Sneller Verbatim/MLS
IN THE LABOUR COURT OF SOUTH AFRICA
BRAAMFONTEIN CASE NO: JS 313/02
2002-11-20
In the matter between
SAAPAWU & OTHERS Applicant
and
CARRADALE WHOLESALE Respondent
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J U D G M E N T
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LANDMAN J : The applicants in this matter are the South
African Agricultural Plantation and Allied Workers Union,
Wilson Singo and 23 others. Their statement of claim cites as
the respondents Carradale Wholesale CC and Carradale
Estates CC.
Both are reflected as having their place of business on
portion 1 of 34, portion of portion 16 of the farm Bokfontein
448 Brits, North-West Province.
Paragraph 4.1 of the statement of case alleges that the
dispute is in respect of the automatically unfair dismissal of
the individual applicants "by the respondent on 24 November
1999 for refusing to give up union membership of a trade
union."
The facts upon which the applicants rely are
conveniently set out in the statement of case ... (inaudible)
November 1999 Kenneth Musharine, the supervisor of the
respondent, learnt that the individual applicants had joined the
first applicant, i.e. the union. He reported the facts to
Jenny McKenzie who was a member of the respondents.
On 24 November 1999 Musharine called a meeting of all
the respondent's employees. At that meeting Musharine
instructed the respondent's employees that those who have
joined the union should proceed to the union offices to
deregister their membership of the union and only thereafter
may they report for duty.
Individual applicants decided not to deregister their
union membership. Musharine then told them that they would
not be allowed to report for duty. Two of the employees did in
fact deregister their union membership and were allowed to
report for duty.
On 25 November the individual applicants approached
the union organiser who immediately approached the
respondents, however, the respondents refused to allow the
individual applicants to report for duty unless they deregister
their membership of the union.
The applicants did not accept this and tendered their
services to the respondents.
A liberal interpretation would indicate that the applicants
alleged that they were employed by the respondents, it is not
clear whether it is alleged that they were employed by both
CC's or the CC's jointly. I am alive to the probabilities that
farm workers would ordinarily not know that they may be
employed by a corporate body.
In this case the respondents have been identified as the
employers or as the employer. But Mr Zitha who appears on
behalf of the applicants stated from the bar that the individual
applicants do not know who their true employer is. I assume
that this relates to the CC's which have been cited as the
respondents.
Carradale Wholesale CC is alleged by Mr A P McKenzie of
Carradale Estates CC to have ceased trading in December
1999. This must be taken to have occurred after the
dismissal for whatever cause of the individual applicants.
The member or members of Carradale Wholesale CC,
Jennifer Ann McKenzie, died on 16 August 2000. Mr McKenzie
is the executor of her estate. He alleges that the CC no
longer exists and Mr Beaton submitted from the bar that it was
in voluntary liquidation.
Carradale Estate CC alleges that it had not employed
the individual applicants according to the affidavit by Mr
McKenzie who says that he is the sole member of that CC.
this affidavit was filed in regard to the condonation of the late
filing of the statement of response.
Mr Zitha who appeared for the applicants has conceded
after the matter was raised, well, judgment had been
reserved, that Carradale Wholesale CC no longer exists. This
means that the action is not pursued against the CC.
What is left is the possibility that either Carradale Estate
CC or Carradale Estate CC and the defunct CC were the
employers. It seems, however, that the applicants now
merely allege that Carradale Estate CC was their employer.
Mr McKenzie who is, as I have indicated, the sole
member of the CC explains that the defunct CC employed the
individual applicants.
He says:
"As can be seen from the second respondent's reply to the
statement of case filed by the applicants, the first respondent
no longer exists, it ceased operating during December 1999
and this cessation of activities was proceeded by
retrenchment of the individual applicants. I personally lent
money to my know deceased sister who ran the business of
first respondent to pay the severance packages to the
individual applicants."
The first respondent of course refers to the now defunct
CC.
Mr McKenzie's affidavit does not say that Carradale
Estate CC did not employ the individual applicants, although
this is his case as set out in the statement of response.
I should mention the allegation of an automatically unfair
dismissal where it is concerned, the applicants allege that "the
supervisor of the respondent" reported the facts to Jenny
McKenzie "who was a member of the respondents."
The instruction to resign the union membership
apparently emanated from this report to her. This appears
too from paragraph 5.2 of the statement of case. It seems to
be alleged by Mr McKenzie that Ms McKenzie was the sole
member of the defunct CC, however, this is not entirely clear.
The relevant page of form LRA7/11 reflecting the dispute
which has been sent to the CCMA sets out the details of the
employer, however, this portion of the form has not been
completed. But the proof of service of the referral of the
CCMA notice regarding the conciliation hearing and the
certificate of outcome, the union's letter of 10 March 2000, the
largely illegible letter WS5(ii), the union's letter of April 2000,
26 July 2000 and 14 September 2000 are all addressed to the
defunct CC.
The first two documents mention the late Ms McKenzie
by name. I do not know if there was cross-membership of the
CC's when Ms McKenzie was alive. This was not canvassed in
the applicants' papers. The records in the company's office
would reveal whether or not this was the case.
The applicants in my opinion did not show a prima facie
case that Carradale Estate CC was the employer. This taken
together with the delay of one year and eleven months which
is only partly explained, leads me to the conclusion that the
application for condonation should be refused.
The application is dismissed and there is no order as to
costs.
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