Absa Bank Limited v South African Clothing & Textile Workers Union and Others (3226/2014) [2014] ZAKZDHC 13 (11 April 2014)

IN THE HIGH COURT OF SOUTH AFRICA,

KWAZULU-NATAL LOCAL DIVISION,

DURBAN

CASE NO: 3226/2014

In the matter of:

ABSA Bank Limited....................................................................................................Applicant

and

South African Clothing &

Textile Workers Union.....................................................................................First Respondent

Themba Khumalo........................................................................................Second Respondent

Beauty Zibula.................................................................................................Third Respondent

Suzan Khumalo............................................................................................ Fourth Respondent

Freda Oosthuysen........................................................................................... Fifth Respondent

Andre Kriel.....................................................................................................Sixth Respondent

Chris Gina..................................................................................................Seventh Respondent

Lawrence Xola.............................................................................................Eighth Respondent

Christopher Soetsane................................................................................... Ninth Respondent

JUDGMENT

LOPES J

[1] The applicant seeks an interim interdict, pending the outcome of an action to be instituted by it, seeking to interdict and restrain

various parties from exercising their right to demonstrate in an unlawful manner.

[2] The history of the matter may be summarised as follows:-

a) on the 26th of February, 2014 the first respondent, the South African Clothing and Textile Workers Union (“SACTWU”) addressed a letter to the applicant, ABSA Bank (“ABSA”) requesting it to receive a memorandum from SACTWU at ABSA’s premises at 291 Smith Street, Durban at 11.00am on the 8th of March 2014;

b) members of the first respondent started gathering outside the premises of the ABSA Branch in Anton Lembede Street, Durban at approximately 9:16am on the morning of Saturday the 8th of March 2014;

c) approximately two hundred to three hundred people participated in the protest, carrying banners and singing and becoming increasingly restless and agitated. As they had arrived an hour and three quarters earlier than anticipated, there was no representative of ABSA on hand to receive their memorandum;

d) at approximately 9:30am a manager of ABSA made the decision to close the doors of the branch because it became clear that the crowd of protestors wanted to enter the branch. Some of the crowd were leaning against the windows of the branch, holding placards and shouting abusive slogans about the senior management of ABSA;

e) the protestors took over the entire ATM area, threw garbage bags into the area, placed various placards on and around the windows of the ABSA branch, and around the premises, and poured beer onto the ABSA ATM machines;

f) at approximately 10:45 am and once the memorandum had been read out the protestors dispersed under the instruction of the members of the South African Police Services;

g) customers of ABSA who had been trapped inside the branch, effectively having been held hostage by the protestors for approximately an hour and a quarter, then left;

h) several staff members were required to receive counselling, owing to the fear and stress which they experienced during the incident;

i) the unhappiness of the protestors allegedly arose from the fact that provident fund contributions in an entity referred to as Pinnacle

Point Group were lost in an envisaged investment. The protestors alleged that this was as a consequence of the conduct of ABSA staff members. The merits of this dispute are by no means clear from the papers, and it is neither necessary, nor desirable, for me to comment any further on it. It is sufficient to record that this dispute, whatever its merits, was the source of the protest and the agitation of the protestors;

j) after the incident, and on the 12th of March 2014, the applicants attorneys wrote to SACTWU demanding an unequivocal undertaking from SACTWU not again to engage in the unlawful conduct complained of in their letter;

k) on the same day the attorney for SACTWU replied, recording that SACTWU did not condone any form of unlawful conduct and would investigate the allegations made by ABSA. The letter claimed that SACTWU was unaware of any damage to ABSA’s premises and requested particularity thereof. Significantly the letter then recorded that SACTWU gave an undertaking that it does not sanction, condone or support any form of unlawful action, and that it would continue to impress that upon its members, as well as the importance of acting within the parameters of protected protest action;

l) unhappy that it had not received the undertaking which it viewed should have been given, ABSA’s attorneys wrote back to SACTWU’s attorney on the same day suggesting that the undertaking given was ‘empty’ because no steps had been taken to prevent the unlawful conduct at the demonstration. Reference was also made to the fact that SACTWU, represented by one Vilina Mebinkosi, publically announced on that day that if ABSA did not respond to the memorandum handed to it by the SACTWU members, they would march at all of ABSA’s branches and bring its operations to a standstill. This letter closed by once again seeking an unequivocal undertaking that neither SACTWU nor its members would again engage in the unlawful conduct of which ABSA complained ;

m) on the 13th of March 2014 SACTWU’s attorney replied, recording the right of its client’s members to engage in protected protest action. The letter complains of the fact that ABSA has not given particularity of the damage and the ‘abuse’ to which reference is made;

n) on the 13th of March 2014, a letter was also addressed by the applicant directly to SACTWU regarding the subject matter of the memorandum.

[3] Officials of ABSA and its attorney were unhappy because, as they perceived it, SACTWU had not given the undertakings sought. They accordingly issued this application.

[4] The requirements for an interim interdict are:

(a) a clear right, alternatively a prima facie right though open to some doubt;

(b) a well grounded apprehension of irreparable harm;

(c) that the balance of convenience favours the applicant;

(d) the absence of an adequate ordinary remedy;

(see: Olympic Passenger Service (Pty) Ltd v Ramlagan 1957 (2) SA 282 (D) at 383A-G ; Setlogelo v Setlogelo 1914 AD 221 at 227 ).

[5] It is necessary at this stage to say something about the nature and form of the relief sought. ABSA has cited SACTWU and eight of its office bearers. Paragraph 7 of ABSA’s founding affidavit records:

‘The remaining respondents are office bearers of the first respondent who are cited herein as a precaution to ensure that all relevant persons in the first respondent have knowledge of this application and of the order.’

[6] It is important to note that nowhere in the application papers is the allegation made that the office bearers were party to any unlawful conduct, or indeed, were even present at the demonstration. In ABSA’s notice of motion it simply sought interdictory relief against ‘the respondents' without differentiating or distinguishing between them. The relief sought included interdicting and restraining ‘the respondents’ from being physically within a hundred and fifty metres of any of the applicants premises, whether marching, gathering, protesting, demonstrating, or otherwise grouping together. Further relief was sought interdicting and restraining them from committing unlawful acts.

[7] Mr Schumann, who appeared for the respondents, submitted that an interdict against all the members of SACTWU would be inappropriate, as none of the cited respondents were alleged to have been present or behaved unlawfully, and no members of SACTWU were individually identified as having behaved unlawfully. Mr Schumann also submitted that as the first respondent is a body corporate, it made no sense to seek to interdict the body corporate from coming within a hundred and fifty metres of ABSA’s premises in Durban. Mr Schumann submitted that because SACTWU was a statutory legal entity, if AB 3A wanted to interdict its officials it had to do so by citing them individually in the application and having a legal basis for interdicting them.

[8] Mr Schumann also submitted that the applicant was not entitled to any relief because SACTWU, via its attorney, had given the only

undertaking which it could have been reasonably asked to give - i.e. that SACTWU does not sanction, condone or support unlawful action and that it would continue to impress upon its members the importance of acting within the protest parameters of protected protest action. Mr Schumann also drew attention to the letter from SACTWU’s attorney of the 20th of March 2014, in which it was recorded that no further protest action was envisaged by its client against ABSA because it had

received a response to the memorandum which had been presented at the ABSA branch on the 8th of March, 2014. Mr Schumann submitted that in the circumstances ABSA had not demonstrated the requirement of irreparable harm as one of the requirements of an interim interdict, and if it was appropriate for any order to be granted against the first respondent, it should only be an order interdicting and restraining the members of the respondent from behaving unlawfully.

[9] Mr Smither’s SC, who appeared for the applicant together with Mr Boulle, submitted that ABSA had a reasonable apprehension that members of SACTWU would again behave in an unlawful manner. He submitted that in any event, in view of the clear right of ABSA and its clients not to be subjected to unlawful action, the question of irreparable harm did not form one of the essential requirements for the interim interdict.

[10] Mr Smithers referred to the dicta of Eksteen J in Edrei Investments 9 Ltd (in liquidation) v Dis-Chem Pharmacies (Pty) Ltd 2012 (2) SA 553 (ECP) at 557 C-E as follows:

‘It is generally accepted that a well-grounded apprehension of irreparable harm, in the sense set out above, is a requirement for the grant of an interim interdict. It is, however, well established that where the applicant has established a clear right, as opposed to a prima facie right open to some doubt, this requisite is dispensed with....’

[11] Mr Smithers submitted that this dispensed with the requirement of demonstrating irreparable harm, because, in the circumstances of this matter, where the allegations of unlawful conduct on the part of the members of SACTWU is not disputed, ABSA has a clear right to be protected against such conduct. I agree with this submission.

[12] With regard to the submission that SACTWU had given an undertaking in the correspondence, and that it was one with which ABSA should have been be satisfied, Mr Smithers drew my attention to the cases dealing with circumstances where an applicant was entitled not to be satisfied with an undertaking given, and to persist in seeking an interdict, (see: Appleton and Another v Harnischfeger Corporation and Another [1994] ZASCA 141; 1995 (2) SA 247 (A) at 263 B-G and Mcilongo N O v Minister of Law and Order and Others 1990 (4) SA 181 (ECD) at 186 B-l).

[13] Mr Smithers submitted that the submission that an interdict against SACTWU would breach the constitutional rights of its members

enshrined in s 17 of the Constitution, overlooks the fact that in this case the demonstration did not proceed in a peaceful manner. In South African Transport and Allied Workers Union v Garvis and others 2011 [ 4 ] ALL SA 475 at 488, paragraph 50, this was dealt with by Navsa JA as follows :

The chilling effect of section 11 (2)(b) described on behalf of the Union is not only unsubstantiated b jt is contradicted by the police and the City of Cape Town, who presented unchallenged evidence that in their extensive experience the provisions of the Act have not deterred people from public assembly and protest. If anything, the regularity of public assembly and protest in the 15 years of the existence of the Act proves the contrary. The chilling effect that the provisions of the Act should rightly have is on unlawful behaviour that threatens the fabric of civilised society and which undermines the rule of law. In the past, the majority of the population was subjected to the tyranny of the state. We cannot now be subjected to the tyranny of the mob.’

[14] In my view ABSA has made out a case for an interdict against those persons who were present at the protest under the organisation and guidance of SACTWU. As there was no evidence on the papers that the second to ninth respondents were in any way involved, I do not believe th?:í it would be appropriate to grant any relief against them.

[15] It is possible that there were members of the protest group who were not members of SACTWU. Clearly no order can deal with such persons. However, as the march was organised by SACTWU and it is not disputed that a large number (between two hundred and three hundred) of its members were present, which is also evidenced by the fact that the memorandum handed over to the ABSA representative was presented on behalf of SACTWU and its members, it would be appropriate to grant relief against them. Unfortunately they are not identifiable from the papers.

[16] South African Transport and Allied Workers Union, which concerned an interpretation of Section 11 (2) of the Regulation of Gatherings Act, 1993 was upheld by the Constitutional Court (see: SATAWU and another v Garvas and others 20 13 (1) SA 83 (CC)). In my view, if the organizers of a demonstration may be held liable for damage caused during a gathering of its members, then it must follow that, in an appropriate case, an interdict may be sought against the organisation from causing such damage.

[17] ABSA has a clear right to be protected against the sort of conduct which occurred on the 8th of March, 2014, and the balance of convenience is undoubtedly in its favour. With regard to the absence of an adequate ordinary remedy, whilst ABSA would be able to sue SACTWU for physical damage caused to its premises, the damage which was caused to its reputation as a company as a result of the intimidation of its customers, is not something which is easily quantifiable. The customers may be reluctant to continue to be customers of ABSA, fearing future violence. ABSA has no remedy for these damages.

[18] With regard to a well-grounded apprehension of irreparable harm, the fear of ABSA that behaviour such as occurred on the 8th of March 2014 may well be repeated is a reasonable one. Given the tender of the undertaking given by SACTWU, the clear right established in favour of ABSA to be protected against unlawful conduct, overrides any consideration of the acceptance of that undertaking as a bar to ABSA being granted relief.

[19] The remaining issue to be determined is the conflict between the right of the members of SACTWU to protest, and the right of ABSA to have its assets protected. The desirability of a court issuing an order interdicting persons who are not guilty of any unlawful conduct has been the subject matter of some debate. In Consolidated Fine Spinners and Weavers Ltd and another, ex parte in re Consolidated Fine Spinners and Weavers Ltd and another v Govender and others (1987) 8 ILJ 97 (D) at page 98-99, Page J, with regard to an interim interdict to restrain 795 employees from unlawful action, stated:

‘In my view the inability of the applicants to identify the perpetrators does not afford any justification in law for granting an order against a number of people including persons against whom no cause of action has been established. The practical exigencies of the situation which have been eloquently and persuasively described by counsel for the applicants also do not afford a justification for such a course, however desirable it may appear to be.

I accept that it is indeed desirable for purposes of maintaining order and restoring proper labour relations that the courts should be able to intervene, but this cannot in itself justify the court in arrogating a power which it does not have in law. I do not think that it is, as was contended by counsel for the applicants, a discretionary matter at all. Either there is a cause of action or there is not.

Mr Wallis for the applicants has asked me to consider the respondents as a group whose group conduct is sought to be restrained and submitted, on that basis, that the fact that there may be individual members who had not perpetrated the acts complained of does not warrant a refusal of relief. I do not think, however, that the evidence before me is sufficient to establish membership of a group in the sense contended for. The only fact which is common to all the respondents is that the / stayed away from work yesterday. The tender, to which I have referred, not to pioceed further against any person who can be identified as innocent prior to the return date, is also in my view no answer to the problem. There is no justification for making an order against a person without proof of his complicity and then requiring him to establish his innocence.

I have been referred in the course of argument to a matter in which my brother Howard, in a similar application, granted relief which I am told actually went further than that sought in the present case. I do not know if the difficulty which concerns me in this case was argued before him, but I can only say with the greatest respect that if the order included in its ambit persons against whom no cause of action was made out, then I am of the view that it was pro tanto incorrectly granted.’

[20] I was also referred to the judgment of Nicolson J in Mondi Paper ( a Division of Mondi Ltd) v Paper Printing Wood & Allied Workers Union & others (1997) 18 ILJ 84 (D) at 91;

"Mr Pillemer referred the court to the case of Ex Parte Consolidated Fine Spinners & Weavers Ltd (1987) 8 ILJ 97 (D). The facts in that matter were similar to this matter. In that case an application was made for a rule nisi operating as an interim interdict restraining some 795 respondents from interfering with, assaulting or intimidating any of the applicants' employees, customers or other visitors to the applicants' factory complex at 9 Warrington Road, Mobeni, Natal; hindering or obstructing the applicants' normal operations at the said factory complex; causing any damage to any of the applicants' property at the said factory complex; entering or remaining at the said factory complex save for the purpose of carrying out their duties as employees of the applicants; or inciting any other person to commit any of the acts previously described.

The facts of that matter further revealed that the respondents were all employees of the two applicants. The founding affidavit revealed that there had been dissension between two groups of workers at these factories and that the assistance of the management had been sought by one group and that the dissension had ultimately led to the occurrence of an illegal strike. After dealing with the above facts Page J then said the following:

(the above quote by Page J is then set out)

Mr Wallis, who, as is apparent from the above quotation from the case, appeared for the applicant, has criticized Page J in his book Labour and Employment Law at 386-7 as follows:

'It is submitted that this approach is too stringent and emasculates the ability of the Supreme Court to grant relief in cases where it is clearly justified. The grant of interim relief by way of interdict does not prejudice the innocent non-participant provided the terms of the order are such as to protect that person's interests. Whe.e the applicant is clearly entitled to relief against certain persons whom it has done its best to identify it should not be denied that relief on the technical ground that certain of the people against whom an order is sought have been misjoined.'

I have made mention of the intention of the applicant to institute contempt proceedings if the contraventions of the order continue. What is clear from the interim interdict is that all the respondents on the list are interdicted from all the activities mentioned in Levinsohn J's order.A court order is the law and is the equivalent of an Act of parliament insofar as the parties defined by it are concerned. The proposed approach of Mr Wallis places the 'innocent non­participant' in jeopardy of the criminal offence of contempt of court. The criminal court would rightly assume that a Supreme Court order was properly granted and the proposed remedy that the ’innocent non-participant' would have is to prove that the original court order ought not to have been granted

against him. This reversal of the onus runs counter to every notion of criminal justice and the onus of proof.

The notion of an interim order being couched in terms which protect the 'innocent non-participant' is also a curious one. Presumably it is posited on his right to establish his innocence at some later stage. Otherwise it is difficult to conceive how an order interdicting one from engaging in a wide range of activities can be said to protect this 'innocent non-participant'. Perhaps the flaw in the argument can best be illustrated by considering an interdict directed at only one such 'innocent non-participant'. In fact I put this to Mr Winchester and asked him how he could justify any relief being granted against such an individual. Mr Winchester very fairly conceded that there was not a jot or tittle of evidence justifying an interdict against the selected individual. The same

exercise can of course be done for each person on the list of respondents which is a printout of the union members in the company.

It seemed to me that Mr Winchester was arguing that a different standard of proof was applicable in interim interdicts against employees involved in these situations. Not surprisingly no authority was cited for such a startling proposition. The evil of intimidation of employees by striking workers and the unlawful blocking of transport to company premises can never be condoned. Juxtaposed against that evil is that of a court granting orders against 'innocent non­participants' without evidence. The latter evil seems to me to outweigh the former. It seems to me that the whole court system will lose the respect of the public at large if it grants orders against 'innocent non-participants'.

The aforegoing should not be interpreted as revealing a lack of sympathy for the predicament of the employer. It seems to me, however, that the production of proper proof either directly or by circumstantial evidence is not beyond the ingenuities of employers, given the modern technology that is available. I am not satisfied that the judgment of Page J is wrong in any respect and I am consequently bound by it. The facts in that case are virtually on all fours with the facts in this case. In fact Mr Winchester ó\ó not seek to distinguish the decision in any way on the facts, or this additional reason I would have granted the order discharging the rule with costs.”

[21] The approach in the above two cases was considered by Pretorius AJ in Oconbrick

Manufacturing (Pty) Ltd v SA Building and Allied Workers Organization and others (1998) ILJ

868 (LC) where he stated:

‘[16] What was, however, strongly contended on behalf of the respondents was that the founding papers did not, apart from one isolated individual, identify any particular individual respondents as having perpetrated an act or acts of unlawful conduct. In this regard, Mr Barnard relied on the decision of Nicholson J in Mondi Paper (A Division of Mondi Ltd) v Paper Printing Wood & Allied Workers Union & others (1997) 18 ILJ 84 (D). In that judgment, Nicholson J referred with approval to the judgment of Page J, in Ex Parte Consolidated Fine Spinners & Weavers Ltd{ 1987) 8 ILJ 97 (D). The effect of the decisions of Page J and Nicholson J seems to be that an interdict ought not to be ordered against a group of striking workers in circumstances where

individuals who form part of that group make themselves guilty of conduct which is unlawful, unless and until the individual perpetrators of that conduct are identified before court. Such an interdict ought only to be granted it follows against workers so identified.

[17] It is far from clear to me that the facts of the case at present under consideration by me are comparable with the facts in the Mondi Papers and in the Consolidated Fine Spinners & Weavers cases.

[18] in the circumstances of this case, the respondents formed a cohesive group. The evidence is uncontested that the individual respondents,

acting as a group and in concert, obstructed access to the applicant's premises. These were not isolated and individual unlawful

acts, but conscious acts of striking workers acting in concert. These allegations were not denied or put in issue by any

individual striking workers. In these circumstances liability for a particular act or acts is based on factual inferences made by the trier of fact and law. There is no question of a reversal of onus. On the contrary, the onus is found to be discharged by the party alleging the necessary facts.

[19] Moreover, it is common cause on the papers that the striking workers, identified by means of photographs annexed to the respondents'

papers, are indeed the individual respondents in this matter. I am far from convinced that where a group of workers acts as a collective

unit and in so acting unlawfully causes physical and economic harm to an employer, the employer should not be entitled to interdict such harm by reference to that collective unit. It seems anomalous indeed, at least within the jurisdiction of the Labour Relations Act, to treat workers as a collective, especially where collective bargaining is concerned, and yet to retreat to an individualistic approach when it comes to facing up to the consequences of collective industrial action. However, for the reasons that follow, no more need be said in regard to the matter.

[20] ... The reasoning in the judgments of Nicholson J and Page J does not apply to an order which merely confines striking workers to a particular area within the employer’s premises. In this regard, the order does not rest for its justification on acts of misconduct, but rather on the right of the employer to control access to its premises during a strike.’

[22] In arriving at an order in this matter I take into account that this matter does not concern a labour dispute, but rather has to do with an incident of unlawful behaviour during protest action. The conduct of the members of SACTWU was unlawful and undoubtedly exceeded the bounds of acceptable protest action. That much was not disputed on the papers before me.That does not, however, grant me the authority to make an order against any innocent party, and in this regard, I consider that I am bound by the decisions of Page J and Nicholson J referred to above. I am, however, satisfied that interdictory relief may be granted against SACTWU itself, together with an order for costs.

[23] I am not persuaded that the prayer for a perimeter order is appropriate in these circumstances. If the members of SACTWU wish to protest against ABSA in the future, they clearly have a constitutionally protected right to do so, provided that they do so within the bounds of what is lawful. To restrict them to being only able to protest 150 metres from the premises of ABSA may entirely abrogate the legitimate object of their right to protest. In any event, it is likely that if their protest will result in inconvenience to those shops or businesses nearby (they will inevitably protest in the City of Durban), some other businesses will suffer the inconvenience of having their customers disturbed by the presence of a large crowd. It seems inherently unfair to impose that inconvenience on another party who is not the target of a legitimate protest.

[24] In all the circumstances I grant the following order:-

a) pending the final determination of an action to be instituted by the applicant against the first respondent for relief relating to the incident of the 8th March 2014, such action to be instituted within thirty days of the date of this order, the first respondent is interdicted and

restrained from:

(i) encouraging its members to interfere with, threaten, harass, intimidate cr in any way to interact with employees, representatives or customers of the applicant when marching, gathering, protesting, demonstrating or otherwise grouping in the vicinity of the applicant’s premises in Anton Lembede Street, Durban, or the applicant’s premises elsewhere in Durban;

(ii) encouraging or permitting its members to place placards, posters, or other signs on the applicant’s premises at Anton Lembede

Street, Durban or on the applicant’s premises elsewhere in Durban;

(iii) encouraging its members physically to damage, interfere with, or in any way come into contact with the applicant’s property, equipment or assets at its premises at Anton Lembede Street, Durban or at the applicant’s premises elsewhere in Durban, including, but not limited to, ATM systems, doors, windows, etc;

(iv) causing, directing, inciting or encouraging any of its members to contravene the provisions of the Regulation of Gatherings Act, 1993;

b) the first respondent is to pay the applicant’s costs of this application on the scale as per between attorney and client, such costs to include those consequent upon the employment of two counsel.

Date of hearing: 28th March 2014

Date of judgment: 11th April 2014

Counsel for the applicant: MDC Smithers SC (with him A Boulle), instructed by Shepstone & Wylie.

Counsel for the respondent: PN Schumann, instructed by Brett Purdon Attorneys & Labour Arbitrators.