REPORTABLE
IN THE LABOUR COURT OF SOUTH AFRICA
SITTING IN DURBAN
CASE NO: D1249/2002
Date of Hearing : 02/08/02
Date of Judgment : 05/08/02
In the matter between:
MIDLANDS PINE PRODUCTS (PTY) LTD Applicant
and
CEPPWAWU & OTHERS Respondents
JUDGMENT DELIVERED BY THE HONOURABLE MS JUSTICE
PILLAY
FOR THE APPLICANT : ADVOCATE CRAMPTON
Instructed by: Austen Smith
Attorneys
FOR THE RESPONDENTS: ADVOCATE SEERY
Instructed by: Chennels Albertyn
& Tanner
TRANSCRIBER
SNELLER RECORDINGS (PROPRIETARY) LTD DURBAN
J U D G M E N T
PILLAY J
[1] This is the return day of a rule nisi which I granted on an urgent basis on
16 August 2002 and extended on 2 September 2002 interdicting the
second and further respondent employees from acting unlawfully by,
inter alia , blockading the applicant's premises and intimidating,
harassing, assaulting or verbally abusing the applicant's employees.
The parties have since had an opportunity to plead their respective
cases fully. Whether the rule should be confirmed or discharged must
be determined from all the information now before Court. The factors
relevant for determining the matter finally are set out hereafter.
[2] Notice of the strike was given on 16 July 2002. A lockout was instituted on
18 July 2002. The initial acts of unlawfulness allegedly occurred on 30
July 2002 when veiled threats were allegedly made to nonstrikers.
Nonstriking staff were instructed not to come to work from 2 August
2002 until further notice because of the alleged intimidation and threats
by the employees. The factory was closed on 5 August 2002 after the
staff were allegedly threatened. Three days later, on 8 August 2002,
the applicant resolved to launch this application. Seven days later, on
15 August 2002, at 17h10, after normal business hours, the first
respondent was served by fax. At 8h10 the following morning the first
respondent was served by delivery of a copy of the application to its
office in Durban.
[3] The respondents engaged attorneys and counsel at about 09h00 and
11h00 respectively on the morning of the application. The matter was
stood down until 14h00 for argument, if it was not resolved before then.
[4] During argument in the interim application Mr Seery, for the respondent,
had objected to the grant of the relief as no case for urgency had been
made out. As he had been instructed only a few hours earlier, he had
not had an opportunity to take instructions from employees as they
were based some distance away in Wartburg. He had also submitted
that the applicant had not exhausted alternative remedies. His
instructions were to deny the unlawfulness of the conduct of the
employees.
[5] It was common cause that the factory had been closed for about two
weeks. Prima facie the closure was brought about by the conduct of
the employees. In my view at the time, the closure of the factory was a
drastic step which would not have been taken by the applicant unless
the threat of harm was reasonably apprehended. Although the
applicant delayed in launching the application, it appeared then to have
taken the protective step of closing the factory. However, the factory
could not remain closed indefinitely.
[6] With regard to Mr Seery's submissions that the applicant deliberately gave
late notice of the application to the respondent to disadvantage them as
much as possible, and that there was an alternative remedy, I took the
view that these submissions would be better dealt with once the
respondents had filed their answering affidavit.
[7] All the applicant had established at the time was a prima facie right and
urgency arising from the closure of the factory. The Court was not
satisfied on the limited information before it that there was an
alternative remedy. Erring on the side of caution, I granted the interdict
which, in any event, temporarily prohibited the respondents from doing
what they were in terms of the common law not permitted to do anyway.
[8] The applicant reopened the factory after the interim interdict was
granted.
[9] From the answering affidavits it now emerges that during the period 18
July to 15 August 2002, the respondents assembled daily at the factory.
Meetings were held with the shop stewards on a regular basis, yet no
complaint was made whatsoever about the alleged unlawful conduct of
the employees. Neither the shopstewards nor the first respondent was
asked, either orally or in writing, to prevail on the employees to desist
from conducting themselves unlawfully if this was what they were doing.
They were not put on terms in any way. No notice of any sort was
given to the respondent of the applicant's intention to launch this
application before 15 August 2000.
[10] In its reply, the applicant fails to explain these omissions adequately. The
submission that the intention to launch this application was not
discussed at a meeting between the representatives of the parties held
on 13 August 2002, two days before the application was served,
because it was not "germane" to the discussion, when that meeting had
been convened to attempt to settle the wage dispute, manifests, at
best, a na ïve approach to labour dispute resolution. I cannot rule out
the likelihood of the respondent being mala fide in the circumstances.
[11] The applicant's explanation for the delay in launching the application was
that there was a long weekend starting on 9 August 2002.
Furthermore, the matter was complex. If the matter was complex for
the applicant, whose principal witness was its manager, Mr van
Rensburg, it would have been equally if not more complex and time
consuming for the respondents. They were assembled together. They
would be witnesses about their own conduct as well as that of their
comrades. If it took the applicant all of a week to launch the
application, it must have realised that giving the respondents less than
24 hours' notice would be wholly inadequate.
[12] At the hearing of the interim application the applicant had motivated that
the interdict should be granted as it was interim, and to protect common
law rights. On this basis, and taking into account the closure of the
factory, the delay in giving notice of the application seemed less
significant. However, in the absence of an explanation on the return
day for not giving better notice, the only reasonable inference to draw is
that the applicant wanted to give as little notice as possible to the
respondents of its application.
[13] With regard to the alternative remedy, the applicant attached to its
founding affidavit a letter dated 17 July 2002 from its employer's
association to the bargaining council. The letter sets out the picketing
rules which the applicant would apply. Paragraph 1.1 of the letter
provides:
"The company and the union are committed to implement the belowmentioned
procedure in order to ensure acceptable conduct of all parties during any
industrial action. If either party alleges a breach of this agreement a meeting
shall be held to discuss the allegations as soon as possible, but not later than
twelve hours of such allegation having being made.
Paragraph 1.2 states:
"Any party breaching the rules shall rectify such breach as soon as possible and
within twelve hours after the meeting allowed for in subparagraph 2.1 above.”
The rules include the following:
Para 2.1 Noninterference with the applicant's operations during a
strike.
2.2 Noninterference with nonstriking employees, service providers and
suppliers by strikers
2.3 No employee to be pressurised into participating in industrial action.
2.4 Prohibition of first respondent's officials and strikers from entering the
factory premises for purposes other than a meeting with the applicant.
2.7 Noninterference with the applicant's access control procedures.
2.8 Prohibition of first respondent and its members obstructing roads on the
respondent's premises.
3.7 Picketing shall not be used to intimidate nonstrikers.
3.9 Picketers shall not interfere with access and egress of any person
wishing to enter or leave the premises.
3.11 Picketers may carry no weapons of any kind.
[14] These rules regulate precisely the situation that is the subject of this
application. The stipulation that the parties meet not later than twelve
hours of an allegation of a breach being made, provides the process
through which urgent relief could ensue. These were the rules that the
applicant committed itself to and which, it alleged, were binding on the
respondents. The rules, embodied as they are in a letter on behalf of
the applicant to the bargaining council, is not a collective agreement. If
the rules were binding on the parties, as alleged by the applicant, then
the applicant has failed to abide by its own procedure.
[15] At the hearing of the interim application Mr Seery argued that the
applicant's picketing rules and procedure provided an alternative
remedy. Mr Crampton, for the respondent, submitted that the urgent
relief sought was not the same as that which might ensue after a
meeting before the bargaining council. These arguments were
repeated in the application for final relief.
[16] In its reply, the applicant fails to give any explanation as to why it did not
invoke the procedure of referring the dispute to the bargaining council
for a meeting, either before or after the granting of the interim order. Mr
Crampton merely repeated his submission that the remedy sought
would not be the same. That, in my view, is preempting the outcome
of the meeting. If there was such a referral this application could have
been averted altogether. As a procedure that is far less aggressive than
an interdict the respondents might have been more amenable to
addressing the applicant's concerns. They might even have given an
undertaking, without admitting any wrong doing, that had the effect of
an interim order. The meeting procedure and this application are not
mutually exclusive.
[17] A careful conspectus of all the evidence now before me militates against
the extension of the interim order. The prima facie purpose of the
application is the prohibition and prevention of harm and the protection
against unlawful conduct. However, it is also underpinned by an ulterior
motive, one of which is to gain a tactical advantage over the
respondents in the dispute about wages and other issues.
[18] The confirmation of the rule requires a finding as a fact that the employees
committed misconduct. They would then be put on the defensive. That
would give the applicant a moral and psychological advantage over the
employees. It could shift the balance of forces during bargaining. It is
simplistic to suggest, as Mr Crampton did, that the order merely sought
to prohibit and prevent that which the employees were not allowed to do
anyway. Whilst that motivation may have been sufficient for an interim
order, it does not meet the requirements for a final order.
[19] I say that the applicant was motivated by an ulterior purpose because,
firstly, the applicant's failure to notify the respondents of its intention to
launch the application was not merely an inadvertent omission but a
deliberate effort to take the respondents by surprise. The natural and
obvious course of action for the applicant was to have raised its
concerns with the respondents’ representatives as soon as they arose.
There was opportunity for doing so as the parties met frequently during
the industrial action. It could also have sent a fax to the first
respondent.
[20] Secondly, the applicant did not invoke its own procedures which were
faster twelve hours instead of the eight days that it took to launch this
application and significantly cheaper.
[21] Thirdly, the applicant has not demonstrated any inclination to resolve this
dispute. It has still not referred the alleged breach of the picketing rules
to the bargaining council. There was no reason for it to wait until this
order was finalised. On the contrary, having regard to the reservations
the Court expressed when granting the interim order about its failure to
utilise the alternative procedure, the applicant should have referred the
matter to the bargaining council immediately after the interim order was
issued.
[22] Fourthly, the applicant's treatment of the respondents is offensive.
o The applicant refers to the employees as a "mob" in this application.
o It refused to pay the employees on 2 August 2000 unless they
assembled in the soccer field. If the applicant was apprehensive, it
should have made arrangements that were not demeaning or
provocative.
o Mr van Rensburg admitted saying sarcastically "Sure, I do not like
blacks". His followup statement that "When I recently visited Zimbabwe,
I mostly visited my erstwhile black employees and presented them with
many gifts, etc" does little to ward off the accusation of racism levelled
by the respondents.
[23] Fifthly, I am no longer convinced that the only reason for the closure of the
factory was the alleged conduct of the employees. From 15 July 2002,
before any industrial action, the applicant stopped the nightshift and
operated with only one shift because of the lack of sufficient orders. If
the closure was in fact triggered by the lack of sufficient work, it would
explain why the applicant closed the factory for two weeks before
approaching this Court for relief. There would have been no urgency
for the application.
[24] The inferences which I draw in the preceding paragraph, without having
heard argument, are not conclusive as there was no proof of what the
applicant's orders were during the closure. However, it is sufficient to
cast doubt on the applicant's stated purpose of the relief sought.
[25] An interdict is not there for the asking simply because it seeks to enforce
the common law. In labour law other factors, such as the collective
bargaining obligations of the parties, may also be a consideration.
[26] Having found that the applicant was motivated by an ulterior purpose, I am
disinclined to extend the rule. Although it is not necessary for me to
deal with the substance of the applicant's complaint, I do so for
completeness. In order to confirm the rule I must find as a fact that the
employees committed acts of misconduct as alleged. This I am not
able to do on the papers for, although the employees admit chanting
slogans and carrying sticks and other objects, they deny that in the
context their conduct was unlawful. Such a dispute of fact can only be
resolved by oral evidence. I see no purpose in referring the matter for
trial in this court when the same issues may be traversed in disciplinary
proceedings.
[27] Further, there are other features that suggest that the applicant does not
have a clear and convincing case for final relief.
[28] Mr van Rensburg testified that on 1 August 2002 the employees
prevented a staff vehicle from entering the premises. When he arrived
at 09h00 they blockaded the entrance. He had to hoot before they
cleared the way. None of these incidents were recorded in the report
on the industrial action. On the contrary, the report records that at 8.30
the situation was calm. At 9.05 the security approached the
shopstewards to attend a meeting with management. The report does
not present the same picture of tension and insecurity that Mr van
Rensburg seeks to convey.
[29] In reply, the applicant attached letters from staff who applied for leave
because they allegedly felt threatened by the employees. If they could
submit such letters and have them incorporated in this application, I see
no reason why they did not confirm the allegations on oath. Their
allegations that they felt threatened therefore remains hearsay.
[30] The applicant employed a private security firm, Community Watch, whose
armed guards supervised the salary payout on 2 August 2002. It is
common cause that the applicants approached the South African Police
Services to be in attendance when the payout occurred. That suggests
to me that the respondents were equally concerned about safety and
maintaining order.
[31] In the circumstances the rule is discharged, the applicant to pay the
second and further respondents' costs.
JUDGE D. PILLAY