Johannesburg Metropolitan Bus Services SOC Limited v Democratic Municipal and Allied Workers Union of South Africa and Others (J557/21) [2021] ZALCJHB 75 (2 June 2021)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: J 557/21

In the matter between:

JOHANNESBURG METROPOLITAN

BUS SERVICES SOC LIMITED Applicant

and

DEMOCRATIC MUNICIPAL AND ALLIED

WORKERS UNION OF SOUTH AFRICA

First Respondent

EMPLOYEES IN ANNEXURE “A” Second

Respondent

Heard: 27 MAY 2021

Delivered: This judgment was handed down electronically by circulation to the parties' legal representatives through email. The date and time for hand-down is deemed to be 02 June 2021.

JUDGMENT

MAHOSI, J

[1] This is an urgent application for an order to declare the strike that commenced on 03 May 2021 to be unprotected and to interdict and restrain the respondents from continuing with the strike action. Alternatively, the applicant seeks an order to interdict and restrain the respondents from continuing with the strike action pending compliance with section 95(5)(p) of the Labour Relations Act[1] (LRA) as well as the first respondent’s constitution.

[2] The matter was initially set down for hearing on 13 May 2021 before Phehane AJ. Having considered the matter, the Court delivered a judgment on 17 May 2021 in terms of which it struck the matter off the roll for lack of urgency.

[3] On 20 May 2021, the applicant filed this application and on the issue of urgency, the following submissions were made:

‘58.1 The strike is ongoing. This means that the unlawfulness in relation to the strike also persists. The court cannot stand by and allow this state of affairs to continue in circumstances where it has the power to intervene.

58.2 The applicant did not approach this Court earlier, as it was under the impression that the strike was protected because the respondent had complied with section 64 of the LRA. The applicant sought legal advice on the lawfulness of the strike, and having been advised by its attorneys on 11 May 2021 that the strike is unprotected for the reasons set out in this application, the applicant brought an urgent application without undue delay on 12 May 2021. Similarly, the applicant has brought the present application promptly following the court's judgement (J519/21).

58.3 The conduct of the respondents has negative effect on the transportation of the vulnerable members of the public who rely on this service for the daily transportation. The respondents’ conduct is victimising employees who wish to continue working, is also negatively affecting the well-being of these employees and the applicant’s operations.

58.4 The Union has been given the opportunity to intercede and provide undertakings on behalf of its members that they will comply with the law and with their contracts of employment and desist from participating in any such unprotected strike action. However, to date, they have been unable to provide such undertakings.

58.5 As has been set out above, the relief sought in this application has not been sought earlier as the applicant attempted to avoid having to approach the above Honourable Court by obtaining an undertaking from the Union on behalf of its members that they would comply with the contractual requirements and desist from participating in any such unprotected strike action. This has been to no avail.

58.6 The applicant is left with no other mechanism to interdict the strike and the unlawful conduct of respondents.’

[4] The respondents submitted, in the answering affidavit, that this application is identical to the previous application that was argued before this Court on 13 May 2021 under case number J519/21, which was struck from the roll for lack of urgency.

[5] The respondents further submitted that, save for the compliance with section 68(3), the applicant has failed to allege any changes to the circumstances surrounding the strike in order to substantiate its effort to interdict the strike for the second time. It was for this reason that the respondents submitted that the application is res judicata in respect of urgency.

[6] In its replying affidavit, the applicant denied that the matter was res judicata in respect of urgency on the basis that the previous application was struck off the roll because of non-compliance with section 68(3). Further that the judgment by Phehane AJ confined itself on pre-strike time periods insofar as urgency was concerned and did not consider that the strike was ongoing.

[7] In her judgment, Phehane AJ made the following findings:

‘[20] The applicant was aware that the certificate of outcome was issued on 4 March 2021 (as indicated in the respondents’ notice of intended strike action received on 10 March 2021).

[21] The applicant states that the “heart of this application is the Union’s failure to conduct a ballot prior to engaging in strike action.” Yet, no steps were taken by the applicant at an early stage when the notice of strike action was delivered, to approach this Court on an urgent basis. Two months later, the applicant demanded proof of the ballot from the Union, when it was not forthcoming, this application was launched.

[22] Mr. July conceded that the Founding Affidavit does not deal with what transpired between 10 March 2021 and 10 May 2021 (the date when the applicant sought proof of the ballot).

[23] The applicant's letter of 10 May 2021 does not state that it will approach this Court on an agent basis for an interim interdict to interdict the continuation of the strike action pending the conducting of the ballot. The letter states that it will approach the Court on an urgent basis to have the strike declared in contravention of the Union's constitution. The application was launched as stated above, on 12 May 2021, two days later. In my view, the time frame afforded to the respondents to oppose the application was insufficient. In view of the afore-going, I am of the view that the applicant has failed to comply with section 68(3) of the LRA.

[24] Further, that urgency is self-created.’[2]

[8] The reading of the abovementioned judgment does not support the applicant’s submission that its previous application was struck of the roll only because of non-compliance with section 68(3) or that the Court failed to consider that the strike was ongoing. It is apparent that the Court did not only make findings on the applicant’s

failure to afford the respondents 5 days notice, but further found that the urgency was self-created as a consequence of the applicant’s

failure to have brought the application at the first available opportunity. In addition, it is not disputed that the strike had

commenced when the first application was brought. As such, the court was aware that the strike was indeed continuing.

[9] The respondents correctly submitted that for the applicant to re-enrol the same application in an urgent court, it would have to demonstrate new facts, which did not exist at the time the first application was argued. In this case, the applicant has not done so. Instead, it submitted that the Court did not consider that the strike was ongoing and further that the matter remains urgent notwithstanding the judgment by the Court. The applicant clearly got the wrong of the stick about this one. In the absence of new facts surrounding the strike action, the applicant has failed to demonstrate a new trigger of urgency in this matter.

[10] To an extent that the Court has already pronounced on the urgency of this application, there is clearly no basis for this Court to deal with merits of this application on an urgent basis. It follows that the application stands to be struck off the roll for lack of urgency.

[11] Accordingly, the following order is made:

Order

1. The Court has already pronounced on the urgency of this application.

2. The application is struck off the roll for want of urgency with costs.

__________________

D Mahosi

Judge of the Labour Court of South Africa

Appearances

Counsel for the Applicant: Advocate N. Cassim

Instructed by: Werksmans Attorneys

Attorney for the respondents: Ms B. Ramji of Cheadle Thompson & Haysom Incorporated Attorneys

[1] Act 66 of 1995, as amended.

[2] J519/21, delivered on 17 May 2021