Bidvest Services (Pty) Ltd v NUMSA and Others (J309/17) [2017] ZALCJHB 44 (13 February 2017)
The court found that the applicant was justified in launching urgent proceedings without the required 48 hours' notice due to the respondents' late change of position regarding the strike. NUMSA, as a majority union, was not entitled to protected strike action over organisational rights demands, in line with...
Source-derived case information.
- Citation
- [2017] ZALCJHB 44
- Parties
- Applicant: Bidvest Services (Pty) Ltd; Respondent: NUMSA; Respondent: The individuals listed in Annexure 'X' to the Notice of Application
- Court
- Labour Court Johannesburg
- Jurisdiction
- South Africa
- Case Number
- J309/17
- Procedural Posture
- Urgent Application / Interim Interdict
- Outcome
- Interim interdict granted; respondents ordered to show cause why the strike should not be declared unprotected and interdicted pending arbitration.
- Judges
- Lagrange
- Legal Topics
- Organisational Rights, Protected Strike, Urgent Interdict, Majority Union, Condonation of Notice
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Bidvest Services (Pty) Ltd
Applicant
NUMSA
Respondent
The individuals listed in Annexure 'X' to the Notice of Application
Respondent
Procedural Posture
Urgent Application / Interim Interdict
Legal Issues
- 1 Whether the applicant is entitled to urgent relief despite not giving 48 hours' notice as required by section 68(2) of the LRA.
- 2 Whether NUMSA, as a majority union, is entitled to embark on protected strike action over organisational rights demands.
- 3 Whether the applicant has established a clear right to the relief sought and whether the respondents will be unduly prejudiced by the interim interdict.
Ratio Decidendi
The court found that the applicant was justified in launching urgent proceedings without the required 48 hours' notice due to the respondents' late change of position regarding the strike. NUMSA, as a majority union, was not entitled to protected strike action over organisational rights demands, in line with Constitutional Court authority. The applicant established a clear right to the relief sought, and the balance of prejudice favoured the applicant, as the respondents would not be unduly prejudiced if ultimately entitled to strike, whereas the applicant would suffer greater prejudice if the strike proceeded unlawfully. Accordingly, interim relief was granted, interdicting the strike...
Court Disposition
Interim interdict granted; respondents ordered to show cause why the strike should not be declared unprotected and interdicted pending arbitration.
Orders
- The Labour Court Rules relating to time and manner of service are dispensed with and the matter is dealt with as one of urgency; the applicant's failure to give 48 hours' notice is condoned.
- Respondents are called upon to show cause on 10 March 2017 why an order should not be made declaring the threatened strike unprotected and interdicting participation pending arbitration.
Full Case Text
Judgment text and source record
33 paragraphs
Not reportable
THE LABOUR COURT OF SOUTH AFRICA,
HELD AT JOHANNESBURG
Case no: J 309/17
In the matter between:
BIDVEST SERVICES (PTY) LTD Applicant and NUMSA First Respondent THE INDIVIDUALS LISTED IN ANNEXURE “X” TO THE NOTICE OF APPLICATION Second and further Respondents
Heard: 13 February 2017
Delivered: 13 February 2017
JUDGMENT (EX TEMPORE)
LAGRANGE J
Introduction
[1] Having considered the matter and having heard the applicant’s counsel, I am satisfied that on the papers before me:
1.1 The applicant is justified in launching proceedings less that 48 hours’ notice as required by section 68(2) of the labour relations act, 66 of 1995 (‘the LRA’) in view of the first respondent initially indicating it might be amenable to postponing the strike pending arbitration proceedings requested by the applicant, but then reverted late on 10 February 2017 to say the strike would proceed today.
1.2 On the face of it, the first respondent is asserting its claim to organisational rights based on having majority membership at the workplace. As such, it is not entitled to embark on protected strike action over organisational rights demands, which is an election available only to minority unions since the Constitutional Court’s decision in NUMSA v Bader Bop (Pty) Ltd & another [2002] ZACC 30; [2003] 2 BLLR 103 [CC] at 122 para [43]. See also National Transport Movement & others, Transnet SOC Ltd v (2014) 35 ILJ 1418 (LC) at 1423 para [14].
1.3 In the circumstances, I am satisfied the applicant has established a clear right that open to some doubt to the relief sought. Further, the respondents will not be unduly prejudiced if they are ultimately entitled to strike over their demands, as compared to the prejudice that the applicant will suffer if they are not entitled to strike, but are allowed to do so pending a final determination of the issue.
Order
In light of the above, an order is made in the following terms:
[2] The Labour Court Rules relating to the time and manner of service of applications are dispensed with and the matter is dealt with as one of urgency in terms of Rule 8 and the applicant’s failure to give 48 hours’ notice of this application is condoned.
[3] The respondents are called upon to show cause on 10 March 2017 why an order should not be made in the following terms:
3.1 Declaring the strike threatened by the first respondent to commence on 13 February 2016 (‘the strike’) to be unprotected.
3.2 Pending the outcome of the CCMA arbitration under case number LP 7000-16 the respondents are interdicted restrained from promoting, encouraging, supporting, participating in or otherwise furthering the strike.
3.3 Ordering the respondents, jointly and severally, to pay the costs of this application.
[4] It is ordered that the orders in paragraphs 3.1 and 3.2 above shall operate with immediate effect pending the final determination of this matter on 10 March 2017.
[5] Service must be effected on the first respondent by fax and, if possible, by email. Service on the second and further individual respondents must be effected, as far as possible, by the distribution of copies of the order and SMS notifications to them.
_______________________
Lagrange J
Judge of the Labour Court of South Africa
APPEARANCES
APPLICANT:
W Hutchinson instructed by
Moodie & Robertson
RESPONDENTS:
No appearance