Ekapa Minerals (Pty) Ltd v National Union of Metal Workers of South Africa ("NUMSA") and Others (P81/23) [2023] ZALCPE 20; [2023] 12 BLLR 1272 (LC); (2024) 45 ILJ 120 (LC) (19 September 2023)

IN THE LABOUR COURT OF SOUTH AFRICA, GQEBERHA

Not Reportable

CASE NO: P81/23

In the matter between:

EKAPA MINERALS (PTY) LTD

[REGISTRATION NUMBER: 2004/023503/07] Applicant

and

NATIONAL UNION OF METAL WORKERS

OF SOUTH AFRICA ("NUMSA") First

Respondent

PIET PHENDANE & 37 OTHERS Second

Respondent

Heard: 11 September 2023

Delivered: This judgment was handed down electronically by circulation to the Applicant and Respondents' Legal Representatives 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 19 September 2023.

JUDGMENT

LALLIE, J

[1] The applicant conducts business in the mining sector in the Northern Cape Province. It employees over 1000 employees. The first respondent (NUMSA) is the majority trade union and has 700 members at the applicant. In June 2023, the applicant and NUMSA held wage negotiations. They, however, could not reach agreement. When the wage negotiations broke down NUMSA decided to embark on a strike in an effort to compel the applicant to accede to its demands. In an effort to comply with the provisions of section 64(1) of the Labour Relations Act[1] (the LRA) NUMSA referred a dispute the Commission for Conciliation, Mediation and Arbitration (the CCMA). An attempt to resolve the dispute through conciliation was unsuccessful and a certificate to that effect was issued on 27 June 2023. On 1 August 2023, the CCMA issued picketing rules. On 4 August 2023, NUMSA issued the applicant with a strike notice and on 7 August 2023 the strike commenced. On 11 August 2023, this court issued an rule nisi, interdicting unlawful conduct by NUMSA members during the protected strike. On the return date the parties agreed that the rule nisi in respect of the interdict should be confirmed and that there were 2 issues for determination, namely, whether the respondents had breached the picketing rules and rendered the strike unprotected and costs.

[2] It is common cause that the individual respondents who will be refereed to as the respondents in this judgment breached some picketing rules. They picketed outside the demarcated picketing area and some of them were carrying traditional weapons. NUMSA attempted to justify the conduct by submitting that the respondents corrected their conduct promptly after it was brought to their attention that they were picketing outside the demarcated area. It was submitted that the persons carrying sticks were marshalls who were using them to control picketing members. The explanation is unacceptable because both employers and employees have a legal obligation to comply with picketing rules. The rules are drafted in terms of section 69 of the LRA and serve an essential purpose of ensuring that the constitutional right to picket is exercised in an orderly manager.

[3] The significance of complying with picketing rulers is expressed in item 32 of the Code of Good Practice Collective Bargaining,

Industrial Action and Picketing (the code) to the LRA, which requires a trade union to provide convenors and marshals with picketing rules. Further obligation is placed on unions to ensure that convenors, marshals and picketers understand picketing rules. The purpose is clear. It is to ensure that picketing rules must be complied with. The attempt to justify the breach cannot succeed.

[4] The pertinent question that needs to be answered is whether by breaching the picketing rules the respondents rendered their protected strike unprotected. The right to strike is entrenched in chapter 2 of the Constitution of the Republic of South Africa, 1996. Although it is not absolute it cannot be interfered with lightly. The LRA is prescriptive and provides relief that may be granted when picketing rules are breached. Section 69 which regulates picketing does not grant the Labour Court jurisdiction to declare a protected strike unprotected when picketing rules have been breached by striking employees. In the notice of motion the applicant made reference to section 68 of the LRA in seeking the declaratory order. The section does not support the applicant's version in that it does not enable this court to grant the relief. It must be noted that it is common cause that the strike is protected and section 68 deals with unprotected strikes. The jurisdiction of this court is spelt out clearly in section 157 of the LRA. For this court to have the necessary jurisdiction it must be enabled by legislation. The applicant provided no enabling legislation. The relief the applicant seeks falls outside the jurisdiction of this court. It may, in the circumstances, not be granted.

[5] I have considered the arguments on costs. As both parties have partially succeeded granting a costs order would not be appropriate.

[6] In the, premises the following order made:

1. Paragraphs 2.3, 2.3.1, 2.3.2, 2.3.4, 2.3.5, 2.3.6, 2.3.7, 2.3.8, 2.4, 2.4.1, 2.4.2, 2.4.3, 2.4.4, 2.4.5, 2.4.6 of the rule nisi issued on 11 August 2023 are confirmed.

2. There is no order as to costs.

Z. Lallie

Judge of the Labour Court of South Africa

Appearances

For the Applicant: Advocate

E. Lubbe

Instructed by Peyper

7 Botha Attorneys Inc

For the Respondents: Mr C. Phukubje of Phukubje Inc. Attorney

[1] Act 66 of 1995, as amended.