Contracta Force Corporate Solutions (Pty) Ltd v National Union of Public Service and Allied Workers and Others (P 87/22) [2022] ZALCPE 42; (2023) 44 ILJ 558 (LC) (6 December 2022)

IN THE LABOUR COURT OF SOUTH AFRICA, GQEBERHA

Not Reportable

CASE NO: P 87/22

In the matter between:

CONTRACTA FORCE CORPORATE

SOLUTIONS (PTY) LTD

Applicant

And

NATIONAL UNION OF PUBLIC SERVICE

AND ALLIED WORKERS

First Respondent

THE EMPLOYEES IN ANNEXURE “A”

TO THE NOTICE OF MOTION Second

and Further Respondents

Heard: 25 August, 15 November and 1 December 2022

Delivered: This judgment was handed down electronically by circulation to the Applicant’s and First Respondent’s legal representatives and the Second and Further Respondent’s representative by email, publication on the Labour Court website and release to SAFLII. The date and time for handing - down is deemed to be 16h00 on 6 December 2022.

JUDGMENT

LALLIE, J

[1] On 25 August 2022 the applicant obtained a rule nisi in the following terms:

“1 The forms, service and time period provided for in the Rules of this Court and in section 68(2) of the Labour Relations Act, 66 of 1995 (the LRA) are dispensed with and the matter is heard as an urgent application in accordance with the provisions of rule 8 of the rules of this Honourable Court.

2. A rule nisi is hereby issued, calling upon the respondents to show cause, if any, before the above Honourable Court on 15 November 2022 why the following order should not be made final:

2.1 The strike action that commenced on 17 August 2022 be declared an unprotected strike as contemplated by section 68(1) of the LRA.

2.2 The second respondent be interdicted and restrained from:

2.1.1 participating or taking part in any strike action or any conduct in contemplation or in furtherance of a strike;

2.1.2 intimidating employees who are not participating in the unprotected strike from reporting for work and performing their duties;

2.1.3 promoting, instigating, encouraging, inciting, facilitating or causing any other person to be involved or take part in the unprotected strike, or cause a disturbance to the applicant’s operation;

2.1.4 making use of any other person, entity or association to engage in the unprotected strike;

2.1.5 threatening and insulting the applicant’s management staff;

2.1.6 causing damage to the applicant’s property situated at 17 Nicoll Road, Korsten, Gqeberha, including setting alight the applicant’s property and/ or the flammable material the second respondents have placed at the entrance gates to the applicant’s premises and plant situated 17 Nicoll Road, Korsten, Gqeberha;

2.1.7 blocking and/ or obstructing access to and exit from the applicant’s premises and plant;

2.1.8 blocking and/ or obstructing trucks from traveling to and from the applicant’s premises and plant;

2.1.9 interfering with the proper functioning of the applicant’s operations;

2.1.10 committing any acts of violence, including stone-throwing.

2.2 The first respondent:

2.2.1 be interdicted and restrained from inciting or encouraging its members to participate in the unprotected strike;

2.2.2 be ordered to take all such steps as may be reasonable and necessary to ensure that paragraphs 2.2, 2.1.1 to 2.2.10 above are complied with by all their members.

2.3 The costs of the interim interdict application be reserved for determination with the final interdict.

3. Paragraphs 2.1 to 2.23 above operate as an interim order, with immediate effect, pending the outcome of this application.

4. The Sheriff, with the assistance of the South Africa Police Services as may be required, to give effect to the provisions of paragraphs 2.1 to 2.2.

5. The applicant is granted leave to serve the order by substituted service on the respondents by sending a copy of the order and the application to the first respondent’s known email addresses, namely generalsecretary@nupsaw.co.za; el@nupsaw.co.za and pe@nupsaw.co.za.

6. The service of this order and a copy of the application be affected by the Sheriff on the second respondent as follows:

6.1 by affixing a copy of the order on at least one notice board at the applicant’s premises at 17 Nicoll Road, Korsten, Gqeberha, where the second respondent is currently participating in the unprotected strike and on each entrance gate to the applicants premises at 17 Nicoll Road, Korsten, Gqeberha;

6.2 by handing a copy of the order to the trade union representatives of the second respondent as may be identified to the Sheriff by the second respondent or applicant’s representative.

6.3 by reading out the contents of the order over a loudspeaker or similar alternative means after service was effected and/ or attempted as provided for above”.

[2] On the return day the applicant sought the confirmation of the rule nisi alternatively, an order declaring the conduct and strike action which was interdicted in the rule nisi unlawful and unprotected respectively. It was argued on behalf of the respondents that the rule nisi should be discharged because its confirmation would serve no purpose as all the interdicted conduct has ceased and the second to further respondents had been dismissed.

[3] Both parties relied on Ekurhuleni Metropolitan Municipality v SAMWU & others[1] where the court refused to confirm an interdict against striking employees on the basis that the strike had ended. Mr Grobler argued

on behalf of the applicant that there is a real danger that the second and further respondents would resume their unlawful conduct.

The confirmation of the rule nisi was sought to protect the applicant from a future unprotected strike and unlawful conduct by the second to further respondents.

[4] In Polyoak (Pty) Ltd v Chemical Workers Industrial Union & others[2] which was referred to with approval in Ekurhuleni Metropolitan Municipality (supra) it was held that an open-ended interdict which binds the respondents for an indefinite period is improper, undesirable and legally wrong. The legal view is correct.

[5] I accept the argument of Mr Dwayi for the first respondent that the order the applicant sought may not be granted. It is common cause that the second to further respondents have been dismissed. Their unprotected strike action has long ceased and following their dismissal they are no longer employees of the applicant. They are therefore in no position to commit any acts against the applicant in their capacity as its employees. As the rule nisi interdicted conduct by the second and further respondents in their capacity as the applicant’s employees, the confirmation of the rule nisi will not achieve the purpose the applicant seeks it for.

[6] The applicant persisted with the argument that the strike action by the second to further respondents be declared unlawful particularly in light of the unfair dismissal dispute which has been referred to the Commission for Conciliation, Mediation and Arbitration (CCMA) pursuant to their dismissal. It was argued on behalf of the respondents that the order should not be granted because it could only strong-arm the applicant in the determination of future disputes against the parties. In Ekurhuleni Metropolitan (supra), authority both parties relied on, the following view was expressed:

“[19] Sometimes, even though the conduct complained of has ended there will be a dispute over whether or not the industrial action itself was unlawful or not. In such instances it may still be important for the parties to have a final determination of this issue as this could, for example, impact on whether or not disciplinary action might validly be taken against those who participated in the action, or affect whether or not compensation for losses incurred might be obtained. In such instances, a final pronouncement by the court on the lawfulness of the action will be important.”

[7] I am of the view that a court order should serve the purpose for which it was granted. The rule nisi was granted to interdict unlawful conduct pending the return day. On the return day it should either be discharged or confirmed based on the conduct which resulted in it being issued. Any disputes arising from the unprotected strike action should be resolved in their appropriate fora. An employer does not need a court order declaring strike action unprotected before taking disciplinary action against employees who participated in that strike and compensation against those employees for losses resulting from their unlawful conduct. I could find no legal basis for granting the declaratory order. The declaratory order will put the applicant at an advantage and prejudice the second and further respondents. As the need for the interdict has fallen away, the rule nisi must be discharged.

[8] The respondents provided no reasons in law and fairness for a costs order against the applicant.

[9] In the premises, the following order is made:

1. The rule nisi issued on 25 August 2022 is discharged.

2. There is no order as to costs.

Z. Lallie

Judge of the Labour Court of South Africa

APPEARANCES

For the Applicant:

Adv. S Grobler

Instructed by

Bester Lauwrens Attorneys

For the First Respondent: Adv. Dwayi

Instructed by

Bono Attorneys

For the Second Respondent: Mr Booi - Spokesperson of the second and further respondents

[1] [2011] 5 BLLR J16 (LC)

[2] (1999) 20 ILJ 392 (LC)