Harvest Bopp Bags Manufacturing (Pty) Ltd v Liberated Metal Workers' Union of South Africa and Others (57392/16) [2017] ZAGPPHC 239 (26 May 2017)

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

CASE NO: 57392/16

26/5/2017

Reportable: No

Of interest to other judges: No

In the matter between:

HARVEST BOPP BAGS MANUFACTURING (PTY) LTD Applicant

and

LIBERATED METAL WORKERS' UNION OF 1st Respondent

SOUTH AFRICA

MARTHA NTITE 2nd Respondent

NKELE FRANCINA LEHODI 3rd Respondent

MARTIN CHAUKE 4th Respondent

TINYEKO LYDIA MASHIMBYE 5th Respondent

TSAKANI LIZEN CHAUKE 6th Respondent

PORTIA BEZILLE BALOYI 7th Respondent

LUFUNO LURULI 8th Respondent

MALEBO FRANCINAH MADISHA 9th Respondent

JOSINAH MMATAEMANE CHABALALA 10th Respondent

MONKGATI DORAH MATJI 11th Respondent

GRACE MASWANGANYI 12th Respondent

SARAH ZANELE 13th Respondent

MMATSATSI MARIA SOEMA 14th Respondent

SARAH SITHOLE 15th Respondent

KHENSANISHARON CHAUKE 16th Respondent

NKOKOANE RACHEL KOLOBE 17th Respondent

BONGANI MAKHUBELA 18th Respondent

CATHRINE MMALEPHUTI MOTSHELE 19th Respondent

MARIA SALELENG BALOYI 20th Respondent

LESEGO JOSEPHINAH MODIBA 21st Respondent

DIKELEDIELINA KEKANA 22nd Respondent

BUNICE MODEKA 23rd Respondent

TSAKANI RIBOMBO 24th Respondent

CLANCINA NTSAWLENG MOLAPO 25th Respondent

WILLIAM CHAUKE 26th Respondent

HILDA NTEPANE MONALEDI 27th Respondent

FIONA MCHALE 28th Respondent

SINAH KGOMOTSO MAPENGU 29th Respondent

DINEO NDLOVU 30th Respondent

EUNICE LINDIWE SIBISA 31st Respondent

TSHEPISO REBECCA KEKANA 32nd Respondent

JOHANNAH MASHIANE 33rd Respondent

NTABISENG PRECIOUS MATLALA 34th Respondent

GETRUDE RATSELA 35th Respondent

MASEL ETHEL MOLOKWANE 36th Respondent

ANNALI MATHIPE MASANGO 37th Respondent

EMMACULATE XOLISILE APHANE 38th Respondent

EMILY THENKGO RAPHIRI 39th Respondent

BETTY MOLEFE 40th Respondent

RACHEL NKATODI RABILE 41st Respondent

ELLEN KUTUMELA 42nd Respondent

OCTAVIA LEKALEKALE 43rd Respondent

MONEA ROSINAH MOGALE 44th Respondent

TINYIKO NBYELI RIKHOTSO 45th Respondent

REFILWE PHELLISTAS TEFFO 46th Respondent

RABELINA MADAVHA 47th Respondent

ALFRED LETLHOGONOLO RASEROKA 48th Respondent

GOMOTSEGAN GOITSEONE MCKONE 49th Respondent

PHILEMON LEBOGANG MPUFANE 50th Respondent

RESIMATE HUMPHREY BILA 51st Respondent

THAPELO JONAS 52nd Respondent

PORTIA KATLEGO MOSIPHA 53rd Respondent

RUTH KOMANE 54th Respondent

MABLE LAKA 55th Respondent

TEBOGO ALLETA MACHAKA 56th Respondent

AGNES TINYIKO CHAUKE 57th Respondent

JUDGMENT

MALI J

[1] This is an application to have interim interdict granted on 22 July 2016 to be made final. The interim interdict was granted on urgent basis. The return date for the rule nisi was 11 August 2016, the first respondent only filed its answering affidavit on 26 August 2016. The second to fifty seventh respondents did not file affidavits. The rule nisi was extended on numerous occasions until the matter was finally set down in the opposed motion court roll. The first respondent opposed the application. The second to fifty seventh respondents did not oppose the application.

[2] The applicant is a limited liability company incorporated and registered within the laws of the Republic. It primarily conducts

business in the manufacturing and supply of plastic bags mainly for the agricultural industry.

[3] The first respondent is a trade union duly registered within the laws of the Republic. The second to fifty seventh respondents were the employees of the applicant and are members of the first respondent.

[4] The terms of the interim interdict sought to be made final are as follows:

The respondents are interdicted and restrained from

4.1 preventing access to the applicant's business premises;

4.2 causing malicious damage to the applicant's property;

4.3 intimidating, harassing , assaulting or threatening to assault the applicant's employees, replacement employees, suppliers, customers;

4.4 unlawfully interfering with the applicant's business operations and from co-opting any third party to do so.

4.5 The respondents were also ordered to remain at least 500 meters from the applicant's premises.

BACKGROUND

[5] On or about 5 July 2016 second to fifty seventh respondents ("the respondents”) embarked on an unprotected industrial action ("strike”). It is not in dispute that on 5 July 2016 the respondents were issued with letters requesting them to return to work and refrain from the unprotected industrial action. It is apparent that they refused to accede to the request and to the ultimatum issued on 6 July 2016 and they were then dismissed. The respondents employment was terminated on 8 July 2016.

[6] On 11 July 2016 the respondents gathered in front of the applicant's main entrance and blocked same. The applicant considers the gathering as unlawful, hence the respondents were dismissed. The applicant had a meeting with the first respondent and requested that the members of the first respondent and its officials refrain from the unlawful gathering and causing disturbance by intimidating other employees who were not part of the respondents from going to work. The said meeting did not yield positive results instead the officials of the first respondent who are not employees of the applicant joined the unlawful gathering. It is not in dispute that the officials of the first respondent who joined the strike are Mr Lebogang Mphufane, Ms Sarah Skosane and Ms Martha Chauke.

[7] The respondents continued with the illegal gathering and intimidation of non-striking workers until the morning of 21 July 2016. The respondents uttered threats such as "We will burn you” and "you will shit, you will burn".

[8] According to the applicant it reported the incident to the police, however the police failed to take action against the respondents. The applicant was thus compelled to bring this application.

ISSUE

[9] The issue to be determined is whether the applicant has met the requirement of a final interdict.

LAW

[10] It is trite law that an applicant desirous of approaching a court for a final interdict must demonstrate (i) clear right; (ii) an injury actually committed or reasonable apprehended; and (iii) the absence of alternative remedy. See Setlogelo v Setlogelo[1] and Pilane and Another v Pilane and Others[2].

ARGUMENTS

[11] Counsel for the first respondent submitted that the issue of urgency was still pending and had to be decided in this matter. I reject this contention, the interim interdict was granted in the urgent court where all the issues regarding urgency were considered.

[12] On behalf of the applicant, regarding the first requirement; it was submitted that it has a clear right to protect its property. The applicant has a duty to provide a safe and healthy working environment to its employees, to be economically active as well as to conduct business undisturbed and peacefully.

[13] The first respondent's counsel submitted that respondents were involved in a peaceful demonstration. Counsel did not counter the applicant's argument regarding the clear right, except to insist on the unlawful dismissal of the respondents who are not opposing the application. The issue and the manner of the respondents dismissal has no relevance in this application.

[14] With regard to the second requirement, that of injury committed or well grounded apprehension; the respondents had threatened to bum the applicant's property. They had severely disrupted the business activities of the applicant. It was further submitted that the applicant employs international technicians from amongst other countries, China, the Phillipines, Naples and India. The unlawful conduct of the respondents also had a negative impact on the applicant's diplomatic relations with the said countries.

[15] As a result of respondent's unlawful and threatening activities the applicant had to cancel all the shifts for 22 July 2016 leading to economic loss. The mere fact that they had managed to intimidate the non-striking employees is a reason for apprehension for future intimidation if the final order is not granted. Furthermore the threats of burning the property and harming people cannot be ruled out in the respondents' future behaviour.

[16] To the above it was submitted on behalf of the first respondent that the first respondent's involvement through its officials and its members was not true. Counsel for the first respondent stated that there was no evidence to prove the involvement of the first respondent as there were no photographs taken to prove same. In the founding affidavit of the applicant it stated that video footage of the events is available in the event the court requires same. The first respondent did not raise the issue of the video footage in the answering affidavit and in the heads of argument. The first respondent has no basis to state that there was no injury suffered and to be apprehended by the applicant.

[17] In regarding the requirement of the absence of an alternative remedy, the applicant submitted that it reported the matter to the police who refused to attend to the matter. According to the first respondent the applicant had and has a remedy to report the matter to the police. The first respondent does not agree with the applicant's version because there is no confirmatory affidavit filed by the police. The court is persuaded by the applicant's submissions. The applicant's affidavit clearly states that the matter was reported to Themba Police Station to one Constable Langa. Police Officers are not required to file confirmatory affidavits. The first respondent could have confirmed with the police in the event it did not believe the applicant's version.

[18] The entire case of the first respondent is a bare denial. Having regard to the above I find that the applicant has met the requirements for the granting of a final interdict.

COSTS

[19] The applicant prays for costs against the first respondent on attorney and client scale. This is because the members of the first respondent were requested on several occasions to refrain from their unlawful conduct. Furthermore the involvement of the first respondent's officials in the unlawful action had an effect of inciting the other respondents. It was expected of the first

respondent to assist to quell the undesirable and unlawful conduct. However the situation was aggravated by the fact that not only its members but also its officials had participated in the unlawful conduct. No order of costs is sought against the second to fifty eight respondents as they did not oppose the application.

[20] The grounds upon which the court may order a party to pay an opponent's attorney - and- client costs include the following: that the party has been guilty of dishonesty or fraud or had vexatious, reckless and malicious, or frivolous motives[3] or committed grave misconduct either in the transaction under inquiry or in the conduct of the case.[4]

[21] The court's discretion to order payment of attorney- and-client cost is not restricted to the grounds mentioned above. It includes all cases in which special circumstances or considerations justify the granting of such an order.

[22] In the present matter the court finds that the conduct of the first respondent, in particular the involvement of its officials in the unlawful conduct, is considered to be a special circumstance. Therefore punitive costs are justified against the first respondent.

[23] In the result I make the following order;

23.1. Interdicting the first respondent, and it's officials, and the second to fifty seventh respondents from preventing the applicant's employees, replacement employees, suppliers, customers and the general public access to the applicant's business situated at Stand 82, 9th Street, Babelegi Industrial Park, Pretoria (and more specifically the main entrance and exit gates, all pedestrian gates and other gates);

23.2. Interdicting and restraining the first respondent, and it's officials, and the second to fifty seventh respondents from causing malicious damage to the applicant's property and from intimidating, harassing, assaulting or threatening to assault the applicant's employees, replacement employees, suppliers, customers and the general public and from unlawfully interfering with the applicant's business operations in any way whatsoever and furthermore refraining from co­ opting any third party to do so;

23.3. An order directing the first respondent, and it's officials, and the second to fifty seventh respondents to remain at least 500 meters from the premises of the applicant situated at Stand 82, 9th Street, Babelegi Industrial Park, Pretoria;

23.4. The first respondent is ordered to pays the applicant's costs, costs to be on the scale of attorney and client scale.

____________________

N.P. MALI

JUDGE OF THE HIGH COURT

Counsel for the Applicant: Adv. Bekker

Instructed by:

HAHN & HAHN ATIORNEYS

Counsel for the Respondents: Mr. Faku

Instructed by:

FAKU ATTORNEYS

Date of Hearing:

2 May 2017

Date of Judgment:

26 May 2017

[1] 1914 AD 221

[2] [2013] ZACC 3, 2013 (4) BCLR 431

[3] Real Estate & Trust Corporation v Central India Estates Ltd 1923 WLD 121

[4] Van Dyk v Conradie 1963(2) SA 413 SA at 418 E-F.