Ethekwini Municipality v South African Municipal Workers union and Others (D119/24) [2024] ZALCD 33 (20 September 2024)

IN THE LABOUR COURT OF SOUTH AFRICA, DURBAN

Not Reportable

Case No: D 119/24

In the matter between:

In re: Interdict

ETHEKWINI MUNICIPALITY Applicant and SOUTH AFRICAN MUNICIPAL WORKERS UNION (SAMWU) First Respondent SHOP STEWARDS OF 1st RESPONDENT (ANNEXURE A) Second Respondents EMPLOYEES OF APPLICANT AND MEMBERS OF FIRST RESPONDENT (ANNEXURE B) Third Respondents In re: Contempt ETHEKWINI MUNICIPALITY Applicant and SOUTH AFRICAN MUNICIPAL WORKERS UNION (SAMWU) First Respondent SHOP STEWARDS OF 1st RESPONDENT (ANNEXURE A) Second Respondents EMPLOYEES OF APPLICANT AND MEMBERS OF FIRST RESPONDENT (ANNEXURE B) Third Respondents SIYABONGA DLADLA Fourth Respondent

Heard: 24 May 2024

Delivered: This judgment was delivered electronically to the parties by email. The date and time for hand-down is deemed to be 20 September 2024.

JUDGMENT

WHITCHER J

Introduction

[1] This case highlights the arduous evidentiary burden faced by employers such as the applicant when they seek an urgent interdict to protect its operations and employees from unruly mobs of striking employees. But also, that employers and their legal representatives seem not to take heed of this when pleading their cases, including available processes that mitigate this burden.

[2] The relief sought in this case is two-fold: (a) that the interim interdict granted to the applicant on 28 February 2024 interdicting the respondents from, amongst others, damaging the applicant’s property; threatening and assaulting non-strikers; and unlawfully interfering with the applicant’s operation be confirmed/made final; (b) that the respondents be found guilty of breaching the interim order and thus contempt of court.

[3] The respondents contend that the relief sought in both matters is not competent.

The Interdict

Factual background

[4] On 27 February 2024, SAMWU held a meeting with its members at Currie’s Fountain in Durban. The meeting was pre-approved by the applicant for two hours only, and the members were supposed to return to work thereafter. This did not happen. Instead, they marched to the City Hall to present a wage grievance.

[5] SAMWU says that upon the delivery of the grievance, “a resolution was taken by leaders of [SAMWU] for members to resume their duties whilst negotiations were ongoing.” The members, however, did not resume their duties. I use the term “the members” loosely of course because on the papers there is no indication as to which members did not resume their duties – whether it was all or only some members.

[6] According to the founding affidavit deposed to by the applicant’s Senior Manager: Legal Services, those employees then engaged in unlawful protest action. Employees, “from the engineering department took vehicles into the city and blocked access to West Street (a main busy street), blocking the traffic”; others made fires at the intersection of Electron and Supply Road in Springfield and blocked members of the public from dumping their refuse inside the dump sites; and others intimidated and assaulted

co-workers at Durban Solid Waste. In addition, a non-striking employee was shot and a voice note was circulated instructing the

intimidation of non-strikers in Umlazi and Isipingo.

[7] Photographs were attached to the affidavit purporting to support these claims and a written translation of the voice note was attached. The photographs appear to depict the blocking of West Street; the deposit of loads of sand in roads, a vehicle with what appears to be hole in the front windscreen, a person sitting in a wheelchair with what appears to be an injury to his arm. But save for the blocking of West Street, the remaining photographs were not pertinently referred to and explained in the affidavit.

[8] A written transcript of the alleged voice note is also attached, but there is no explanation in the founding affidavit as to its source, how it was sourced and from whom.

[9] Citing these unlawful acts, in the evening of 28 February 2024, the applicant secured an interim order interdicting the cited respondents from, amongst others, unlawfully interfering with the operations of the applicant, blocking access to and disrupting the applicant’s operations, damaging the applicant’s property and from intimidating, assaulting and threatening non-strikers.

[10] The order further instructed SAMWU and its shopstewards to take meaningful steps to enforce the order.

[11] The application cited three groups of respondents: SAMWU, the shop stewards of SAMWU and SAMWU’s members.

[12] In an answering affidavit deposed to by SAMWU’s regional secretary, with general confirmatory affidavits from a few shopstewards, SAMWU denied that all the members listed in annexure A are still shopstewards and that all the shopstewards were part of the protest action. They say some shopstewards listed in the annexure are from a unit (Ushaka Marine World) and at the time were involved in a protected strike taking place at Ushaka Marine World. SAMWU, however, did not identify these individuals.

[13] As to the alleged unlawful conduct, SAMWU did not squarely address the blocking of West Street and this allegation therefore stands uncontroverted.

[14] As to the remaining allegations, SAMWU generally denied same but on the submissions that the applicant failed to prove the alleged unlawful acts, failed to identify the alleged perpetrators and failed to link each of the various respondents to the alleged unlawful conduct.

Issue to be decided

[15] The question before this court is whether the applicant is entitled to have the interim order against the cited respondents confirmed/made final.

[16] I am constrained to accept the respondents’ case that a final interdict is not competent in this case. This is based on two

grounds: (a) that the relief sought was moot by the time of the hearing of this matter; (b) even if one accepts unlawful conduct

occurred as claimed by the applicant, the applicant failed to sufficiently[1] link each of the various respondents to the alleged actual or threatened unlawful conduct (as per the prescripts of the requirements of a link laid down by the Constitutional Court, as discussed below). The first ground to my mind is dispositive of the application. Nevertheless, I addressed the second ground.

The requirements for a final interdict

[17] The requirements for a final interdict are settled. An applicant for such an order must show a clear right; an injury actually committed or reasonably apprehended; and the absence of similar protection by any other ordinary remedy. Injury in this sense means an unlawful

infringement (actual or threatened) of the applicant’s clear right.[2]

[18] The purpose of injunctive relief is to “put an end to conduct in breach of the applicant’s rights. An interdict is intended to protect an applicant from the actual or threatened unlawful conduct of the person sought to be interdicted. Thus, for an interdict to be granted, it must be shown, on a balance of probabilities (taking into account the Plascon Evan’s rule, where final relief is sought on motion), that unless restrained by an interdict, the respondents will continue committing an injury against the applicant or that it is reasonably apprehended that the respondents will cause such an injury. The applicant is not required to establish that, on a balance of probabilities flowing from the undisputed facts, injury will follow. He [it] has only to show that it is reasonable to apprehend that injury will follow. [3]

[19] In the case of Polyoak[4] (Pty) Ltd v Chemical Workers Industrial Union & others (1999) 20 ILJ 392 (LC), the labour court was asked to confirm an interim order, amongst other things restraining unlawful conduct by striking

employees for an indefinite period. Brassey, AJ held:

“The fourth prayer I consider improper is an open-ended one, that is, one that binds the respondents for a period whose duration is indefinite and potentially unlimited. As I have said, an interdict can be granted only to restrain misconduct that is likely to occur in the future. The period during which this is likely to happen is a question of fact, but it will rarely, if ever, be indefinite. It will normally last for no longer than the motive for wrongdoing remains alive - typically, within this context, the duration of the strike plus the time it thereafter takes for life to return to normal. The unlimited operation of a sword of Damocles, to which I referred above, is more than simply undesirable, it is legally wrong.”[5]

[20] Brassey AJ held in Polyoak that generally speaking, a person can only be restrained by interdict if the evidence demonstrates that, as a matter of probability, he or she will commit the act in question within the period encompassed by the proposed order.

[21] In the result, the court in that case confirmed the rule, but limited it to a period for one month after the strike. In that case it appears that the strike had not ended when the final order was granted.

[22] The learned author, Prest C B, SC, writes also:

“The purpose of litigation is to arrive at an effective judgment or order a court is not wont to give an order whereby no particular end is achieved. Where an applicant has been granted a rule nisi , and all things have been done which the rule required to be done and there seems to be little point in making the rule absolute, the more obvious order is for the rule to be discharged.”[6]

Moot relief: conduct has ceased

[23] To my mind, the relief sought has become moot given that the alleged unlawful conduct that is the subject of the rule nisi ended months ago. As alluded to, for a final interdict to be granted, it must be shown, on a balance of probabilities that unless

restrained by an interdict, the respondent will continue committing an injury against the applicant or it is reasonable to apprehend that injury will follow.

[24] Ultimately, the alleged unlawful conduct that is the subject of the rule nisi exists no interest other than a historical one and accordingly the practical effect of a final order has become moot.

[25] I have similar concerns to those voiced in the Polyoak decision about the effect of the relief sought in this matter, and for that reason also I decline to confirm the order.

[26] To the extent that I may be wrong, I address a further ground on which the application stands to be dismissed.

Connection to the unlawful conduct

[27] The Constitutional Court in Oak Valley Estates[7] held that notwithstanding the fraught context of industrial relations, interdictory relief can only be competently granted if a respondent can be rationally linked to the unlawful conduct. The Court explained that this requirement flows from the fact an applicant for a final interdict must show a reasonable apprehension of injury. Absent any link between the unlawful conduct and the respondent, the applicant cannot reasonably apprehend that the respondent will cause her injury. The Court held further that mere participation in a strike or protest in which there is unlawful conduct is insufficient to adequately link the respondent to that conduct. The required link could, however, be shown, if it was established that the strikers or protesters had committed the unlawful conduct as a cohesive group or sub-group. The Court explained that where unlawful conduct during protest action is ongoing, widespread, and manifest, individual protesters or strikers will usually have to disassociate themselves from the conduct, to escape the inference that they acted in concert with those who engaged in acts of unlawfulness. By contrast, where a protest or strike is substantially peaceful, but there are isolated and sporadic instances of unlawful conduct, only those protesters who associate with the acts of unlawfulness can permissibly be placed under interdict. The Court held that this requirement, which is the extant common law position, appropriately balances the competing rights and interests of employers and employees.

[28] In addition, the Court held, where a strike is beset by unlawful conduct and large numbers of protestors or strikers deliberately conceal their identities – for instance, through the wearing of masks – a court may be entitled to more readily conclude that an applicant has a reasonable apprehension that the participants in the strike will cause it injury.

[29] As to the nature of evidence, the Court held that the requirement [of a link] does not entail that an employer must lead direct evidence establishing conclusively that the interdicted employee was responsible for specific unlawful conduct. The employer could discharge its onus by putting up facts from which an inference can be drawn that it is more probable than not that the employee herself engaged in unlawful conduct or associated herself with it. The production of proper proof either directly or by circumstantial evidence is not beyond the ingenuities of employers given the modern technology that is available to them.

Was there unlawful conduct and an adequate link thereto to each respondent or an identifiable sub-group of the respondents?

[30] The only act I can safely conclude happened and is rationally connected to members of SAMWU is the claim that vehicles of the applicant were unlawfully commandeered and taken into the city where they were used to block access to West Street, blocking traffic. SAMWU did not squarely deny this act.

[31] In any event, given the surrounding circumstances at the time, the most readily apparent and acceptable inference is that the unlawful act was committed by protesting members of SAMWU.

[32] However, these members are not identified, an omission it seems that could have been rectified by the time of the final hearing of this matter given the particularity of the allegation, namely that the act was committed by protestors from the engineering department.

[33] Where considerations of urgency have precluded the preparation of a comprehensive founding affidavit, leave should be sought to

supplement such founding affidavit, prior to requiring the respondents to answer the allegations made against them. [8]

[34] It is noted that the Constitutional Court held that the required link could be shown if it was established that the strikers or protestors had committed the unlawful conduct as a cohesive sub-group, such as in this case strikers/protestors from the engineering department. But even here, more was needed in terms of identification.

[35] In the circumstances, interdictory relief cannot be competently granted against respondent members from the engineering department or all the respondents in respect of the unlawful act in question.

[36] As to the remaining allegations, I agree with the respondents that the applicant’s case amounts to a number of unsubstantiated conclusions regarding alleged threatening behavior and assault, without sufficient particularity supplied, or direct perpetrator identified.

[37] Here again, I note with some criticism that it seems that with some effort some of the perpetrators could have been identified (even later in a supplementary affidavit). Here I have in mind the employees who allegedly assaulted and intimidation co-workers at DSW. Given these acts were probably up close and committed by fellow employees, why was it not possible to identify them or to introduce these details in a manner that could protect the confidentiality of the victims.

[38] Lastly in respect of the second and further respondents, it was not averred and shown in this application that the alleged unlawful acts were ongoing over a prolonged period of time, widespread, manifest and of a violent nature as to have required the members to have dissociated themselves to escape the interdict.[9]

[39] As regards SAMWU itself, it follows that interdictory relief against it is not competent where interdictory relief against its members is not competent for the reasons stated above.

Conclusion

[40] The applicant failed to establish all the alleged unlawful conduct and in any event failed to draw the required link between the respondents and the alleged unlawful conduct. It therefore failed to show it had reasonable apprehension that it would suffer injury at the hands of these respondents if they were not placed under interdict.

Costs

[41] Given the ongoing relationship between the parties and a finding that there was a measure of unlawful conduct, there is no compelling reason to make a costs order.[10]

Contempt of Court: failure to comply with the interim order

[42] It is settled law that an applicant must prove the following requisites of contempt: (a) the existence of the order granted against the respondent/s; (b) service or notice or proper knowledge of the order; and (c) the respondent/s have failed to comply with the

order. Once, the applicant has proved the order, service or notice or proper knowledge of the order, and noncompliance, the respondent

bears an evidential burden in relation to wilfulness and mala fides.

[43] As explained above, the interim order interdicted the cited respondents from, amongst others, unlawfully interfering with the operations of the applicant, blocking access to and disrupting the applicant’s operations, damaging the applicant’s property and from intimidating, assaulting and threatening non-strikers.

[44] The order further instructed SAMWU and its shopstewards to take meaningful steps to enforce the order.

[45] On the issue of service, the interim order specifically instructed that the order

“be served as follows:

(a) On the first and second shopstewards respondents and its members by the sheriff of the court at [SAMWU’s offices];

(b) On the individual respondents as set out in annexures “A” and “B” by the sheriff of the Court, reading out the contents of the order to as many of the respondents as gathered at any of the affected locations or by pinning a copy of the order at the main gates of the applicant’s premises or on the notice boards at the applicant’s premises normally used to convey information to the employees or using whatsapp or mobile text sms services.”

[46] It is common cause that there was no service in terms of (b) above. The order was, however, served on SAMWU in terms of (a) above and on SAMWU’s legal representative who was present when the interim order was issued.

[47] I agree with respondents’ counsel that the applicant’s failure to serve in accordance with the term of (b) above means the contempt application stands to be dismissed, despite service of the order on the representatives of the second and further respondents and the order instructing “SAMWU and its shopstewards to take meaningful steps to enforce the order.”

[48] Significantly, the service orders are not formulated in the alternative. There is no conjunction (“or”) that connects two possibilities or alternatives. It thus follows that service in accordance with (b) was peremptory.

[49] Further to the above, the applicant has not averred and proved that in any event the interim order was pertinently brought to the attention of the second and further respondents, and/or that they definitely had knowledge of the order and its contents.

[50] The order directing SAMWU to take meaningful steps to enforce the order did not serve as a substitute for proper service in terms of (b) and I know of no legal principle that trade unions are mainly responsible for enforcing such orders.

[51] An additional feature in this contempt application is that of the fourth respondent, who according to the founding affidavit is the chairperson of SAMWU and whose address for the purposes of the application was cited as that of SAMWU.

[52] For similar and additional reasons, the application against this respondent also stands to be dismissed. He was not cited individually in the notice of motion for the interdict and he was not specifically served with the interim order.

[53] Finally, given that the contempt of court application falls to be dismissed against its members and shopstewards, it follows that no contrary order is competent against SAMWU.

[54] I point out that I considered whether it was competent to strike the application from the roll for lack of proper service. However, the law is clear. An applicant who alleges contempt of court must establish, amongst others, that the alleged contemnor was served with the order or had proper knowledge of the order. This requirement, specifically where the potential contemnor’s freedom is at stake, is not a purely idle or technical one, but in essence a substantive requirement. It does not simply relate to the court’s competency to determine an application, as for instance, an urgent application which lacks urgency.

[55] Here again, given the ongoing relationship between the parties and the finding that there was unlawful conduct by members of SAMWU, there is no compelling reason to make a cost order.

Order

[56] The application to make the interim interdict granted in favour of the applicant on 28 February 2024 is dismissed and the rule is discharged.

[57] The contempt of court application is dismissed.

[58] There is no order as to costs.

Benita Whitcher

Judge of the Labour Court of South Africa

APPEARANCES:

For the Applicant: Adv N Mfeka, instructed by Farrell Inc. Attorneys For the Respondents: Adv. Z Mshololo, instructed by M Dlamini Attorneys

[1] The degree of proof being: on the evidence (direct or circumstantial) more likely than not.

[2] Commercial Stevedoring Agricultural and Allied Workers Union and Others v Oak Valley Estates (Pty) Ltd and Another (2022) ZACC 7 (‘Oak Valley’).

[3] Oak Valley Estates, FN 2.

[4] Polyoak (Pty) Ltd v Chemical Workers Industrial Union & others (1999) 20 ILJ 392 (LC).

[5] At 396H-J

[6] The Law & Practice of Interdicts, Juta, 1996, at p 333

[7] FN 1.

[8] Polyoak (Pty) Ltd v CWIU & others (1999) 20 ILJ 392 (LC) at 395 B-D; I also note the Constitutional Court’s suggestion in Valleyoaks that in urgent applications, the rule that a case may not be made in a replying affidavit may be relaxed.

[9] I emphasize in this application because while it is averred in the contempt application which was heard with this application that the alleged unlawful conduct

continued for some time, the point was not made in the interdict application.

[10] In Oak Valley (FN2), the Constitutional Court made a similar cost order.