IN THE LABOUR COURT OF SOUTH AFRICA
SITTING IN DURBAN
OF INTEREST
CASE NO : D573/2002
HEARD ON : 30 July 2002
DELIVERED ON : 30 July 2002
REVISED ON : 27 AUGUST 2002
In the matter between:
ENFORCE GUARDING (PTY) LTD Applicant
and
NASUWU and OTHERS Respondents
BEFORE THE HONOURABLE MS JUSTICE PILLAY
ON BEHALF OF APPLICANT MR VAN NIEKERK
ON BEHALF OF RESPONDENTS MR I MOODLEY
TRANSCRIBER
SNELLER RECORDINGS (PROPRIETARY) LTD DURBAN
J U D G M E N T
PILLAY J
[1] This is an application to confirm the rule nisi in an urgent application,
with costs against the first respondent on an attorney and client scale.
[2] The respondents raise in limine the point that the rule should not have
been granted in the first place as notice in terms of section 68(2) of the
Labour Relations Act No 66 of 1995 (the LRA) had not been given.
Notice, it was submitted, meant service of the Notice of Motion
supported by affidavit.
[3] The judgment of LANDMAN J in Automobile Manufacturers Employers
Organisation v NUMSA [1998] 11 BLLR 1116 [LC] relied upon by the
respondents is distinguishable from this case. In that case the
application related to the automotive industry. Furthermore, it related to
a secondary strike where better notice was possible. This case
concerns the security industry. Industrial action had serious
implications for third parties, the clients of the applicant and their
customers. But for certain features, such as the availability of
alternative labour, it is akin to an essential service. It was further
submitted that the reasons for noncompliance with the notice period
should be clearly stated in the affidavits.
[4] Although the applicant admitted that it did not serve notice by delivery
of the Notice of Motion with affidavits, it notified the respondents in
writing 48 hours before launching the application. The basis of the
application and the relief sought were obvious from the notice. This
court has on occasion granted urgent interdicts without written notice
and on the basis of oral evidence. This matter was urgent as it
concerned the security of clients of the applicant and their customers.
In the circumstances, the Court remains satisfied that sufficient notice
was given of the intention to launch the application.
[5] The second issue is whether the first respondent should be ordered to
pay costs on an attorney/client scale. The respondents have tendered,
without prejudice, an amount of ten thousand rand (R10 000,00)
towards costs in settlement.
[6] The respondents' conduct has been deliberate, irresponsible and at
best negligent. They made no serious effort to withdraw the strike
notice after they had received notice of this application. The strike in
fact ensued after the notice was given. The respondents were alerted
in writing to the fact that the issue giving rise to the strike had been
resolved. Even if the applicant had conceded the issue after notice of
the strike or if the respondents had only just become aware of the
concession, they failed to take steps to avoid the strike.
[7] The first respondent required the concession to be recorded in an
agreement, so it was submitted. The applicant's concession was
already in writing in the form of a letter. The insistence on an
agreement was unreasonable. Certainly it did not warrant recourse to
such drastic measures as industrial action.
[8] All the evidence points to the probabilities that the first respondent
sought the signing of a recognition agreement which was not the
subject of the dispute on which the strike was launched.
[9] The respondents' conduct has also been substantially disruptive of the
relationship of trust. They breached the undertaking not to rely on the
certificate of nonresolution of the dispute. If the first respondent had
decided to withdraw the undertaking, it should at least have forewarned
the applicant. The applicant may well have contributed to the
breakdown of the relationship. However, in the picture presented to
me, the respondents are in this instance principally culpable. In the
circumstances :
a. the rule is confirmed.
b. the first respondent is ordered to pay the applicant's costs on an
attorney and client scale.