00IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG
CASE NO: J 1507/05
In the matter between:
MAKHADO MUNICIPALITY Applicant
and
SOUTH AFRICAN MUNICIPAL WORKERS
UNION (SAMWU)
First Respondent
AS RABAKALI Second Respondent
and 669 OTHERS Third and Further
Respondents
JUDGMENT
[1] This is the return day of a rule nisi granted on 11 August 2005 and
subsequently extended on 7 September, 21 October and 22 November
2005. The final relief sought flows from the alleged conduct of striking
workers during a protected national strike called by SAMWU in August
2005.
[2] On 11 August 2005, a rule nisi was granted in the following terms on an
unopposed basis:
“1 That the Second and further Respondents employed by the
Applicant be interdicted and prohibited from picketing inside all
the identifiable and identified premises of the Applicant, including
but not restricted to the municipal offices, work stations, water
and sewerage works, electrical installations and any other office,
yard or facility of the Applicant, without the permission of the
Applicant being had or obtained or the CCMA having laid down
picketing rules in terms of section 69 of the Labour Relations Act,
66 of 1995;
2 That the Second and further Respondents employed by the
Applicant be interdicted and prohibited from causing or
threatening to cause damage to, or intimidating or preventing to
work or from entering of premises, any member of senior
management and any other employee of the Applicant in the
alternative the movable or immovable property of the Applicant;
3 That the Second and further Respondents employed by the
Applicant be interdicted and prohibited from preventing or
harassing members of the general public from entering the
premises of the Applicant, in the alternative doing business with
the Applicant;
4 That the Second and further Respondents employed by the
Applicant be interdicted and prohibited from in any manner
whatsoever preventing or interfering with the supply of essential
services by the Applicant and / or its employees;
5 That the Second and further Respondents employed by the
Applicant be interdicted and prohibited from carrying on with
their strike action in any manner whatsoever that may cause
damage to the person or property of the general public.”
[3] On the return day, the Applicant sought final relief in the same terms.
[4] The Respondents contended that:
1. There is no purpose to be served in confirming a rule in respect of
alleged conduct that has long since ceased.
2. Final interdicts of indefinite duration will rarely be granted unless
the Applicant can show a likelihood that such conduct will be
repeated within that time, which is not shown on these papers,
rather the reverse.
3. The Applicant has not referred the dispute about picketing on its
premises to the Commission for Conciliation, Mediation and
Arbitration (‘the CCMA’) thereby rendering any interdict in
respect thereof (which at most could only be of interim duration
pending the adjudication of the matter) incompetent and
purposeless.
4. The Applicant seeks drastic and wide-ranging final relief,
purposeless.
4. The Applicant seeks drastic and wide-ranging final relief,
including costs against 307 of the union’s members, without any
attempt to identify the alleged perpetrators of the conduct
complained of; without providing any explanation why this is not
possible; and without any factual basis for treating the second
and further respondents as a group beyond their participation in a
protected strike.
3
5. The application is fraught with disputes of fact. There is no
application to refer the matter to oral evidence. The matter must
therefore be determined on the Applicant’s uncontested
allegations set out in its founding affidavit, together with those
contained in the Respondent’s answering affidavit. These fall far
short of sustaining the wide relief sought.
6. The Applicant attempts, in large measure, to make out its case in
its replying papers, and on inadmissible hearsay and similar fact
evidence, which is impermissible. In situations of urgency, the
proper course would have been to seek to supplement the
founding affidavit, so that the Respondents would have a proper
opportunity to respond thereto.
FIRST POINT IN LIMINE : CONDUCT HAS CEASED
[5] Mr Euijen, for the Respondents, raised a point in limine that the
protected strike action embarked upon by the union’s members had
ceased and that the final relief sought would, therefore, serve no
purpose. He argued that the rule should be discharged for that reason
alone.
[6] It is trite that in order to obtain a final interdict, there must be a
continuing injury or a reasonable apprehension of future harm
occurring. The court will not grant an interdict restraining an act
already committed. 1 The object of an interdict is to protect an existing
right; it is not a remedy for a past invasion of rights. 2 This principle has
been endorsed by the Labour Court in a situation such as the present.
In Polyoak (Pty) Ltd v Chemical Workers Industrial Union &
others 3, Brassey AJ stated the position as follows:
‘The Fourth prayer I consider improper is an open-ended one, that
is, one that binds the Respondents for a period whose duration is
indefinite and potentially unlimited. As I have said, an interdict
can be granted only to restrain misconduct that is likely to occur
can be granted only to restrain misconduct that is likely to occur
in the future. The period during which this is likely to happen is a
question of fact, but it will rarely, if ever, be indefinite. It will
normally last for no longer than the motive for wrongdoing
1 Maeder v Perm-Us (Pty) Ltd 1939 (CPD) 208; Conde Nast Publications
v Ltd v Jaffe 1951 (1) SA 81 (C) at 86; Performing Right Society Ltd v
Berman 1966 (2) SA 355 (R) at 357; Francis v Roberts 1973 (1) SA 507
(RA) at 511-513 .
2 Phillip Morris Inc & another v Marlboro Shirt Co. SA Ltd & another
1991 (2) SA 720 (A) at 735 B .
3 (1999) 20 ILJ 392 (LC)
remains alive – typically, within this context, the duration of the
strike plus the time it thereafter takes for life to return to normal.
The unlimited operation of a sword of Damocles, to which I
referred above, is more than simply undesirable, it is legally
wrong.’
[7] In the present case, however, the union has not unequivocally called off
the strike action. The second Respondent, A S Rabakali (the
chairperson of the union at Makhado Municipality) stated under oath in
his answering affidavit that the union had “suspended” its strike on 15
August 2005 and that it was “unlikely” that it would recommence with
the strike in respect of this year’s round of wage negotiations. It is
common cause that the wage dispute giving rise to the strike action has
not been resolved. The union elected to “suspend” the strike rather
than to end it. In the circumstances, there is still a possibility that the
strike may be resumed.
[8] The point in limine does not succeed. The likelihood of future harm,
however, remains to be considered.
SECOND POINT IN LIMINE : REFERRAL OF PICKETING DISPUTE TO CCMA
[9] In terms of section 69(8)(b) read with section 69(11) of the Labour
Relations Act (“the LRA”) 4 a dispute about the right to picket during a
protected strike must first be referred to the CCMA for conciliation, prior
to adjudication by the Labour Court.
[10] Section 69(10) states unequivocally: “The Commission must attempt to
resolve the dispute through conciliation.” Only if the dispute remains
unresolved, any party to the dispute may refer it to the Labour Court for
adjudication.
[11] It is common cause that no dispute regarding the Respondents’ request
to be allowed to picket on the Applicant’s premises has been referred to
the CCMA for conciliation.
[12] The Applicant contends that this court ought to condone this failure, as
[12] The Applicant contends that this court ought to condone this failure, as
it had done in the matter of Lomati Mill Barberton (a division of
Sappi Timber Industries) v PPWAWU & others .5 In that case,
however, the court condoned the failure to refer a dispute to the CCMA
in a situation of urgency – similar to the stage at which the rule nisi in
this matter was granted on 11 August 2005. The Applicant now seeks
final relief. It has had a further three months to refer any such dispute
to the CCMA for conciliation and to this court for adjudication. It has
4 Act No 66 of 1995
5 1997 4 BLLR 415 (LC) at 418 A
5
not done so.
[13] In the circumstances, I agree with Mr Euijen that the relief sought in
paragraph 1 of the rule nisi cannot be granted in the form of final relief
in the absence of a referral to the CCMA.
THE MERITS
[14] It is trite that an applicant for final relief is confined to establishing its
entitlement to a clear right from “… those facts averred in the
Applicant’s affidavits which have been admitted by the Respondent,
together with the facts alleged by the Respondent …” 6.
[15] It is impermissible to make out a case for relief only in the replying
papers. 7 Where considerations of urgency have precluded the
preparation of a comprehensive founding affidavit, leave should be
sought to supplement such founding affidavit, prior to requiring the
respondents to answer the allegations made against them. 8
[16] The Applicant sought and was granted the rule nisi against the union
and 669 of its members, purely on the basis of their membership of the
union.
[17] Subsequently the Applicant has conceded in its replying affidavit that
no more than 307 of the union’s members were on strike. It is also
constrained to maintain, also in its replying affidavit, that there were
only approximately 200 strikers present at the picket. It is immediately
apparent that, on the Applicant’s version, it seeks relief against
approximately 100 persons without any justification therefor.
[18] Throughout the applicant’s founding affidavit, no attempt is made to
identify any act of any particular individual (save in two instances dealt
with below). The second and further Respondents are referred to
6 Plascon Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA
623 A at 634 H-I
7 Bayat v Hansa 1955 (3) SA 547 (N) at 553 C-G; Union Finance
Holdings Ltd v IS Mirk Office Machines II (Pty) Ltd 2001 (4) SA 842 (W)
Holdings Ltd v IS Mirk Office Machines II (Pty) Ltd 2001 (4) SA 842 (W)
at 847 D-E; Central News Agency (Pty) Ltd v Commercial Catering &
Allied Workers union of SA & another (1991) 12 ILJ 340 (LAC) at 343 C-
H
8 Polyaok (Pty) Ltd v Chemical Workers Industrial Union & others
(1999) 20 ILJ 392 (LC) at 395 B-D
throughout as ‘the strikers’, the ‘crowd’, or a ‘mob of strikers’. Not
even the strike committee is pertinently identified by name, let alone
alleged conduct, save for the second applicant.
[19] The Labour Court has previously warned that it will not grant relief
against unidentified members of a faceless crowd, unless a proper basis
is laid therefor. 9 No such attempt is made in the founding, or even the
replying papers in this regard.
[20] The Respondents admit that some of them picketed in the municipal
parking lot outside the municipal offices during the morning of 8 August
2005 and again at the municipal workshop on 10 August 2005. It is
common cause that this conduct has not been repeated since then. Even
though the strike has been ‘suspended’ only, the Applicant makes out
no case for a reasonable apprehension of further harm.
[21] The Respondents deny the Applicant’s bald allegations concerning the
picketing. Their denial is substantiated with details of the measures
taken by the strike committee to ensure that access to the Applicant’s
premises was facilitated, namely:
21.1 Through the appointment of 20 marshals to control the picketers;
and
21.2 Cordoning off the picketers with barrier tape.
[22] The Applicant’s case in this regard is based on two statements:
22.1 A statement made at the meeting with the strike committee on 8
August 2005 that ‘this is the beginning of the war’; and
22.2 a statement allegedly made by ‘David’, who is said to have told
Mr Pretorius, a plumber employed by the Applicant, to ‘f… off and
go back to [his] office.’ The Respondents have not had an
opportunity to answer this allegation, as ‘David’ is only identified
in the replying affidavit.
[23] The remainder of the Applicant’s case in this regard amounts to a
number of unsubstantiated conclusions regarding alleged threatening or
number of unsubstantiated conclusions regarding alleged threatening or
intimidatory behaviour, without any particularity supplied, or
perpetrator identified. All of this is denied by the Respondents.
9 Ex parte Consolidated Fine Spinners and Weavers Ltd (1987) 8 ILJ 97
(D); Mondi paper (A division of Mondi Ltd) v PPWAWU & others (1997)
18 ILJ 84 (D); Great North Transport (Pty) Ltd v TGWU & another
[1998] 6 BLLR 598 (LC) at paras [21-29]; Polyoak (Pty) Ltd v Chemical
Workers Industrial Union & others (1999) 20 ILJ 1991 (2) SA 630 (C) at
634 .
7
[24] The Applicant’s case in this regard is purely speculative, based largely
on hearsay and similar fact evidence; and largely made out in reply.
This is the type of evidence that is criticised in Polyaok 1 0: “In the
absence of evidence identifying the respondent as a prospective
perpetrator or accomplice in the acts of a perpetrator … he or she
cannot be interdicted, and it matters not that the person is one of a
group of strikers containing malefactors or that his or her interests as a
striker happen to be promoted by the wrongdoing in question. Our law
knows no concept of collective guilt.”
[25] Strike action in compliance with the Act is protected. Actions of
vandalism, violence, intimidation and damage to property are not. In
terms of s 67(8) of the Act, the protection conferred by subsections (2)
and (6) of s 67 do not apply to any act in contemplation or furtherance
of a strike, if that act is an offence. Nevertheless, an Applicant wishing
to interdict such behaviour has to make out a proper case on the
papers. Although some latitude is permissible in applications for
interim relief on an urgent basis, the requirements for final relief should
be met if and when final relief is sought on the return day.
[26] In the present case, the Applicant has failed to fulfil the requirements
for final relief.
[27] The rule nisi is discharged with costs, including the costs of 6
September 2005.
Steenkamp, AJ
Acting Judge of the Labour Court
Date of judgment: 19 December 2005
For Applicant: G van der Westhuizen of Macrobert Inc, Pretoria
For Respondents: Adv M Euijen instructed by Cheadle, Thompson & Haysom,
Johannesburg
10 Supra at 396A