Bothaville Milling (Pty) Ltd t/a Thuso Mills v National Emancipated & Allied Workers Union of South Africa ("NEAWUSA") and Others (2657/2021) [2021] ZAFSHC 232 (5 October 2021)

IN THE HIGH COURT OF SOUTH AFRICA

FREE STATE DIVISION, BLOEMFONTEIN

Case no: 2657/2021

In the matter between:

BOTHAVILLE MILLING(PTY)LTD

t/a THUSO MILLS

Applicant

and

NATIONAL EMANCIPATED & ALLIED First Respondent

WORKERS UNION OF SOUTH AFRICA

(“NEAWUSA”)

T LENEPA N.O. Second Respondent

MOHAU ISAAC LENGOLA Third Respondent

MOHLOLO BENJAMIN SETABELA N.O. Fourth Respondent

ALL EMPLOYEES OF APPLICANT PRESENTLY

INVOLVED IN INDUSTRIAL ACTION Fifth Respondent

CORAM: C L PAGE AJ

HEARD ON: 02 SEPTEMBER 2021

DELIVERED ON: 05 OCTOBER 2021.

[1] On 10 June 2021 the Applicant launched an urgent application for an order interdicting and restraining the Respondents, during protest or strike action, from committing unlawful conduct which constitutes a criminal act or violation of fundamental rights of individuals in the form of damage to property and assault in respect of the Applicant, its management, third persons including visitors, suppliers, invitees, permanent and temporary employees.

[2] The aforesaid relief was granted by the Honourable Van Zyl J by way of a rule nisi and the Applicant now seeks confirmation of the order.

[3] The Respondents are opposing the confirmation of the rule nisi.

THE JURISDICTION OF THE HIGH COURT

[4] There is an existing labour dispute and a seemingly pending industrial action proceeding between the parties as can be gleaned from the papers. The dispute and/or industrial action proceedings relate to the validity of a strike action and a protected lock-out and is dealt with by the parties in some detail. This issue between the parties forms the backdrop against which these proceedings are before this court.

[5] Having regard to what is set out in the founding papers of the Applicant, it is clear that its case is purely based on the averred criminal conduct and conduct violating fundamental rights during and in the course of the industrial action between the parties.

[6] The Applicant is not seeking an order prohibiting a strike or validating the industrial action proceedings.

[7] Section 68 (1)(a) of the Labour Relations Act 65 of 1995, (LRA), provides that the Labour Court has exclusive jurisdiction “to grant an interdict or order to restrain any person from participating in a strike or any conduct in contemplation or in furtherance of a strike”.

[8] The Respondent contends that the issue in dispute between the parties relates to or arose from employment and labour issues and as such they invoke the jurisdiction provision in Section 157(2)(b) of the LRA.

[9] I quote the relevant part of Section 157 of the LRA below:

“157. Jurisdiction of Labour Court

(1) Subject to the Constitution and section 173, and except where this Act provides otherwise, the Labour Court has exclusive jurisdiction in respect of all matters that elsewhere in terms of this Act or in terms of any other law are to be determined by the Labour Court.

(2) The Labour Court has concurrent jurisdiction with the High Court in respect of any alleged or threatened violation of any fundamental right entrenched in Chapter 2 of the Constitution of the Republic of South Africa, 1996, and arising from—

(a) employment and from labour relations;

(b) any dispute over the constitutionality of any executive or administrative act or conduct, or any threatened executive or administrative act or conduct, by the State in its capacity as an employer;”

[10] The section, in no uncertain terms, states that the Labour Court has exclusive jurisdiction in respect of all matters governed by the LRA. It further, clearly confirms that the Labour Court and the High Court has concurrent jurisdiction in respect of any alleged or threatened violation of any fundamental right.

[11] The Respondent contends that, according to the pleaded facts of the Applicant, it should be clear that the Applicant had not been in receipt of any notice from the First Respondent in terms of S 64(1)(b) and that when the Applicant issued a lock out, it was not in response to an unprotected strike or any conduct envisaged in section 68(1) in which case the Labour Court has exclusive jurisdiction. It is argued that the High Court would therefore not be competent to entertain this application.

[12] The relevant portion of Section 68 of the LRA is quoted here below:

“68. Strike or lock-out not in compliance with this Act

(1) In the case of any strike or lock-out, or any conduct in contemplation or in furtherance of a strike or lock-out, that does not comply with the provisions of this Chapter, the Labour Court has exclusive jurisdiction—

(a) to grant an interdict or order to restrain—

(i) any person from participating in a strike or any conduct in contemplation or in furtherance of a strike; or

(ii) any person from participating in a lock-out or any conduct in contemplation or in furtherance of a lock-out; “

[13] As mentioned above, the parties have dealt with their existing labour dispute in some detail but what remains clear from the Applicant’s papers is that it does not require this court to decide on the granting of an interdict preventing persons from participating in a strike or the validity of a lock-out. The Respondent unfortunately seems to understand the Applicant’s case to be within the context of S 68, in which case the Labour Court would have exclusive jurisdiction. This is not a correct perception of the Applicant’s case.

[14] The High Court, has concurrent jurisdiction with the Labour Court in the circumstances of this case as provided for in S 157.

[15] I confirm that the point in limine therefore does not succeed.

THE APPLICANT’S CASE

[16] Mr Arnold Philip Steyn, the managing director of the Applicant, in his founding affidavit, avers that members of the First Respondent conducted protesting actions which were aimed at interrupting and interfering with the normal operations of the Applicant’s business on 4 June 2021. He avers that he was intimidated and not allowed by the said members to enter the business premisses. The said members were carrying pangas, sticks and other weapons. He subsequently gained access to the business premisses with the assistance of the SAPS.

[17] According to him, the conduct of the employees took place outside of the designated areas and contrary to the picketing rules. A letter (“FA6”) was addressed to the First Respondent to ensure that the conduct of the Respondents was in accordance with the picketing rules.

[18] The Applicant resorted to employ temporary labourers from outside the municipal area of Bothaville. Transport had been arranged for the said temporary workers in private taxis on 9 June 2021. It is averred that the Respondents confronted and stopped a taxi with the temporary employees in it at the Engen garage in Bothaville. Screenshots (“FA 8(1)” to FA 8(3)”) are attached to the founding papers depicting the incident.

[19] Mr Gert Bleeker, an employee of the Applicant, confirms that he witnessed the incident at the Engen garage in Bothaville on the morning of 9 June 2021. He states that he took note of various members of the Fifth Respondent stoning, and causing damage to a private taxi transporting temporary employees. He avers that bodily harm was done to some of the temporary employees.

[20] In the process, as averred, the window of a taxi was damaged as depicted in a photograph attached to the founding papers (FA10). A picture (FA 11) is attached depicting an injury of the hand purported to be that of one of the temporary employees.

[21] Mr. Steyn further states in his affidavit that after the South African Police dispersed the group of members on 9 June 2021, the employees continued to gather in the vicinity, burning tyres and objects causing damage to the streets. Photographs are attached to the founding affidavit depicting the incident.

[22] Vehicular access to the Applicant’s place of business was hindered due to the above conduct and individuals were intimidated according to Mr. Steyn.

[23] In support of the existence of the industrial dispute various annexures are attached to the replying affidavit of Mr Steyn. These are letters dealing with the labour dispute and ultimatums by the employer. Mr Gert Bleeker confirms the contents of the replying affidavit.

[24] A list of members arrested by the SAPS is attached and confirmed in the affidavit by Mr. T Niewoudt to be information obtained from the court docket.

THE RESPONDENT’S CASE

[25] Mr Tsiliso Lenepa, in answer to the founding affidavit, denies every allegation made by the Applicant. He states that the Applicant pleads untruthful fact. It is denied that the employees who were locked out were involved in unlawful acts. The Applicant, according to him, created acts which would fit into S 157(2) of the LRA and as such amounts to a serious misrepresentation of fact.

[26] According to him, the members of the First Respondent were locked out by the Applicant on 4 June 2021 and remained outside waiting to be called in to work as they were locked out unlawfully. Employees presented themselves for work everyday and nothing was wrong in that.

[27] The pictures taken are disputed to be a true reflection and were used to fabricate and misrepresent the true status of affairs which was that members were “peacefully waiting to be called back to work as they were advised that the lock-out was unlawful. He states further that the police was called by the Applicant for no apparent reason and was an abuse of state resources.

EVALUATION

[28] The Respondents deny the validity of the industrial actions as is mentioned supra. It is noteworthy that the Respondents do not deal with the specific allegations in detail. The Respondents present no more than a bare denial of the averments by the Applicant.

[29] The Applicant has attached various documentary proof in the form of photographs of the averred unlawful conduct, letters addressed to employees which supports the averments of an industrial action. The founding papers are supported by confirmatory affidavits of the relevant persons referred to in the founding affidavit.

[30] The Respondent alleges misrepresentation of the facts, fabrication of facts and avers that the members were peaceful. Certainly, the Respondent may have given substance to its case. The First Respondent deny any strike action and avers that the lock-down just happened and was unlawful preventing the Respondents from entering the work premisses. These averments are made in the answering affidavit of the First Respondent without any confirmation whatsoever. The First Respondent has not presented any substantive facts which places the Applicants case genuinely in dispute.

[31] In motion proceedings the trite Plascon Evans test should be applied where disputes of fact have arisen on affidavits. An interdict may be granted if the facts averred in the applicant’s affidavit, which have been admitted by the respondent together with the facts alleged by the respondent justifies such an order. The exception to the general rule is where allegations or denials of the respondent are so far-fetched or clearly untenable that the Court is justified in rejecting them merely on the papers.

[32] In John Cecil Wightman t/a JW Construction v Head/our Pty Ltd & Another (66/2007) [2008] ZASCA 6 (10 March 2008) the following was held:

“A real, genuine and bona fide dispute of fact can exist only where the court is satisfied that the party who purports to raise the dispute has in his affidavit seriously and unambiguously addressed the fact said to be disputed. There will of course be instances where a bare denial meets the requirement because there is no other way open to the disputing party and nothing more can therefore be expected of him. But even that may not be sufficient if the fact averred lies purely within the knowledge of the averring party and no basis is laid for disputing the veracity of accuracy of the averment. When the facts averred are such that the disputing party must necessarily possess knowledge of them and be able to provide an answer (or countervailing evidence) if they be not true or accurate but, instead of doing so, rests his case on a bare or ambiguous denial the court will generally have difficulty in finding that the test is satisfied.”

[33] The Respondent’s version on the papers are improbable and implausible and it has not raised a genuine and bona fide material dispute of fact related to the conduct, which is sought to be interdicted, namely assault and malicious damage to property, intimidation and the violation of fundamental rights of individuals.

[34] The Applicant’s version prevails, and the Respondents version is rejected.

[35] It is trite that the requirements for the granting of a final interdict are a clear right, an injury committed or reasonably apprehended and no other suitable remedy.

[36] The Applicant has a clear right to ensure a safe working environment and workplace for employees, service providers and to operate its business without interference. The Respondents as proven on the papers have been involved in the conduct averred by the Applicant. The said conduct clearly caused harm to the Applicant and remains an apprehension of harm which may be committed in the future. The Applicant has no suitable alternative remedy.

[37] I make the following order:

1. The Rule Nisi is confirmed with costs including the reserved costs of 29 July 2021.

C L PAGE AJ

For the Applicant: Adv MC Louw

Instructed by: SYMINGTON & DE KOK ATTORNEYS

SYMINGTON & DE KOK BUILDING

169B NELSON MANDELA DRIVE

WESTEDENE

BLOEMFONTEIN

For the Respondents: Adv Mashilo Shadrack Sebola

Instructed by: SEBOLA NCHUPETSANG SEBOLA INC

C/O SMLOZANA ATTORNEYS

SUITE NO B Property Park

60 Kellner Street, Westedene

BLOEMFONTEIN.