
meter perimeter order. Bogatha’s affidavit puts NUMSA
workers at the scene shown in the video where
trucks were stoned.
Her affidavit states that Mosiane and others noticed strikers going
down Setchell Road and when they
caught up with them they were
outside DPI Plastics factory and once strikers reached DPI’s
non-operational site (close to
Ubuntu Plastics) trucks started to
move through. PCASA further argues that Mosiane’s
evidence is contradictory since
he first states he did not initially
see objects being thrown and later concedes to seeing things being
thrown – this was
done within the 150 meter perimeter in
defiance of the order.
[102]
In the replying
papers PCASA further submits that Johan Pieterse, the Chief Executive
Officer of PCASA, who deposed to the affidavits
on its behalf,
conducted site visits to DPI and had daily telephonic discussions,
relating to issues being experienced, with the
Managing Director of
DPI, Nick De Waal (De Waal). According to De Waal and Sandy
Visser, the Group HR Executive of DPI’s
Holding company, Dawn
Ltd, NUMSA members were seen blocking entrances.
PSA
Plastics
[103]
PCASA provided
photographs which depicted the destruction of vehicles and property
and a non-striking worker who was injured.
Among these images
is one depicting a group of people in red t-shirts at a gate and
images of the gate lying on the ground.
According to PCASA, the
damage amounted to hundreds of thousands of Rands.
[104]
In its supplementary
affidavit, PCASA states that Mariette Burger, the HR Manager,
obtained handwritten affidavits from NUMSA members
who stated that
they were never informed about the interim strike interdict order.
Photographs are referred to depicting
a few employees in red t-shirts
in a facility and some gathered at a gate.
[105]
NUMSA argues that the
images provided do not reflect that its members were involved in the
alleged damage to property. NUMSA
relies on the affidavit of
Manoko Margaret Hogana (Hogana), a local organiser, and the
confirmatory affidavit of Lesley Mooba Sebola
(Sebola), the
chairperson of the shop stewards committee.
[106]
According to Hogana:
106.1
On 24 October
2018 Mabho contacted her to visit the premises at PSA. On
arrival at midday, there were no NUMSA members present.
Sebola
told her that there had been eighteen NUMSA members sitting under a
tree approximately 300 meters away from the facility.
They saw
a large group of people in red t-shirts approaching and ran away.
106.2
The injured
worker in the photograph is Sebola’s brother who is a NUMSA
member and who did not partake in the strike.
Sebola was unable
to identify anyone else in the photographs.
[107]
In reply, PCASA
refers to the affidavit of Sebola wherein he admits that Bushy
Maimela, Moses Mabuza, Ndiwahla Mundlozi and Mpho
Mamapha were
identified as perpetrators in the attack on Edward Mokghala, a
non-striker, at PSA Plastics. Criminal cases
have been opened
against Maimela, Mabuza and Mamapha (all employed at PSA Plastics,
Clayville).
AMPA
Plastics
[108]
PCASA refers to an
incident that took place at AMPA plastics on 9 November 2018.
They provide photographs of the attack.
[109]
According to PCASA,
the
modus
operandi
of the attack on this facility is similar to other attacks, which
include breaking through security gates, attacking and assaulting
non-striking employees, throwing stones at the premises and windows,
breaking through doors and shutters to gain access to the
facility,
throwing petrol bombs and torching trucks. The attacks
continued without the intervention of NUMSA.
[110]
NUMSA states that
they have no knowledge of the attacks on the facility and allege that
their members at AMPA were exempted from
participation in the strike
because of an ongoing dispute between itself and the company
regarding a lack of written employment
contracts.
[111]
In reply, PCASA
refers to Mabho’s affidavit where he denies any evidence
linking NUMSA or its members. PCASA say this
amounts to a bare
denial and is
mala
fide
.
It also refers to the criminal case number and the employment and
identity details of an employee at ALPLA Packaging SA,
Zakhele
Mbongo, who was identified in a group of ALPLA employees on 25
October 2018 and on 9 November at AMPA. He was witnessed
assaulting the General Manager of AMPA, Brett Goldberg.
Bowler
Plastics
[112]
According to PCASA,
protestors, mostly dressed in NUMSA t-shirts, which were inverted so
as not to be recognised, stormed and broke
open the front security
gate and threw stones in the direction of the buildings and security
cameras. A guard house was set
alight and a CCTV camera was
destroyed at the guard house. In support of these submissions
photographs and confirmatory affidavits
of two managers, Brent
Carelse (Carelse) and Marlow Smith (Smith) were provided. The
photographs depict a group of people
in red t-shirts at a gate on 25
October 2018 at midday. Subsequent photographs depict the gate open
and destruction to vehicles
and property.
[113]
Carelse confirms
specific instances of destruction by protestors. He does not
however identify the protesters as NUMSA members
or specifically
identify the members as having worked for Bowler Plastics.
[114]
Marlow alleges that
he saw a group of around eight people approaching the reception area
and witnessed the destruction caused by
the stone throwing. He
too does not identify the protesters as NUMSA members or specifically
identify the members as having
worked for Bowler Plastics.
[115]
NUMSA contends that
it cannot identify any persons in the photographs as its members and
suggest that the people in red t-shirts
could be members of another
trade union or a political party (with similar red attire).
NUMSA relies on the affidavit of
Maharala and the confirmatory
affidavits of Letabo Selowe (Selowe) and Marcia Silaule (Silaule).
Maharala states
that he has no knowledge of the incident nor does Selowe and
Silaule. On the day in question they were all
at Elandsfontein
Station. He further denies that the attack was by NUMSA members
as he cannot identify anyone in the photographs.
[116]
In its replying
papers PCASA avers that Mathebula, an employee of ALPLA Packaging and
a NUMSA member was identified as having participated
in the violent
protest at Bowler. He was witnessed as having broken down the
front security gate with other protesters in
red t-shirts. He was
also witnessed throwing stones at trucks and the premises.
Photographs and the identity and employment
details of Mathebula were
referred to. Reference was also made to the affidavit of the
Operations Manager of Alpla Packaging,
Johannes Doman, who confirms
that he personally identified the individuals in the photographs and
provided the information to PCASA
and SAPS.
Sondor
(Sebenza)
[117]
PCASA refers to an
incident in which two non-striking employees were attacked.
This incident was not mentioned in the founding
or supplementary
papers and was put up in PCASA’s replying papers.
Reference is made to a criminal case that was opened
and the
identities of ten NUMSA members suspected of the attack.
[118]
Hogana states in her affidavit that there is no
direct evidence establishing that the persons identified as suspects
were involved
in the assault. From her affidavit it also appears
that:
118.1
The two ladies who were allegedly
assaulted are not identified. NUMSA members have identified one
of them from the pictures
provided.
118.2
PCASA’s attorneys have admitted
that video footage relating to the incident cannot be located.
118.3
One of the ten people identified, Edward
Khumalo, is not a NUMSA member.
118.4
Several of the persons who are suspects
have provided affidavits denying that they were involved.
[119]
In my view, there is no evidence to show that
NUMSA was involved in, or instigated, the breaches referred to
above. Even if
PCASA has been able to identify individual NUMSA
members who breached the interim strike interdict, this is not
sufficient in contempt
proceedings to hold NUMSA liable for these
breaches. Many of the perpetrators have in any event not been
identified or proved
to be NUMSA members, and where NUMSA members
have been identified as being present, there is insufficient evidence
to establish
beyond a reasonable doubt that such members perpetrated
acts of violence.
Breach
of paragraph 4
[120]
In terms of paragraph 4 of the interim strike
interdict, NUMSA and its officials were required to take all
reasonable steps to encourage
its members, supporters and followers
not to engage in any unlawful conduct.
[121]
PCASA submits that NUMSA has not complied with
paragraph 4 for the following reasons:
121.1
Although Mabho purports to
illustrate how NUMSA communicated the existence of the interim strike
interdict to its officials
he has not made any allegations to
demonstrate that the nature and exigency of the order was explained
to its members and protestors.
121.2
Mabho also fails to give evidence of
what NUMSA and its officials have in fact done to discourage members
from engaging in unlawful
conduct. Although he may have
instructed officials to ask members not to engage in unlawful
conduct, he fails to illustrate
what if anything was communicated to
the members, supporters and followers.
[122]
There are several affidavits filed on
behalf of NUMSA which claim compliance with the interim strike
interdict. In this regard:
122.1
According to Mabho,
on Monday 22 October 2018 (the interdict was issued on Friday 19
October) he sent out an internal communique
about the strike in the
plastics sector and the interdicts of MPACT and PCASA. The relevant
portion of the communique reads as
follows:
“
The
courts seem willing to accept orders that instruct the union to
‘publically call on it members to abide by the court”
and
“do all that is reasonably possible to ensure compliance with
the order”. The employees love this kind of order
because they
know that it has the potential of dividing the membership from the
union and therefore weakening the union and the
strike. The
employers don’t understand or even care that we are a
democratic organisation and worker controlled. So,
when we are
ordered to do this, we must try to do it in a way that doesn’t
undermine the union in the eyes of its members”….
“The
next trick may involve contempt of court proceedings. We must,
therefore, be vigilant. If we are ordered
by the courts to do
something, then we must do it, and be seen to be doing it. We
must proof we have done it.
If you don’t know how
to do it, then you can ask for help”. We must protect the
union and its members…
To protect the union and its members,
we should always advise our members, and be seen to be advising them,
to act lawfully.
Let us be militant, but let us also be
disciplined. “We urge you to ensure that you
communicate this message
to members”.
122.2
Mabho further states that NUMSA
officials communicated the interim strike interdict by email to
national office bearers including
the President and Vice presidents,
the Treasurer, the General Secretary and Deputy General Secretary.
122.3
On the same day picketing rules were
distributed which reiterated, among other things, that the purpose of
the picket, which was
to be facilitated by marshals, was to be
carried out in a peaceful demonstration, lawfully and without
weapons. Members were
to refrain from violent action and damage
to property.
122.4
In response to an email received from
PCASA on 22 October 2018, NUMSA’s attorney of record emailed
PCASA’s attorney
of record a letter in which it stated that it
informed PCASA that it had distributed the strike interdict order
widely via email.
122.5
According to Mabho, it was however later
discovered that he had in fact widely distributed MPACT’s
strike interdict order
and not PCASA’s strike interdict order.
He further submits that “
this
was a pure oversight on my part”.
Further, that at the time of the oversight, he was inundated with
internal queries, negotiations and allegations coming from PCASA.
Mabho says that in any event, the order was widely distributed on 23
October 2018 by Pieterse and himself.
122.6
In clarification of the position, and in
response to confusion by certain members of NUMSA as to whether the
strike interdict was
applicable to them, Mabho sent out an email
stating that “
It has come to
our attention that some comrades think that the Court order of 19
October 2018 only applies to the companies referred
to in the heading
of the court order. Please note that it applies to all PCASA members,
I attach a copy of the court order.”
122.7
Mabho also states that he had meetings
with regional organisers and other officials in which he emphasised
the need to ensure compliance
with the court order and the need to
ensure peaceful and lawful strike activity. He further states
that in preparation for
a negotiations meeting on 27 and 28 October
2018 he spoke to officials at length about these matters. After
a committee meeting
of the MEIBC on 6 November 2018 he met with
NUMSA’s representatives at the MEIBC meeting and discussed the
matter with them
too. Maharala confirms this in his affidavit.
Mabho states that he did the same at numerous internal NUMSA
meetings.
122.8
There was further email communication
between PCASA and NUMSA’s attorneys on 23 and 24 October 2018
regarding non-compliance
with the interim strike interdict wherein
NUMSA denied that it had not made any effort to avert alleged
unlawful activity.
122.9
In an email on 25 October 2018 between
Mabho and Vuyo Lufele (Lufele), a NUMSA official, regarding MPACT
Cape Town, Mabho urged
Lufele to “
ask
our members to always refrain from any unlawful acts.”
Copied into this email were a number of other NUMSA officials,
employees and managers.
122.10
Thsepho Mokhele, a regional organiser at
NUMSA in the Free State, confirms that he notified workers of the
court order and the consequences
of the order.
122.11
Joseph Mosia, a regional education
officer with NUMSA in the Free State and the Northern Cape, confirms
that he visited Alpla in
Harrismith. On two occasions he
discussed the order, its nature, import and extent with the workers
who were present.
This is further confirmed by two other shop
stewards (Chere Tshabalala and Jacob Kheswa).
122.12
Batshegi Soaratlhe, an employee of Alpla
Denver, and a member of the shop stewards committee, confirms that a
number of NUMSA officials
(she identifies seven) addressed workers in
Elandsfontein and advised them to act peacefully and lawfully.
122.13
Hogana, a local organiser of NUMSA,
stated that she regularly visited workers at PSA Plastics alongside
Sebola, the chairperson
of the shop stewards committee at PSA
Plastics. At these meetings she would speak with workers about
the need to ensure that
pickets were peaceful, that workers should
not prevent ingress and egress of cars and trucks; that workers who
continue to work
should not be harmed and NUMSA members should not
carry dangerous weapons. She visited other sites and repeated
the above
message. Sebola informed her that Frans Mathega, a
local organiser for NUMSA, had done the same. Sebola and
Charlotte
Makholwa, chairperson of the shop stewards committee of
Sondor Sebenza, Simon Morune an employee of Plaslope and a NUMSA
member,
confirm the contents of Hogana’s affidavit.
122.14
Andre Hicks, a local organiser of NUMSA
in Bellville states that he told workers at Peninsula Packaging to
remain focussed on the
objectives of the strike and not to conduct
themselves in any way that would justify disciplinary action being
taken against them
and to behave in a peaceful and lawful manner.
122.15
Rashid Caroulus, an employee of
Peninsula Packaging (Cape Town) and a shop steward, states that he
conveyed the message to workers
to conduct themselves peacefully
during the strike and persuaded them to act in a disciplined manner.
122.16
Mzamo Effort Khoza (Khoza), a union
official, stated that on Monday 22 October he publicly communicated
the contents of the order
to members of NUMSA engaged in the strike
in Isipingo. He requested that members abide by the order and
act lawfully.
He repeated this admonition on several occasions
and says that he has done all in his power to ensure that the strike
is lawful.
He also gave his cellular number to SAPS in order
for them to contact him if there was any unlawful conduct so that he
could assist
in ensuring that the strike was conducted lawfully.
122.17
Maxwell Hlongwane, an employee of Swan
Plastics (Pty) Ltd and a shop steward, confirms the affidavit of
Khoza and states that on
Monday 22 October 2018, when Khoza addressed
workers about the content of the court order, he expressly called on
NUMSA members
to abide by the content of the court order and to act
lawfully.
122.18
Lizwi Mthombeni (Mthombeni), an employee
of Swan Plastics (Pty) Ltd and a NUMSA shop steward, confirms the
contents of Khoza’s
affidavit and states that Khoza expressly
called on NUMSA members to comply with the court order and to act
lawfully. Mthombeni
further adds that he, at all times,
prevailed on members to act lawfully and in accordance with the
contents of the court order.
He states that he has also been of
assistance to SAPS to ensure that members utilize the shopping
complex opposite Barrier Film
Converters without breaching the
interdict.
122.19
Maharala confirms that Tshambuluka
addressed workers outside Bowler Plastics premises and told them,
among other things, that workers
must conduct themselves in a
peaceful manner and that they should not do unlawful things.
122.20
On 22 October 2018, on instruction from
Xoli Takalo, a local organiser of NUMSA, Maharala informed workers at
Bowler Plastics of
the Court Order, including the 150-meter perimeter
and the need to comply with the order. Silaule and Selowe (both
employees
of Bowler Plastics and members of the shop stewards
committee of NUMSA at Bowler) confirm the affidavit of Maharala.
122.21
Bogatha states that Mosiane confirms in
his affidavit, that besides herself, a number of union officials
have, from time to time,
visited workers at the sites in Roodekop and
Wadeville and during these visits the officials have always
emphasised (among other
things) the need to have peaceful protest
action or pickets. Bogatha says that she also visited the
picketers on an almost
daily basis.
[123]
The onus is on PCASA to prove beyond a
reasonable doubt that NUMSA has not complied with the interim strike
interdict, including
paragraph 4. This means that PCASA had to
show that NUMSA did not take reasonable steps to encourage its
members, supporters
and followers not to engage in any unlawful
conduct. In my view, it has failed to do so. At most,
PCASA referred to
statements, as opposed to affidavits, by a few
“NUMSA members” who say that they were not informed about
the interdict.
[124]
In any event, NUMSA has illustrated, at least
with reference to the workplaces where most of the problems occurred,
that they communicated
the order. Once again, it cannot be
expected of NUMSA and its officials to show what steps it took to
encourage its members,
supporters and followers not to engage in any
unlawful conduct in the absence of PCASA being able to show where
NUMSA failed to
do so. Given the evidence put up by NUMSA of
its compliance, even if it falls short of what was required by
paragraph 4,
as contended by PCASA, I cannot find that any
non-compliance was wilful or
mala
fide
.
[125]
As referred to earlier, PCASA did not submit
any written or oral arguments in support of the above breaches.
I have no doubt
that if PCASA believed that there was a case for
NUMSA to answer in respect of the alleged breaches it would have
advanced the
necessary arguments. Its decision not to do so is
telling.
[126]
In the circumstances,
I must conclude that it has not been established that NUMSA can be
held in contempt of the interim strike
interdict order. It is
simply not possible to reach this conclusion given the high threshold
to prove contempt.
[127]
My conclusion in no
way means that I condone the heinous acts of violence, intimidation,
torching and destruction of property that
accompanied this strike.
It is also definitely not cause for NUMSA to regard itself as
victorious. There are no winners
in this sad saga. What
remains as fact is that the strike was accompanied by rampant
violence resulting in non-striking workers
ending up in ICU and at
least one of them beaten nearly to death. Despite its denials,
it is simply not possible given all
of the incidents of violence,
intimidation and destruction, that NUMSA members played no role in
perpetrating these acts and that
it is the work of criminals, other
unions or political parties. This type of conduct is
unacceptable and for too long has
been a prominent feature of many
strikes in South Africa, despite the introduction of the LRA in
1995. It can only be hoped
that NUMSA, as a major trade union
and participant in the strike in question, has invested as much
resources, financial and otherwise,
in trying to establish if any of
its members were involved in the criminal conduct, as it must have
invested in respect of this
litigation. This is particularly so
as NUMSA repeatedly stated in its papers that such conduct is
contrary to its policies.
[128]
Senior leaders of
NUMSA, such as Jim and Mabho, should also be mindful of what they say
to their members in circumstances where
their members may be
disillusioned that their protected strike is not having the desired
effect and support for the strike is waning.
Responsible
leadership is required.
Costs
[129]
I am of the view that
no cost order should be made in this matter. The issues raised
in this case are of substantial importance
and neither party can be
faulted for launching their respective applications. There is
therefore no basis for burdening either
party with a cost order.
[130]
In the circumstances,
I make the following order:
Order:
1.
The contempt
application is dismissed.
2.
The
counter-application is dismissed.
3.
There is no
order as to costs.
_________________
BN
Conradie
Acting
Judge of the Labour Court of South Africa
Appearances:
Applicant:
Advocate Anton Myburgh SC
Instructed
by: Anton Bakker
Attorneys.
First
Respondent: Advocate Daniel Berger SC
Instructed
by: Haffagee Roskam
Savage Attorneys.
[1]
On
the strength of the Constitutional Court’s decision in
Matjhabeng
Local Municipality v Eskom Holding Limited and others
2017 (11) BCLR 1408 (CC).
[2]
1977
(3) SA 141
(T) at para 138.
[3]
Mukaddam
v Pioneer Foods (Pty) Ltd and Others
2013 (5) SA 89
(CC) at para 42.
[4]
[2019]
40 ILJ 798 (LAC) at para 22.
[5]
[2017]
7 BLLR 681 (LAC).
[6]
Anton
Steenkamp
The
Labour Courts in 2014: The Position after the Promulgation of the
Superior Courts Act and in Light of the Amendments to Labour
Legislation
(2014) 35
ILJ
2678 at 2686.
[7]
Phillips
and Others v National Director of Public Prosecution
2006
(2) BCLR 274 (CC).
[8]
Victoria
Park Ratepayers’ Association v Greyvenouw CC and others
[2013] ZAECHC 19
(“
Victoria
Park
”)
at para 9.
[9]
(2767/2012)
[2012] ZAFSHC 176
(20 September 2012).
[10]
2017
(11) BCLR 1408
(CC).
[11]
2014
(11) BCLR 1310
(CC) at para 62.
[12]
“
Access
to Courts -
Everyone
has the right to have any dispute that can be resolved by the
application of law decided in a fair public hearing before
a court
or, where appropriate, another independent and impartial tribunal or
forum.”
[13]
Fakie
NO
v
CCII
Systems (Pty) Ltd
[2006] ZASCA 52
;
2006 (4) SA 326
(SCA) at para 42.
[14]
Lord
Wedderburn
The
Worker and the Law
3 ed (1986) 686.
[15]
1991
(12) ILJ 533 (C) quoting with approval E Cameron, H Cheadle & C
Thompson - The New
Labour Relations Act (1989
) at 99.
[16]
K
O’Regan ‘Interdicts Restraining Strike Action –
Implications of the Labour Amendment Act 83 of 1988’
(1988) 9
ILJ 985. See also A Rycroft ‘Being Held in Contempt for
Non-Compliance with a Court Interdict: In2Food (Pty) Ltd
v Food and
Allied Workers Union (2013) 34 ILJ 2589 (LC)’ (2013) 34 ILJ
2499 and A Rycroft ‘What can be done about
strike related
violence?’ (2014) 30 International Journal of Comparative
Labour Law and Industrial Relations 203-4.
[17]
In
National
Union of Food Beverage Wine Spirits and Allied Workers (NUFBWSAW)
v
Universal
Product Network (Pty
)
Ltd
2016
4 BLLR 408
(LC) par 10-11, also endorsing Rycroft op cit (n1) at 203
(“The interdict / injunction gives applicants – usually
employers – a tactical advantage because
the likelihood of a full trial is in most cases small, and the
employer’s widely expressed assertions of ‘interference
with business’ or ‘extreme violence’ become
prima
facie
evidence which the union has to disprove
”).
(underlining added)
[18]
Suzanne
Birks “
The
doctrine of Labour Contempt
”
(1976) 38 (3)
Queens
Law Journal
38 cited in Rycroft
op
cit
(n1) at 2502. See also O’Regan
op
cit
(n5) at 386, 389-91 and 407.
[19]
Ibid
at 49.
[20]
Fakie
NO v CCII Systems (Pty) Ltd
[2006] ZASCA 52
;
2006
(4) SA 326
(SCA) at para 42.
[21]
Compensation
Solutions (Pty) Ltd v Compensation Commissioner & others
(2016) 37
ILJ
1625 (SCA) at para 15.
[22]
See also
SA
Municipal Workers Union v Thaba Chweu Local Municipality
[2015]
JOL 32840
(LC)
where
this court summed up the position as follows - “
Therefore,
and in terms of the ratio in CCII Systems, for this court to be
satisfied that a respondent in a contempt
application is indeed in
contempt of court, the court must be satisfied, beyond reasonable
doubt, that: (1) there was a refusal
to comply with the order; (2)
this
refusal was wilful (deliberate); and (3) the deliberate refusal to
comply must be mala fide, in other words there must be
a complete
absence of any kind of bona fide justification for the refusal to
comply
(even if this justification relied on is ultimately found to be
objectively unreasonable or unsustainable). Crystallised down
to its
simplest terms, a respondent is in contempt where the respondent
knows and understands the terms of the order and what
is required to
be done to comply with the order, but then without any cause or
justification deliberately does not comply.”
[23]
Food
& Allied Workers Union v In2Food (Pty) Ltd
(2014) 35
ILJ
2767 (LAC) at para 12.
[24]
As
the LAC put it in
In2Foods
at para 9, “
[t]he
principle upon which a juristic entity is held to perform acts is by
acting through its officials
”.
[25]
(2019)
40
ILJ
297 (LAC) at paras 18-19.
[26]
GRI
Wind Steel SA
v
AMCU
& others
(2018) 39
ILJ
1045 (LC) at para 17.
[27]
(2018)
39
ILJ
656 (LC) at para 12.
[28]
See
generally, Contempt of Court in the Context of Strikes and Violence
- Contemporary Labour Law 109.
[29]
Victoria
Park
at
para 18.
[30]
Thaba
Chweu supra
at
para 27.
[31]
Victoria
Park
at para 19.