City of Tshwane Metropolitan Municipality v The South African Municipal Workers Union (SAMWU) and Another (J334/22) [2022] ZALCJHB 192 (26 July 2022)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

CASE NO: J334/22

In the matter between:

THE CITY OF TSHWANE

METROPOLITAN MUNICIPALITY Applicant

and

THE SOUTH AFRICAN

MUNICIPAL WORKERS UNION

(SAMWU)

First Respondent

ALL

STRIKING SAMWU MEMBERS MENTIONED

IN

ANNEXURE “A”

Second Respondent

Heard: 21 July 2022.

Delivered: 26 July 2022

Summary: Return day – final order seeking to interdict “nothing”. Courts exist to resolve concrete disputes and not hypothetical and abstract issues. Where there is no strike action, this Court cannot invoke its interdictory powers.

Held: (1) The rule nisi is discharged with no order as to costs.

JUDGMENT

MOSHOANA, J

Introduction

[1] It is not the duty of a Court of law to entertain unrealistic fears and paranoia of litigants. Courts of law exist to resolve concrete

disputes and not to provide parties with legal advice. Today marks the return day for the interim order issued by Acting Justice

Mkwibiso on 24 March 2022. After an intense debate with counsel for the applicant, Mr S Radebe, the applicant abandoned confirmation of the majority of the interim orders made. What remained for confirmation was orders three[1], five[2] and six[3] of the interim order. The confirmation of those orders is duly opposed by the respondents.

Background facts

[2] Owing to the order I intend to make it shall not be necessary to give a full rendition of the facts of this application. The matter bears a litigious chronicle. Pertinent to the present application on 10 February 2022, this Court per Acting Justice Makhura confirmed order 2.1[4] of an interim order issued by my sister Prinsloo J on 22 October 2021. On the applicant’s own version, the respondents cited in that application complied with the order and a strike action ceased.

[3] Central to the labour dispute between the applicant and its two recognised trade unions; namely; SAMWU and IMATU was the full implementation of the collective agreement concluded at the South African Local Government Bargaining Council (SALGBC). On 8 March 2022, the applicant sought to be exempted from certain provisions of the collective agreement. Whilst the decision on exemption was pending, a protest action broke out on 15 March 2022. The applicant formed a view that SAMWU and its members re-initiated an unprotected strike action. For the period 17 to 22 March 2022, the applicant attempted to deal with the said protest action. On 24 March 2022, it approached this Court on an extreme urgent basis and obtained an order referred to above. At the time when the application was heard by this Court the protest action had quelled down.

Evaluation

[4] In terms of section 68 (1) of the Labour Relations Act[5] (LRA), this Court has exclusive jurisdiction to grant an interdict or order to restrain a strike or conduct in contemplation or furtherance of a strike. From the provisions of the section, it is axiomatic that the powers of the Labour Court to interdict or restrain arise only in an instance where there is a strike action or conduct in furtherance of a strike action. The applicant labelled the protest action that broke out as a strike action. The respondents squarely placed in dispute the existence of a strike action since they had no demand. In amplification of the allegation that there was an unprotected strike action, the applicant testified that the protestors (named as “illegal and unprotected strikers”) were wearing SAMWU branded regalia and held SAMWU branded flags. For a strike to exist there must be a demand. The applicant did not sufficiently dispute the allegation that there was no demand. On application of the Plascon Evans[6] principle, I conclude that there was no strike action. There is no evidence to suggest that the protest action proven by pictures

annexed to the founding papers was in furtherance of a strike action. Lack of such evidence places the exclusive jurisdiction of this Court on very shaky grounds.

[5] It is important to acknowledge that strikers – employees with a grievance – may engage in some form of protest action – in addition to withdrawal of labour – in support of their demand. The LRA in section 213 defines protest action to mean the partial or complete concerted refusal to work, or the retardation of obstruction of work, for the purposes of promoting or defending the socio-economic interests of the workers, but not for a purpose referred to in the definition of strike.

[6] Section 17 of the Constitution for the Republic of South Africa, 1996, provides that everyone has the right, peacefully and unarmed, to assemble, to demonstrate, to picket and to present petitions. Section 69 of the LRA deals with picketing by employees. The Regulation of Gatherings Act[7], regulates gatherings and make certain conducts to be offences upon which the police may act. In relation to picketing issues, the Labour Court may exercise interdictory powers once a dispute is first referred for conciliation.

[7] In the main, the order meriting consideration in this judgment is order 3 since orders 5 and 6 only exist to put into execution the order if confirmed. The nub of order 3 is the performing of acts of destruction of property, acts of intimidation or harassment and violence. Conspicuously absent is that the respondents performed those acts in furtherance of a strike action. One of the respondents cited in this matter is SAMWU – a legal persona. Radebe conceded that SAMWU is incapable of destroying property, to intimidate, to harass or act violently. When it comes to the

individual respondents cited in the present application, what the applicant did was to attach a voluminous list, which includes

thousands of employees alleged to be members of SAMWU. Approximately 185 pages of the list was annexed as Annexure “A”. This is an inappropriate practice. For all we know, some of the listed employees may have been on leave or even nowhere near the scene where the exhibited pictures were taken.

[8] The Constitutional Court in Commercial Stevedoring Agricultural and Allied Workers Union and others v Oak Valley Estates (Pty) Ltd and Another[8] aptly restated the law on interdicts to be:

“[19] …Thus, for an interdict to be granted, it must be shown, on the balance of probabilities (taking into account the Plascon-Evans rule, where a final relief is sought on motion), that unless restrained by an interdict, the respondent will continue committing an injury against the applicant or that it is reasonably apprehended that the respondent will cause such an injury.”

[9] The evidence before me does not remotely suggest any reasonable apprehension of injury. During the submissions, Radebe had placed it no higher than speculation. It was suggested to him by this Court that what he submits is akin to a perpetual silence order[9]. Employers cannot obtain interdictory reliefs to secure them perpetually as it were against a strike action. It ought to be remembered that a strike action is constitutionally guaranteed. The only time this Court may gag a strike action is if the action does not comply with the LRA. Thus, there is nothing like an illegal or unlawful strike. There is only an unprotected strike action. Radebe

submitted that the fear of the applicant is that the SAMWU members may engage in a strike action whilst its review application is pending. Unfortunately, the powers of this Court may only be invoked if (a) there is a strike action or planned strike action; (b) the strike action is unprotected; (c) there is conduct in furtherance of an unprotected strike action. The order of 22 October 2021 achieved the ending of a strike action. As indicated earlier, Courts do not exist to deal with over-suspicious or paranoiac litigants. Courts deal with concrete disputes. What emerged on 15 March 2022 does not, on the undisputed evidence of lack of demand, amount to a strike action. The test for reasonable apprehension of injury is an objective one[10].

[10] In rejecting the view of the LAC, Theron J who penned the Oak Valley judgment on behalf of the majority had this to say:

“[22] This, however fails to answer the question regarding the innocent bystanders. A person is interdicted from engaging in unlawful conduct because the applicant has a reasonable apprehension that she will act unlawfully if not placed under interdict. This reasonable apprehension is based on a finding that the respondent has either acted unlawfully or threatens to act unlawfully. The innocent bystander thus suffers prejudice regardless of whether she subsequently escapes conviction in a contempt application. The prejudice lies in the imputation that she has acted unlawfully or threatened to act unlawfully…”[11]

[11] By confirming the order in question, this Court shall be imputing that SAMWU and all the listed members acted unlawfully as alleged or threatened to act unlawfully. There is simply no evidence to establish a link between the alleged unlawful acts and the respondents before me. Again Theron J stated the following:

“[20] Plainly, if the evidence is insufficient to establish any link between the respondent and the actual or threatened injury, the apprehension of injury cannot be reasonable. Put differently, it follows that there must be some link between the respondent and the alleged actual or threatened injury…”[12]

[12] In the final analysis, this being a final interdictory relief, this Court is not satisfied that the order must be made final. Accordingly, the interim order must be discharged. Since this Court is not inclined to make order three final, orders five and six automatically fall away.

[13] In the result the following order is made:

Order

1. The rule nisi issued on 24 March 2022 is discharged in its entirety.

2. There is no order as to costs.

G. N. Moshoana

Judge of the Labour Court of South Africa

Appearances:

For the Applicant:

Mr S B Radebe

Instructed by:

Lawtons Africa Inc, Sandton

For the Respondents:

Ms G Phakedi of Phakedi Attorneys, Randburg.

[1] The Respondents are interdicted and restrained from performing any act of destruction of the City of Tshwane’s property and any private or public property or from performing acts of intimidation or harassment or violence on any of the Applicant’s employees and/or the Applicant’s patrons.

[2] That the South African Police Services and/or its Community Policing Unit (City of Tshwane Metropolitan Municipality) is ordered to ensure compliance with this Court order and the order of this Court dated 10 February 2022.

[3] That the Sheriff of Court (Pretoria) is authorised and directed, and insofar as he or she may require the assistance of a law enforcement authority, such law enforcement authority, is authorised and directed to ensure that individual respondents comply with the terms of this order.

[4] Declaring the strike action embarked upon by the Respondents on 22 October 2021 unlawful and unprotected.

[5] No. 66 of 1995, as amended.

[6] See: Plascon-Evans Paints (TVL) Ltd. v Van Riebeck Paints (Pty) Ltd. [1984] ZASCA 51; [1984] 2 All SA 366 (A).

[7] Act 205 of 1993.

[8] [2022] 6 BLLR 487 (CC) at para 19.

[9] See Garber NO v Witwatersrand Jewish Aged Home 1985 (3) SA 460 (W).

[10] See Oak Valley (id fn 8) at para 19.

[11] See: Oak Valley (id fn 8) at para 22.

[12] See: Oak Valley (id fn 8) at para 20.