Dario Investments (Pty) Ltd t/a Tembisa Superspar v Justice for All Workers of South Africa (JAWSA) and Others (2023-085941) [2024] ZAGPPHC 1266 (27 November 2024)

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

CASE NO: 2023- 085941

(1) REPORTABLE: NO

(2) OF INTEREST TO OTHER JUDGES: NO

(3) REVISED: NO

(4) Date: 27 November 2024

Signature

In the matter between:

DARIO INVESTMENTS (PTY) LTD t/a

Applicant

TEMBISA SUPERSPAR

(Registration No. 2010/009709/07)

And

JUSTICE FOR ALL WORKERS OF SOUTH AFRICA (JAWSA) First Respondent

ECONOMIC FREEDOM FIGHTERS POLITICAL PARTY

Second Respondent

LUCAS MADISHA

Third Respondent

ALL MEMBERS OF THE COMMUNITY AND ALL

Fourth Respondent

OTHER MEMBERS ACTING THROUGH AND ON

THE INVITATION OF THE FIRST TO THIRD

RESPONDENTS

THE SOUTH AFRICAN POLICE SERVICE

Fifth Respondent

JUDGMENT

NYATHI J

A. INTRODUCTION

[1] An urgent application was brought by the applicant on 29 August 2023 seeking an order to prohibit certain behaviour by the First to Fourth respondents.

[2] The order was granted whereafter several extensions of the Rule Nisi were also sought and granted.

[3] The respondent has brought an application in terms of Uniform Rules 30 and 30A, which is to be determined simultaneously with the confirmation or discharge of the rule nisi.

[4] At the commencement of the hearing Mr Burger applied for the condonation of the late filing of the applicant’s replying affidavit. This was opposed by Mr Marweshi on behalf of the respondent. The application was dismissed, and the replying affidavit excluded as a result.

[5] The first respondent is the only party that opposes the application for the confirmation of the spoliation order granted on an urgent basis on 29 August 2024 because there was a strike.

[6] It is the applicant's version of events that its property was spoliated, the applicant and its representatives could not access or take possession of the control of the property, a supermarket, and this was solely as a result of the respondents blocking access of the property.

[7] The applicant alleges that all it needed to do in order to succeed in obtaining the order was satisfy the court hearing the urgent application, of two (2) crucial elements, namely:

7.1 that it was in peaceful and undisturbed possession of the property,[1] and

7.2 that it was unlawfully deprived of its possession.[2]

[8] The respondent counters that and alleges that the events at the centre of the dispute between the parties was not spoliation, but confrontations that occurred in the cause of strike action by the former employees of the applicant, who have since been dismissed.

[9] The respondent raises five (5) points of opposition to the confirmation application, namely, mootness, authority to launch the application, non-joinder, jurisdiction and res judicata. I shall deal briefly with each in turn and consider the parties’ position on each below.

B. DISCUSSION

i. Mootness

[10] The respondent’s contention is that the applicant obtained the order under false pretences by dressing-up a strike as a spoliation complaint, after having failed twice at the Labour Court where it had sought to interdict the strike on an urgent basis. As it turned out, the striking employees have been dismissed subsequent to a disciplinary process.

[11] The founding affidavit of Johannes Hendrik Petrus Bezuidenhout confirms that this was a strike accompanied by intimidation and blockade of access to the supermarket. He is the Retail Risk Manager of the Spar Group.

[12] In Normandien Farms (Pty) Ltd v South African Agency for Promotion of Petroleum Exportation and Exploitation SOC Limited and Others, the Constitutional Court (CC) held that:[3]

"Mootness is when the matter no longer presents an existing or live controversy. The doctrine is based on the notion that judicial resources ought to be utilised efficiently and should not be dedicated to advisory opinions or abstract proposition of law, and that courts should avoid deciding matters that are abstract, academic or hypothetical".

[13] There are many other cases on the point that find in similar vein.[4] What is clear is that mootness is not of itself an absolute bar to justiciability of an issue, the court has a discretion to entertain a matter, mootness notwithstanding, where the interests of justice so require.

[14] Mr Marweshe submitted that confirmation of the rule nisi in this matter will not have a practical effect. It must be borne in mind that the main relief sought by the applicant is to confirm the spoliation order — the order that was sought unlawfully according to him. Now, the employees have been dismissed by the applicant on the 30th of September 2024, there is no undisturbed possession and peace that need to be restored at the applicant's premises.

[15] Respondents further submit that there is no triable issue to consider, and no party will receive any direct benefits or advantage as a result of an order on the merits by this Court. In terms of complexity — there is no discrete legal principle that requires this Court to decide the case.

ii. Authority to launch this application

[16] The applicant is a legal entity registered in accordance with the Companies Act.[5] It is trite that an entity such as the applicant when instituting legal action of this nature, the entity should issue a resolution authorising same. There is no resolution before this Court that purports to authorise the institution of these proceedings.

[17] The deponent merely states[6] that he is authorised to launch this application then attaches a confirmatory affidavit of Jenifer Jenny Angelides. The said confirmatory affidavit, however, does not confirm that the deponent is authorised to depose to the founding affidavit. The confirmatory affidavit deposed to by Jenifer Jenny Angelides is silent on the issue of authority to launch and prosecute this application.

[18] The SCA in Ganes and Another v Telecom Namibia Ltd[7] approved the approach taken in Eskom v Soweto City Council[8] that: “…the deponent to an affidavit in motion proceedings need not be authorised by the party concerned to depose to the

affidavit. It is the institution of the proceedings and the prosecution thereof which must be authorised.” [emphasis added].

iii. Non-joinder

[19] Any party who has a direct and substantial interest in the subject matter must be joined in the proceedings to safeguard their interests. The SCA in Absa Bank Ltd v Naude NO,[9] formulated the test for non-joinder as follows:

"The test whether there has been non-joinder is whether a party has a direct and substantial interest in the subject matter of the litigation which may prejudice the party that has not been joined."

[20] The first respondent has listed two instances of non-joinder that it complains of. The first is that the applicant has failed to join its own workers individually even though they were well-known to it, opting instead to join the first respondent who is an unregistered trade union with no legal standing to act on behalf of the workers.

[21] The second instance of non-joinder concerns the failure by the applicant to join the Birch Acres mall and its manager who is vested with the requisite authority to act on behalf of the mall.

[22] The applicant is a mere tenant at the Birch Acres mall, and the mall and its manager ought to have been joined to this application to afford them the opportunity to respond to the urgent application to the averments made pertaining to the matter. The SCA in Bowring NO v Vrededorp Properties CC[10] held that

“…the enquiry relating to non-joinder remains one of substance rather than the form of the claim… The substantial test is whether the party that is alleged to be a necessary party for purposes of joinder, has a legal interest in the subject matter of the litigation, which may be affected prejudicially by the judgment of the court in the proceedings concerned…”.[11]

[23] It was submitted on behalf of the respondent that for this omission to join the Birch Acres mall, the application should be dismissed with costs.

iv. Jurisdiction

[24] The former employees of the applicant embarked on a protected and lawful strike, demanding a salary increase of 10% amongst other demands. Eventually, the workers were dismissed by the applicant.

[25] The applicant launched an urgent application to the Labour Court on Friday, 25 August 2023. This application was heard by Judge MTM Phehane, who ultimately dismissed the application as the members were within their rights to embark on a protected strike.

[26] There was an escalation in the strike and the activities surrounded therewith, as a direct result of this action, the applicant approached the Labour Court with a second urgent application on Sunday, 27 August 2023.

[27] The matter was again heard by Judge MTM Phehane who regarded the matter as not as urgent enough to be heard on Sunday afternoon and struck the matter from the roll due to lack of urgency.

[28] The applicant then approached the Gauteng High Court in Pretoria on an urgent basis and obtained the spoliation order that is under discussion herein.

[29] Jurisdiction is determined based on the pleaded case. In cases where a specialist court (such as the Labour, Labour Appeal or Competition Tribunal) is vested with exclusive jurisdiction, such matters must be adjudicated by that court. This was the essence of the Constitutional Court’s conclusion in the triad of cases of Chirwa,[12] Gcaba[13] and Baloyi.[14]

[30] Section 68(1) of the Labour Relations Act[15] provides that:

“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 - to grant, 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.”

[31] This Court has no jurisdiction over this matter, despite the fact that the dispute before this Court is dressed up as spoliation — thus, the applicant approached the wrong Court. It is trite that the Labour Court has exclusive jurisdiction over a dispute emanating from the protected strike. The dispute before this Court emanates from the protected strike, as alleged by the applicant. The applicant itself was aware of the exclusive jurisdiction of the Labour Court; hence they approached it on two occasions. Only when they were unsuccessful due to technical reasons, did they resort to a forum shopping exercise. The rule nisi cannot on this basis be confirmed.

v. Res judicata

[32] I am not satisfied that on the papers filed and, on the argument, and submissions, that the two instances of the matter being before the Labour Court, and the outcome there triggers a sustainable case of an exception res judicata. I will leave it at that.

C. CONCLUSION

[33] In light of the foregoing discussion, I am not persuaded that a case for confirmation of the rule nisi has been made out.

[34] As regards costs, the standard position is that costs follow the outcome.

[35] The following order is made:

[36] The rule nisi is discharged. The application is dismissed with costs.

J.S. NYATHI

Judge of the High Court

Gauteng Division, Pretoria

Date of hearing: 12/09/2024

Date of Judgment: 27 November 2024

On behalf of the Applicant: Adv. WJ Burger

With him: Adv. X Van Niekerk

Instructed by: ML Schoeman Attorneys, Pretoria

On behalf of the 1st Respondent: Mr. M Marweshe (Attorney with Right of Appearance in the High Court). (Heads of argument being drafted by Adv. R Lekala.)

Duly instructed by: Marweshe Attorneys.

Delivery: This judgment was handed down electronically by circulation to the parties' legal representatives by email and uploaded on the CaseLines electronic platform. The date for hand-down is deemed to be 27 November 2024.

[1] Kgosana v Otto [1991]3 All SA 665 (W), 1991 (2) SA 113 (W); Impala Water Users Association v Lourens NO [2004] 2 All SA 476 (SCA), 2008 (2) SA 495 (SCA).

[2] Sillo v Naude 1929 AD 21; Ntai v Vereeniging Town Council [1953]4 All SA 358 (A), 1953 (4) SA 579 (A) George Municipality v Vena [1989]2 All SA 125 (A), 1989 (2) SA 263 (A).

[3] 2020 (4) SA 409 (CC).

[4] See also Solidariteit Helpende Hand NPC and Others v Minister of Cooperative Governance and Traditional Affairs (104/2022) [2023] ZASCA 35 (31 March 2023) where the SCA held that: “A court should refrain from making rulings on such matters, as the court’s decision will merely amount to an advisory opinion on the identified legal questions, which are abstract, academic or hypothetical and have no direct effect…”

[5] 71 of 2008.

[6] Founding affidavit para 7.

[7] 2004 (3) SA 615 (SCA) at [19].

[8] 1992 (20 SA 703 (W).

[9] [2015] ZASCA 97 at para 12.

[10] 2007 (5) SA 391 (SCA).

[11] At para 21 (References omitted).

[12] Chirwa v Transnet Limited and Others (CCT 78/06) [2007] ZACC 23; 2008 (4) SA 367 (CC); 2008 (3) BCLR 251 (CC); [2008] 2 BLLR 97 (CC); (2008) 29 ILJ 73 (CC) (28 November 2007).

[13] Gcaba v Minister for Safety and Security and Others (CCT64/08) [2009] ZACC 26; 2010 (1) SA 238 (CC); 2010 (1) BCLR 35 (CC); (2010) 31 ILJ 296 (CC); [2009] 12 BLLR 1145 (CC) (7 October 2009).

[14] Baloyi v Public Protector and Others (CCT03/20) [2020] ZACC 27; 2021 (2) BCLR 101 (CC); [2021] 4 BLLR 325 (CC); (2021) 42 ILJ 961 (CC); 2022 (3) SA 321 (CC) (4 December 2020).

[15] Labour Relations Act 66 of 1995.