IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT BRAAMFONTEIN CASE NO JS1021/01
In the matter between:
National Union of Leather and Allied
Workers' Union First applicant
Jacob Ramatlo and 427 others Second and
further applicants
and
Bader Bop (Pty) Ltd First respondent
Bader Blueings (Pty) Ltd Second respondent
Bader Trimmings (Pty) Ltd Third respondent
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JUDGMENT
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LANDMAN J:
The first applicant is the National Union of Leather and Allied Workers ("NULAW"), a registered
trade union. It is the collective bargaining representative of the second and further applicants. The
individual applicants are listed in annexure "E" to the pretrial minute. They were all members of the
union at the time of their dismissal.
The Respondents are Bader Bop (Pty) Ltd, Bader Blueings (Pty) Ltd, and Bader Trimmings (Pty)
Ltd. The three companies conduct their business on the same premises, stand 232, 3 rd Street,
Garankuwa Industrial Site, North West Province. The individual applicants were employed by the
companies. I shall refer to the companies as “Bader”.
Bader manufactures goods for the motor vehicle industry. On 30 January Baderbop dismissed 428
employees who were on an unprotected strike. They and their union have referred a dispute to this
court concerning the dismissal of the individual employees. Bader in turns seeks payment of
compensation for the damages allegedly caused by the strike.
The parties agreed that the issues would be separated. At this stage I am only required to
determine whether the dismissals were substantively and procedurally unfair. I am not required to
determine what relief should be awarded if the dismissals were unfair.
Applicants’ amended statement
The trial concerning the fairness of the dismissal of the individual applicants was completed on 30
March 2004. The applicants amended their statement of claim. I reproduce paragraph 4 of the
amended statement of claim.
“4.1. On the Wednesday the 24 th January 2001 the Applicants and other nonNulaw employees
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commenced unprocedural strike action at the Respondents' premises in Garankuwa, over the
Respondents' failure to pay additional pay for overtime.
4.2 The First Applicant was advised of the strike and was requested to intervene, which it did.
4.3. The 1st Respondent issued an ultimatum on the 24 th of January 2001 requiring Nulaw
members to immediately cease participation in the strike and to resume their duties.
4.4. The Applicants failed to comply with this ultimatum and, on Thursday the 25 th of January
2001, the Respondents commenced employing casual workers to replace the Applicants.
4.5. In the period between the 24 th and 29 th of January 2001, several meetings were held at the
respondent's premises in Garankuwa between the First Applicant, the Respondents and the First
Applicant's membership in an attempt to persuade the membership to return to work.
4.6. On Monday the 29 th of January 2001 at approximately 14h00, subsequent to a meeting
between the Respondents, the First Applicant and another union, the 1 st Respondent
issued a "termination ultimatum" to the striking employees requiring that the strike cease
and that the employees report for duty and commence working on Tuesday the 30 th
January 2001 at the start of each of the employees shift/working day.
4.7. On the afternoon on Monday the 29 th of January 2001, subsequent to the issuing of this
ultimatum, the First Applicant held a general meeting with its members present at the
Respondents' premises at the time and the individual Applicants present at the time were
persuaded to comply with the ultimatum and to return to work.
4.8. After having issued the ultimatum, and without any notice of whatsoever nature, the 1 st
Respondent approached the High Court of South Africa Transvaal Provincial Division and, on oral
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evidence, obtained an interdict against the employees of the 1 st, 2 nd, and 3 rd Respondents.
4.9. The 1 st Respondent did not advise the court that the Labour Court has exclusive
jurisdiction in matters of this nature.
4.10. The High Court ordered that a transcript of the oral evidence be served together with its
order. The Respondents failed to do this.
4.11. The High Court indicated that those employees reporting for work should be allowed to do
so.
4.12. On the 29 th January 2001 at 22h00, those individual applicants who attended at the
Respondents' premises were met by the Sheriff of the High Court and members of the South
African Police Services. The Sheriff read out the court order which excluded the individual
Applicant's from the 1 st Respondents premises and forbade them from being within 400 metres of
the 1 st Respondent's premises without the permission of the 1 st Respondent.
4.13. This order was interpreted into English and Setswana.
4.14. This order was read out to each subsequent shift reporting for work on the 30 th January
2001 and the individual Applicants reporting for work on these shifts were also denied access to
the 1 st Respondent's premises.
4.15. As a consequence of the Respondent's action, the Applicants were prevented from
complying with the ultimatum and returning to work.
4.16. At a meeting on the 30 th January 2001, requested by the First Applicant, the Respondents
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advised the First Applicant's General Secretary, Martin Paulsen, that the individual Applicants had
been dismissed.
4.16. The dismissals took place prior to the expiry of the ultimatum.
4.18. The Respondents failed to advise the individual applicants of their dismissals.
4.19. No hearing of any nature took place prior to the dismissals.
4.20. The 1 st Applicant has repeatedly asked that it be provided with the notices of
dismissal of the individual Applicants but these have not been forthcoming.
4.21. The 1 st Applicant has repeatedly invited the Respondent's to advise on what basis those of
its members who remain in the Respondents' employ have retained their employment. The
Respondents have failed and/or refused to reply to this.
4.24. The conciliation meeting was held at the Bargaining Council for the Leather Industry
on the 8 th of February 2001.
4.25. The Respondent, despite being given adequate notice, failed to attend at the dispute
meeting and failed to make any attempt to resolve the dispute.”
Legal Issues
The legal issues which arise for decision, as stated in paragraph 5 of the amended statement, of
case are the following:
“5.1. The individual Applicants were unfairly dismissed by the Respondent both procedurally and
substantively for, inter alia, the following reasons:
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5.1.1. The Respondents by their own conduct prohibited the individual from complying with
the ultimatum;
5.1.2. The Respondents failed to advise the 1st Applicant of their intention to dismiss the
individual Applicants and failed to attempt to resolve the issue with the 1 st Applicant;
5.1.2. The Respondents failed to advise the individual Applicants of their dismissals;
5.1.3. The Respondents failed to attempt to hold a predismissal hearing of the any nature
prior to the dismissals.”
Common Cause Facts
The amended statement of case must be read with the common cause facts set out in the pretrial
conference minute. It is common cause that:
“2.4. On Wednesday, 24 January 2001, the individual Applicants and other nonNULAW
employees commenced unprocedural strike action at the Respondents' premises in Garankuwa.
2.5. The First Applicant was advised of the strike and was requested to intervene, which it did.
2.6. The First Respondent issued an ultimatum on 24 January 2001 requiring NULAW members
to immediately cease participation in the strike and to resume their duties. The strikers failed to
comply with this ultimatum.
2.7. In the period between 24 and 30 January 2001, several meetings were held at the
Respondents' premises in Garankuwa between the First Applicant and some of its shop stewards
on the one hand and the Respondents on the other in an attempt to persuade the strikers to return
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to work.
2.8. In this period, NULAW representatives and representatives of another union, namely
SACTWU combined for the purposes of dealing with the issues underlying the strike and the
resolution thereof.
2.9. During these meetings, the Respondents' representative attempted to establish what
the issues underlying the strike were. The Respondents pleaded with the
representatives of the strikers that strikers should return to work and pursue their
grievance through the agreed procedures.
2.10. The union representatives, pursuant to these meetings, advised their members that the
strike was unprotected and in breach of the collective agreement. The First Applicant's union
officials wanted the strikers to resume work, and the strikers were advised by their representative
to resume work.
2.10. During a meeting held on 29 January 2001, Mr Ramatio a shop steward of the First
Applicant uttered the words:
"Mark, I think what Mr Naude explained it is still the position even now, that feeling from the
participating members is still there and then I emphasised to Mr Naude, I reiterated that according
to how they view the intention of the company, the company is actually moving away from the
problem and creating another problem because they are adamant that should any one of those
people standing out there enter this premises or work here, then police or no police or rather some
people will die because that is the benefit of the struggle in most cases. They will wait here and do
anything and they will go to an extent of damaging the machines, and those who are being taken
out there to come in there, they will be forced to sleep here and more so some of them know where
this people live out there in their communities they will go to an extent of visiting their respective
residence and deal with them accordingly so that is the feeling of this angry employees".
2.12. During the meetings held, the representatives of the strikers were given a number of
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opportunities to make representations as to why they should not be dismissed if they
did not return to work.
2.13. By 29 January 2001 one of the reasons for the individual Applicants refusal to
resume work was the Respondents' decision to place them on final warnings for unlawful strike
action and to recover damages from them.
2.14. During the strike, the strikers occupied and protested in the area of the main gate to
the factory premises as well as the entrances to the factory and administrative building. The
strikers blew hooters and whistles in the vicinity of the administration building and one of them
brandished a wooden replica of an AK47.
2.15. Some of the strikers slept on the premises of the Respondents on the nights of 24 and 25
January 2001.
2.16. On the afternoon of the 29 January 2001 a meeting was held between the Respondents and
the Applicants' representatives at which an ultimatum was discussed. On the same afternoon, the
Respondents issued a further ultimatum to those striking employees present at the time requiring
that the strike cease and that the employees report for duty and commence work on Tuesday, 30
January 2001 at the start of each of the employee's respective shifts.
2.17. On the afternoon of Monday, 29 January 2001, the First Applicant held a general meeting
with some of its members regarding the ultimatum.
2.18. On Monday, 29 January 2001, the First Respondent, approached the High Court of South
Africa, Transvaal Provincial Division, by way of an ex parte application based on oral evidence, for
an interim interdict against the strikers.
2.19. At the start of every shift from 22h00 on 29 January 2001 to 22h00 on 30 January 2001, the
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Sheriff of the High Court as well as members of the South African Police Services were present at
the Respondent's premises.
2.20. On the morning of the 30 January 2001, Mr Naude called Messrs Bokaba and Marapyane
to attend a meeting with the Sheriff at approximately 06h20 The Sheriff explained the interdict.
2.21. Later that same morning but before 09h00 there was a further meeting between the
shop stewards, the Sheriff, Mr Naude and Mr Oosthuizen.
2.22. At about 11 h30 on 30 January 2001, a further meeting was held at the request of the First
Applicant's general secretary, Mr Paulsen.”
The Law
Section 68 (5) of the Labour Relations Act 66 of 1995 provides:
“Participation in a strike that does not comply with the provisions of this Chapter, or conduct in
contemplation or in furtherance of that strike, may constitute a fair reason for dismissal. In
determining whether or not the dismissal is fair, the Code of Good Practice: Dismissal in Schedule
8 must be taken into account.”
Item 6 of the Code provides:
"(1) Participation in a strike that does not comply with the provisions of Chapter iv is misconduct.
However, like any other act of misconduct, it does not always deserve dismissal. The substantive
fairness of dismissal in these circumstances must be determined in the light of the facts of the
case, including
(a) the seriousness of the contravention of this Act;
(b) attempts made to comply with this Act; and
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(c) whether or not the strike was in response to unjustified conduct by the employer.
(2) Prior to dismissal the employer should, at the earliest opportunity, contact a trade union official
to discuss the course of action it intends to adopt. The employer should issue an ultimatum in
clear and unambiguous terms that should state what is required of the employees and what
sanction will be imposed if they do not comply with the ultimatum. The employees should be
allowed sufficient time to reflect on the ultimatum and respond to it, either by complying with it or
rejecting it. If the employer cannot reasonably be expected to extend these steps to the employees
in question, the employer may dispense with them."
The onus rests upon the employer to prove that the dismissals are substantively and procedurally
fair.
The dispute, strike hearing and ultimatum
The immediate trouble started on the evening of 22 January 2001 when Bader required the 26
workers in its trimming division to work a double shift to meet an urgent order from a client. It is
doubtful whether Bader was lawfully entitled to make this request but the trimmers agreed to work
this overtime provided they were each paid R300 tax free. The company acceded to their demand.
The news of this piece of successful collective bargaining spread rapidly. At 08:00 the next
morning, Mr J Ramatlo, NULAW’s chief shop steward, informed Mr E Naude, Bader’s Human
Resources manager, that his members, who had worked overtime in the past, demanded that they
too be paid R300 for that overtime. A strike commenced at 10:30.
A series of meetings took place between management and the shop stewards. During these
meeting the shop stewards articulated their demands and conveyed their members’ anger at
management’s discriminatory decision. Management in turn explained the circumstances that led
management’s discriminatory decision. Management in turn explained the circumstances that led
to the technical manager/director agreeing to the trimmers’ demand. Management endeavoured to
persuade the shop stewards to urge the strikers to resume their duties. Management issued two
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warning to the strikers.
The workers were on a full time strike. They behaved badly and created a hostile atmosphere.
Casual employees were threatened with the loss of their lives.
Management prevailed upon NULAW’s leadership to intervene. The union leadership was afforded
an opportunity to persuade the workers to return to work. When this did not eventuate, the shop
stewards were required to provide reasons why an ultimatum to return to work or be dismissed
should not be issued.
The various meeting between management and the shop stewards, including those where the
union leadership was present, constituted the audi alteram partem which the company was obliged
to afford the strikers. Indeed this was recorded as common cause in the pretrial conference
minutes as follows:
“During the meetings held, the representatives of the strikers were given a number of opportunities
to make representations as to why they should not be dismissed if they did not return to work.”
The witnesses for Bader testified that the representatives did not avail themselves of these
opportunities. I find this to be the case.
On Monday 29 January, at about 14:00, management issued a written ultimatum to the strikers.
The ultimatum was given to the shops stewards and copies were handed to the workers present at
the factory. The ultimatum gave the workers sufficient time to reflect on the fact that their strike was
an unprotected one and that only an unconditional return to work would prevent their dismissal.
The ultimatum was to be complied with the next day at the commencement of the respective shifts.
The strikers had time to discuss it with fellow strikers and as a collective. Those strikers who had
not received a copy of the ultimatum would be informed of its contents when they presented
themselves at their appointed shifts the next day. I may add that on the union’s version the
ultimatum had served its purpose for the strikers resolved to return to work.
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There was never any doubt that the strike was a wildcat strike. It had not been sanctioned by the
union. I am unable to determine whether the strike enjoyed the support of the shop stewards.
Nevertheless the shop stewards acted as the representatives of the strikers. Not the slightest
attempt had been made to engage the procedure laid down by the LRA. I assume in favour of the
applicants that there was no prohibition on industrial action, but there was no attempt to conciliate
the dispute. There was no notice of intention to proceed with the strike. There was no immediate
and urgent need to embark on the strike. Although the strike may have been inspired partly by the
unsatisfactory manner in which Bader dealt with the longstanding SEBO pension fund issue; the
R300 demand and the prospect of discipline and compensation were the outstanding issues.
Bader suffered a major shortage of labour. This negatively affected productivity. The amount of the
loss has yet to be proved. But it is beyond dispute that Bader suffered a loss of production. The
strike began on 24 January. Efforts had been made to resolve the dispute. It has been submitted
that Bader may have done more to resolve the dispute eg by offering an apology for succumbing to
the demands of the trimmers and paying them R300 for their overtime. There is some merit in this.
But the settlement of the dispute was primarily a matter for discussion at informal processes
designed to conciliate disputes and the formal conciliation processes of the LRA.
In my view the dismissals following upon a failure to comply with a proper ultimatum would be
substantively fair.
The stage was set. The strikers had to report for their respective shifts at the appointed hours on
30 January i.e. 06:00, 07:30, 14:00, 18:00 and 22:00. If they did not, they would be regarded as
having been dismissed. The overwhelming majority of strikers did not report for duty. They were
dismissed.
Reaction to the ultimatum
To appreciate the events of 30 January it is necessary to take a pace back and consider the
acquisition of a High Court interdict, the alleged reading of the ultimatum to the 22:00 shift followed
by the reading of the interdict by the Sheriff on 29 January 2001.
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The behaviour of the strikers had persuaded management that an interdict was required to secure
the safety of other employees and casual employees. Bader felt the need to invoke the assistance
of a court of law. Bader sought, on an urgent basis, and obtained an interdict from the Transvaal
Provincial Division (TPD). The union was given notice of the application when a 63 second
celphone call was made to Mr Paulsen, a union official. The shop stewards, who were meeting with
the management at this time, were deliberately kept in the dark about this application.
The interdict itself has no legal validity. The TPD had no territorial jurisdiction over the parties. But
the fact that it was issued and served upon most of the strikers must be taken into account. At the
same time sufficient cognizance must be paid to the fact that the unlawful conduct of the strikers
played a role in the decision to seek an interdict.
The ultimatum was handed out at about 14:30 on 29 January 2001 to the 200300 employees who
were on strike and at or near the factory. These employees have not been identified. But Ms Joan
Mboweni who testified said that she received a copy. So did Mr Monyane.
The strikers read the copies of the ultimatum handed to them and then tore them up and continued
dancing and blowing their vuvuzelas.
It is common cause that a shop steward or shop stewards held a meeting with those present at the
factory about the ultimatum. An intention to comply with the ultimatum would be manifested by a
return to work. Mrs Mboweni said that that Mr Ramotlo told them to report on the morrow in
compliance with the ultimatum.
Tuesday 30 January
The applicants’ version of what happened on Tuesday differs from that of the Bader. I shall set out
Bader’s version and then that of the applicants.
Bader’s version
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Bader’s version as regards the first two shifts is conveniently summed up by Mr Oosthuizen at a
meeting held at about 09:00 on Tuesday.The minute records the discussion. The following were
present: M Oosthuizen MO; E Naude EN; J Ramatio JR; G Montsho GM; P Sedile PS; 0
Marapyane OM; T Bokaba TB; and T Khumalo TK.
“M.O. Good morning lady and gentlemen
“M.O. Good morning lady and gentlemen I have asked for this meeting just to go through the
events of this morning and just to put them into their proper context. As you are aware and here I
am talking in respect of the shop stewards and we have explained it to the Sheriff, Mr Paul Sedile
that an ultimatum was issued yesterday calling upon the employees to return to work on their
respective shifts and tendered their services. Last night the ten o'clock shift was addressed by
myself and Mr Paul Sedile the Sheriff explaining the ultimatum and Mr Sedile explained the court
order that he served on them, explaining to them the content and the impact thereof. This morning
at six o'clock the first shift was supposed to report for duty, I just want to confirm that nobody
tendered their services, I also want to confirm that Mr Eddie Naude was at the gate and he had
explained the ultimatum to the employees and that those employees that want to come and work
must go through, collect their clock cards and go to work. Nobody took up the offer or responded to
the ultimatum, whereafter Mr Paul Sedile read out the Order, the Order is in Afrikaans, it was
explained in English, sorry Mr Sedile, In Tswana?
P.S. Tswana.
M.O. So it was explained to the people and basically the order in a nut shell instructed that: 1.
Nobody is allowed on the premises without the company's permission, secondly nobody is allowed
within 400m of the Company's premises without permission, thirdly that you are not allowed to
intimidate any person entering the premises for purposes of working and fourthly there is to be no
damage to Company property. Now we have waited for the 7:30 day workers to arrive, same
procedure was followed as you shop stewards are aware, because you were party to it. Mr Naude
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again explained the issue of the ultimatum, invited those people who wanted to work to come to
the gate, collect their clock card and go to work and explained that those who don't tender their
services in terms of the ultimatum are dismissed, whereupon Mr Paul Sedile then served the order
on the people present. Now, I have just to put on record, I have faxed a copy of the order to Mr
Martin Paulse and per Jacob's request, I have got confirmation of the transmission if anybody is
interested in receiving it, but I will keep it so that if ever that becomes questioned at least we have
got proof of transmission. Now gentlemen we have covered the 6:00 shift and 7:30 shift. The only
other people who are at this stage capable of tendering their services are the people that come on
14:00 to 22:00 and we will follow the same procedure as we have with the 6:00 shift and the 7:30
people and then the same procedure will be repeated this evening in respect of the people
attending duty at 22:00. Keep in mind the ultimatum expires on the occasion of your shift or on the
occasion that you are to report to work. If you do not report to work you are dismissed as
discussed yesterday. I believe that the ultimatum as per Jacob's advices was explained to the
employees and copies were handed out to me ??? employees. Well we know most of them tore up
the copies of the ultimatum. Just to now discuss the issue of the Court Order, the people have to
now disperse. The court order is very clear no one who does no person or no employee or any of
the strikers who does not have permission to be on me premises has to get off the premises, not
come onto the premises and furthermore no one without permission is allowed within 400m of the
Bader Bop premises and that order now has to be observed and respected. I have asked the
officer in charge of the just to attend so that we can sort this matter out in an orderly fashion,
obviously we would like the employees cooperation, failing which gentleman the authorities are
empowered to act in terms of the court order so that its terms are respected. I don't know if there
are any queries, anything that anybody wants to raise at this stage?
J.R. Mark, okay thank you. I have been listening to what the Company has been saying, I want to
believe that earlier on I explained to you that the Union is requesting a copy of the court order
obviously the Company just confirmed that through the as well they need proof of the transmission
of such a document and further to that attempt we have from our side you know spoken to the
employees while the sheriff of the court was explaining the contents of this document to them.
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Now, the question of cooperation from the employees or from the workers side we did it from our
side, we emphasise that we are still busy conciliating as to how can you, you know bring this
situation back to normal order now what we are requesting from them is their cooperation and that
as the court order indicates that we should not intimidate victimises anyone who might be coming
into the premises with the intention of carrying out services and then further to that that they are
still awaiting, we are still awaiting the Union's advise, you know their opinion in this regard and then
hence into the company's attack. The response from the Union was that we should hangout in the
meantime while they are going though the document and then. when they are finished they will
respond and give us advise to that effect and then we will take it from there.
M.O. Okay, could you find Mr Martin Paulse now please because I don't want something to happen
while the people are out there. I would him, if you can speak to him now, so that we can start
enforcement of the court order please. So Jacob if you can phone him quickly you know so that he
can advise and then, you know you can with the Sheriff, I would imagine the Sheriff and possibly
the inspector explain to the people that they must now disperse peacefully. We have got your cell
number, you have got the Company numbers, as and when the Union organiser arrive, obviously
we will have a meeting and you would then obviously advise us accordingly so that the necessary
arrangements can be made. Okay, well one of the Union's organisers, Thokezani has arrived.
E.N. Mark, can you maybe check with the people also the departmental heads obviously are
required at the factory they are still sitting at the gate. It is just those people coming to work, are
there any further who want to come in or can we get the departmental heads dispersed.
O.M. Yah I should believe that there is confusion, there are a lot of confusion, because there are
parents that put forward have you consulted with the Company to get their permission as to what
happened in the morning.
M.O. Well, at 6:00 in the morning nobody arrived, nobody tendered their services in terms of the
ultimatum.
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O.M. Okay, let me tell you what happened, because you were not here you
have just arrived. Okay what happened we have been here since 5h30,
the people came and then they were prevented from entering and only people and the only
people who allow to enter this company was the people
from the trimmings department only. Then at a later stage Mr Naude actually caught me and
Mr Bokaba and explained the situation to us that actually what the Company is trying to do is that
they have put the departmental heads there at the gate so that employees who still wish to come
in, they can come in, take you card and proceed with going to work. Subsequent to that Mr Paul
Sedile was called and then actually to explain the court order.
M.O. That is right.
O.M. That is where the confusion actually came, because they were led to believe that me
ultimatum that was issued yesterday, the employees have objected to the ultimatum and they had
to respond. Then their response that. was expected of them by the company was to come in and
work, but prior to that they were prevented from entering the premises. That in itself caused
confusion, because people don't know whether they have been dismissed automatically or
not. .........
M.O. The ultimatum expired at 6:00 this morning and at 7:30 the people were asked those that
wanted to work could come in to work, the gates were not locked in respect of the people that
wanted to come in. Mr Naude explained to them that there was an arrangement that people that
want to come in and work as you have confirmed, come in, get their clock cards from their
respective departmental head manager and they go and work. So nobody was prevented ....
O.M. Mark you were not here, Mr Naude never said that to employees out here they had to
deliver such information to the employees after this now….”
E.N. Shop stewards was called between 6:10 and 6:15 okay for discussions. Before that the
people were not prevented to come onto the premises, trimmings people were coming through,
other employees did not want to enter the premises. We had a specific case where Mr Botha, one
person came because it was before Mr Botha was here, then when Mr Botha arrived went to call
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him to say, look you can come through, then he did not want to come through. So I do not agree
with your pretension that the people were prevented on coming onto the premises, they did not
come onto the premises, then after 6:00 when they did not come onto the premises I called the
shop stewards, I explained the situation to them, Mr Sedile explained the court order to you, we
then went, I then addressed the people again in your presence to inform them that those people
who want to come onto the premises to work must do so, if they don't (Naude answers cell phone)
it was explained to thein that those people who want to come onto the premises to come and
tender their services and work are welcome to come on if they do not enter the premises a court
order has been obtained and then that would apply and Mr Sedile then explained the court order to
them. That was in the presence of Mr Fourie also.”
The procedure was repeated for the 14:00 and 22:00 shifts. 220 employees were scheduled to
report for duty on the 14:00 shift. Between 40 and 50 employees arrived at the factory gate before
the start of the shift. Mr Naude read the ultimatum to them and invited them to enter the premises.
None of them responded. The sheriff then read the interdict. They dispersed.It is common cause
that no one reported for the 18:00 shift.
On 30 January, 30 employees scheduled to work the 22:00 shift arrived at the premises. They
were spoken to by Mr Ramtlo and did not report for work. Four employees who were NULAW
members and who had been on strike presented themselves for work. 90 employees did not report
for work.
Mr “X” an unidentified striker told Mr Oosthuizen, in a question and answer session which has been
recorded, that the strikers were angry and armed themselves with planks with the intention of
assaulting casuals. He did not read the ultimatum on Monday 29 January. He heard about its
contents. He understood he was to report for duty the next day. Mr Diayle told the strikers to go
back to work and he would “bring the certificate for a legal strike”. The shop stewards were
opposed to this and the meeting decided not to return to work.
On Tuesday “Mr X” saw Mr Naude talking to the people. He says the sheriff read the ultimatum. He
also said the sheriff read the court order. The sheriff spoke second. He saw managers seated at
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tables. He was part of the strikers. He went with them to Gomma Gomma. The worker decided not
to go back to work. He decided to go to work. He was on the 14:00 shift. He walked in through a
back entrance, went to Mr Marais and clocked in. Management regarded the strikers who did not
report for work on 30 January as having been dismissed.
Applicants’ version
The evidence led by the applicants was to the effect that they had resolved to return to work in
accordance with the ultimatum handed out on 29 January. The ultimatum was not read out before
each shift. They were prevented from entering the premises and tendering their services by the
court interdict read by the sheriff, backed up by police.
Mooke
Mr Mooke was a tanner. He knew the strike was unprotected. He says he was aware of this
throughout the strike. He was given a copy of the ultimatum on 29 January. A shop steward, Mr
Bokala, and 100200 workers were present at the time. Later said about 300400 workers were
present. He understood the ultimatum. The shop steward told them to report to work tomorrow ie
30 January. They agreed to do so.
On 30 January he and others returned to the premises to report for work. He was to work the 06:00
shift. He entered the premises at 05:40. But Mr Naude told him to wait outside. The trimmers were
allowed in. Mr Naude repeated this over and over as crowd grew. Mr Naude told them of the court
order. Mr Naude did not read ultimatum. The sheriff read it at 06:15. The workers were told to stay
400 m away. He was confused by this. A small group of workers remained outside the gate. The
rest moved away to Gomma Gomma.
He only saw Mr Naude at the gate. He later admitted that others managers were seated at the
tables. He saw that the 07:30 shift was not allowed in. But under crossexamination said he was
not there when sheriff read the interdict to the 07:30 shift. He stayed around until 15:0016:00 then
he went home.
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Jane Mboweni
Ms Jane Mboweni was an assistant sprayer. She was present at the factory premises on 29
January until 14:00. She was not given a copy of the ultimatum. About 250300 of her fellow
strikers were present waiting to hear about the future of the strike. She conceded that a shop
steward Bokaba was present.
On 30 January she went to Bader’s premises. Her shift was at 06:00. She said she did not intend
working. She arrived at 05:50 in the company of two trimmers She found the gate closed and
workers were waiting outside. The Police were there. The trimmers entered the premises. She did
not. The security staff and the supervisors were pointing out those who could enter. After 06:00 the
sheriff came out. He read the ultimatum to them. He said they had been dismissed. She said that
she meant the sheriff had read the interdict.
She stood around for about 30 minutes. She understood she had been dismissed. She approached
her manager Mr Warren Phipps at the gate. He said he could do anything as an interdict had been
issued. She said she did not see Mr Naude. But later she said that she saw Mr Naude after the
sheriff had read the interdict. She went away with the workers to wait. She was not told that she
had been dismissed.
She was waiting at Gomma Gomma at 07:30 but could not see what was happening at the gate.
While she was there she heard singing. She does not know anything about a meeting allegedly
held there. She heard of the ultimatum on the afternoon of 30 January.
Monyane
Mr A B Monyane worked in the milling section. He received a copy of the ultimatum at 15:00 on 29
January. It was given to him by a security guard. A meeting was held. Mr Bokaba, a shop steward
was present and addressed the gathering. The other shops stewards came while he was
addressing the strikers. At the meeting they were told that the strike had been cancelled and that
they would go back to work on the morrow. He arrived at about 07:30 as was his habit. He saw 12
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policemen and police vehicles and company security officers at the gate. The gate was closed or
locked. He did not see any member of management. The police told him not to approach the gate
but to stand on the other side of the road.
The sheriff spoke to them at 07:40. He addressed those present and told them that they had been
dismissed from work. He did not see Mr Naude. He went to wait at Gomma Gomma. A union
official came to speak to them but he does not remember what was said.
Moche
Ms Rosemary Moche came to work on 29 January for the 22:00 to 06:00 shift. About 10 workers
were present. The chief shop steward, Mr Ramatlo, read the ultimatum to those present. She
understood that the workers were going to return to work. The sheriff then read the interdict. No
police were present. Mr Oosthuizen was not there.
On 30 January she arrived at 13:00 although her shift would begin at 22:00. She waited at Gomma
Gomma with her coworkers. They told her that they were not to go to work because of the court
interdict. She said “We were dismissed as we could not go into the premises”. This is the reason
that she did not report for work at 22:00. She did not know anything about a meeting held at
Gomma Gomma.
Mori
Mr Obed Mori testified. He was a drum operator. On 29 January there was no consensus about the
strike. A security guard, whose name he does not know, prevented him from entering the premises.
The guard read the ultimatum to him. He understood it and had time to reflect upon it. The guard
said that the shifts would commence the next day. The police were inside the yard.
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On 30 January he came to work. At Gomma Gomma a coworker told him that they were not going
to proceed to work. His coworker told him that the interdict required them to keep 400 m away
from the premises. At 14:00 he nevertheless went to the gate. The sheriff read the interdict to those
present. He said they were dismissed. He did not see Mr Naude. He left Gomma Gomma between
15:00 and 16:00.
When were the individual applicants dismissed?
It is part of the applicants’ pleaded case that the individual applicants were dismissed before the
expiry of the ultimatum ie the commencement of the five shifts on 30 January. The applicants
allege that at a meeting on 30 January Bader management advised the Martin Paulsen, the
general secretary, that the individual applicants had been dismissed. Mr Paulsen did not give
evidence. Mr Oosthuizen testified that a meeting was held that day at 11:30 with Mr Paulsen. But it
was an off the record discussion. He declined to say what had been discussed. It has not been
shown that the individual applicants were dismissed before the ultimatum had expired. The
dismissals were not effected in writing.
Were the strikers prevented from working and was the ultimatum read?
These issues must be dealt with together as they are inextricably linked to each other. The
applicants’ case is that on the 30 January the individual applicants were prevented from tendering
their services because the sheriff ordered the strikers to keep 400 metres away from the premises.
Bader's case is that the interdict was read after Mr Naude read the ultimatum and invited those
present for the 6:00, 7:30, 14:00 and 22:00 shifts to enter the premises and resume their work. I
am satisfied that the evidence of Mr Oosthuizen and Mr Naude, which was subjected to withering
crossexamination should be accepted as being credible and reliable. As far as the reading of the
ultimatum is concerned their evidence is strengthened by the video tape of part of the events which
took place outside the gate.
Ms Mboweni's evidence and that of Mr Mooke was unsatisfactory. Mr Monyane's evidence was
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evasive. Ms Moche's evidence is contrary to the probabilities, so is Mr Mori's evidence. I find that
an ultimatum and an invitation to enter the premises was extended to those strikers who attended
at the commencement of the 6:00, 7:30, 14:00 and 22:00 shifts. The refusal by the strikers to heed
the ultimatum or to accept the invitation led to their dismissal.
Element of confusion?
The passive presence of the SA Police Service, the reading of the ultimatum by Mr Naude followed
by the reading of the interdict by the sheriff may have injected an element into the proceedings on
30 January which two of the applicants’ witnesses contend led to confusion and which caused the
strikers not to comply with the ultimatum. I have given much thought to this. But this confusion
ought not to have been a factor as the shop stewards knew of the interdict on 29 January. On the
applicants’ version had become academic as they had resolved to return to work. Any confusion
which might have been present would have abated when the ultimatum was read at the
commencement of the shifts. But even if the reading of the interdict, which followed, could have
caused some confusion in the minds of the striker, I am unable to deal with it simply because the
union witnesses say that no ultimatum was read at the shifts.
Prevention
The applicants’ case is simply that the interdict was read. It or rather its terms forbade them from
entering Bader’s premises and Bader dismissed the individual applicants. I have found that
although the interdict was of no legal effect it must be treated as being of full legal effect where its
true nature would prejudice the applicants. But I have found that the interdict was not read in
isolation. It followed the reading of the ultimatum and an invitation to enter the premises and clock
in. It was only when this invitation was refused that the interdict was read.
On the case, as presented by the applicants, it is not open to me to consider whether the ultimatum
did not reach all the strikers. In any event the evidence does not show that any applicants were
dismissed without, at least, receiving oral the ultimatum. The only witness who says she did not
hear an ultimatum was, in my opinion, untruthful. For the same reason I am unable to consider
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whether the time for reflection for a striker hearing the ultimatum for the first time was sufficient.
Conclusion
I am constrained by the narrow compass of the defined issues. On this basis I find that the
dismissal of the individual applicants was procedurally and substantively fair. The parties are
agreed that costs should follow the result.
In the premises the application is dismissed with costs, the costs are to include the costs of two
counsel.
SIGNED AND DATED AT BRAAMFONTEIN THIS 30th DAY OF JUNE 2004.
A A Landman
Judge of the Labour Court
Date of hearing: 25, 26, 27, 28 February, 27, 28, 29 October 2003, 24, 25, 26,
29, 30 March 2004
Date of judgement: 30 June 2004
For the applicants: Ruth Edmonds Attorneys
For the respondent: Adv J Grogan and with him Adv Barnard instructed by RC Futter Attorneys
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