LFC Milling (Pty) Ltd v National Emancipated & Allied Workers Union of South Africa and Others (2721/2021) [2021] ZAFSHC 235 (5 October 2021)

IN THE HIGH COURT OF SOUTH AFRICA

FREE STATE DIVISION, BLOEMFONTEIN

Case no: 2721/2021

In the matter between:

LFC MILLING (PTY)Ltd Applicant

and

NATIONAL EMANCIPATED & ALLIED

WORKERS UNION OF SOUTH AFRICA First Respondent

T LENEPA N.O. Second Respondent

MDITHERI JOHANNES KHOHLOKOANE N.O . Third Respondent

MOTHLALENTWA JOHANNES KHOHLOKOANE N.O. Fourth Respondent

LUCKY PATRICK MOLUNGOA Fifth Respondent

ALL EMPLOYEES OF APPLICANT PRESENTLY

INVOLVED IN STRIKE ACTION Sixth Respondent

CORAM: CL PAGE AJ

HEARD ON: 02 September 2021

DELIVERED ON: 05 October 2021

INTRODUCTION

[1] On 16 June 2021 the Applicant launched an urgent application for an order interdicting and restraining the Respondents, during protest or strike action, from committing unlawful conduct which constitutes a criminal act or violation of fundamental rights of individuals in the form of damage to property, assault of the Applicant, its management, third persons including visitors, suppliers, invitees, permanent and temporary employees.

[2] The aforesaid relief was granted by the Honourable Daffue ADJP by way of a rule nisi and the Applicant now seeks confirmation of the order.

[3] The Respondents are opposing the confirmation of the rule nisi.

THE JURISDICTION OF THE HIGH COURT

[4] There is a dispute between the parties on their papers related to the validity of a strike action and a protected lock-out and it is dealt with by the parties in some detail. This industrial action dispute between the parties forms the backdrop against which these proceedings are before the court.

[5] Having regard to what is set out in the founding papers of the Applicant, it is clear that its case is purely based on the averred criminal conduct and conduct violating fundamental rights during and in the course of the industrial action between the parties.

[6] The Applicant is not seeking an order prohibiting a strike nor does it seek an order validating the existing industrial action proceedings between the parties.

[7] Section 68 (1)(a) of the Labour Relations Act 65 of 1995 (LRA) provides that the Labour Court has exclusive jurisdiction “to grant an interdict or order to restrain any person from participating in a strike or any conduct in contemplation or in furtherance of a strike”.

[8] The Respondent, in raising the point in limine disputes the jurisdiction of the High Court, placing reliance on Section 68(1) of the LRA.

[9] The Respondent contends that the issue in dispute between the parties relates to or arose from employment and labour issues and as such they invoke Section 157(2)(b) of the LRA which deals with jurisdiction.

[10] I quote the relevant part of Section 157 of the LRA below:

“157. Jurisdiction of Labour Court

(1) Subject to the Constitution and section 173, and except where this Act provides otherwise, the Labour Court has exclusive jurisdiction in respect of all matters that elsewhere in terms of this Act or in terms of any other law are to be determined by the Labour Court.

(2) The Labour Court has concurrent jurisdiction with the High Court in respect of any alleged or threatened violation of any fundamental right entrenched in Chapter 2 of the Constitution of the Republic of South Africa, 1996, and arising from—

(a) employment and from labour relations;

(b) any dispute over the constitutionality of any executive or administrative act or conduct, or any threatened executive or administrative act or conduct, by the State in its capacity as an employer;”

[11] The section, in no uncertain terms, states that the Labour Court has exclusive jurisdiction in respect of all matters governed by the LRA. It further, clearly confirms that the Labour Court and the High Court has concurrent jurisdiction in respect of any alleged or threatened violation of any fundamental right.

[12] The Respondent contends that, according to the pleaded facts of the Applicant, it should be clear that the Applicant had not been in receipt of any notice from the First Respondent in terms of S 64(1)(b) and that when the Applicant issued a lock out, it was not in response to an unprotected strike or any conduct envisaged in section 68(1) in which case the Labour Court has exclusive jurisdiction. It is argued that the High Court would therefore not be competent to entertain this application.

[13] The relevant portion of Section 68 of the LRA is quoted here below:

“68. Strike or lock-out not in compliance with this Act

(1) 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—

(a) to grant an 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;

[14] As mentioned above, the parties have dealt with their existing labour dispute in some detail but what remains clear from the Applicant’s papers is that it does not require this court to interdict persons from participating in a strike or to decide on the validity of a lock-out. The Respondent unfortunately seems to understand the Applicant’s case to be within the context of S 68, in which case the Labour Court would have exclusive jurisdiction. This is not a correct perception of the Applicant’s case.

[15] The High Court, has concurrent jurisdiction with the Labour Court in the circumstances of this case as provided for in S 157.

[16] I confirm that the point in limine therefore does not succeed.

THE APPLICANT’S CASE:

[17] The nature of the Applicant’s business is the manufacturing and delivery of maize meal and related products.

[18] A strike action commenced on 14 June 2021. On 15 June 2021, according to

the Applicant’s papers, the strike action turned violent. Roadways were blocked, tyres burnt, access was refused to vehicles, other persons and employees were threatened. A minibus taxi, transporting employees to work was under attack. Contractors were prevented from entering the Applicant’s premisses. An alternative gate for access to the employees was blockaded. The South African Police Services assisted but after they left, the averred criminal acts and violation of fundamental human rights continued. The aforementioned conduct is attested to in the founding affidavit

[19] The Applicant attaches photographs and relevant documents as proof of the

the incidents referred to in its founding papers as well as documents in support of an existing, pending industrial action.

[20] A confirmatory affidavit is filed by Pieter Jacobus Theron who witnessed the incidents mentioned in the Applicant’s founding affidavit.

THE RESPONDENT’S CASE

[21] It is the Respondent’s case that the Applicant created “untruthful and fictitious and fabricated facts which will accord with the provisions of S 157(2) of the LRA “that would enjoin” the High Court to deal with the matter and grant an order along the terms of the Applicant’s motion.

EVALUATION

[22] The Respondents deny the validity of the industrial actions as is mentioned supra. It is noteworthy that the Respondents do not deal with the specific allegations in the Applicant’s founding papers in detail. The Respondents present no more than a bare denial of the averments by the Applicant.

[23] The Applicant has attached various documentary proof in the form of photographs of the averred unlawful conduct and documents which supports the averments of an industrial action. The founding papers are supported by a confirmatory affidavit of P J Theron.

[24] The Respondent alleges misrepresentation and fabrication of facts which would allow for the High Court to have jurisdiction. Certainly, the Respondent may have given substance to its case. The First Respondent deny any strike action and avers that the lock-down just happened and was unlawful preventing the Respondents from entering the work premisses. These averments are made in the answering affidavit of the First Respondent without any confirmation whatsoever. The First Respondent has not presented any substantive facts which places the Applicants case genuinely in dispute.

[25] In motion proceedings the trite Plascon Evans test should be applied where disputes of fact have arisen on affidavits. An interdict may be granted if the facts averred in the applicant’s affidavit, which have been admitted by the respondent together with the facts alleged by the respondent justifies such an order. The exception to the general rule is where allegations or denials of the respondent are so far-fetched or clearly untenable that the Court is justified in rejecting them merely on the papers.

[26] In John Cecil Wightman t/a JW Construction v Head/our Pty Ltd & Another (66/2007) [2008] ZASCA 6 (10 March 2008) the following was held:

“A real, genuine and bona fide dispute of fact can exist only where the court is satisfied that the party who purports to raise the dispute has in his affidavit seriously and unambiguously addressed the fact said to be disputed. There will of course be instances where a bare denial meets the requirement because there is no other way open to the disputing party and nothing more can therefore be expected of him. But even that may not be sufficient if the fact averred lies purely within the knowledge of the averring party and no basis is laid for disputing the veracity of accuracy of the averment. When the facts averred are such that the disputing party must necessarily possess knowledge of them and be able to provide an answer (or countervailing evidence) if they be not true or accurate but, instead of doing so, rests his case on a bare or ambiguous denial the court will generally have difficulty in finding that the test is satisfied.”

[27] The Respondent’s version on the papers are improbable and implausible and it has not raised a genuine and bona fide material dispute of fact related to the conduct, which is sought to be interdicted, namely assault and malicious damage to property, intimidation and the violation of fundamental rights of individuals.

[28] The Applicant’s version prevails, and the Respondents version is rejected.

[29] It is trite that the requirements for the granting of a final interdict are a clear right, an injury committed or reasonably apprehended and no other suitable remedy.

[30] The Applicant has a clear right to ensure a safe working environment and workplace for employees, service providers and to operate its business without interference. The Respondents as proven on the papers have been involved in the conduct averred by the Applicant. The said conduct clearly caused harm to the Applicant and remains an apprehension of harm which may be committed in the future. The Applicant has no suitable alternative remedy.

[31] I make the following order:

1. The Rule Nisi is confirmed with costs, inclusive of the reserved costs of 29 July 2021.

C L PAGE AJ

For the Applicant: Adv MC Louw

Instructed by: SYMINGTON & DE KOK ATTORNEYS

SYMINGTON & DE KOK BUILDING

169B NELSON MANDELA DRIVE

WESTEDENE

BLOEMFONTEIN

For the Respondents: Adv Mashilo Shadrack Sebola

Instructed by: SEBOLA NCHUPETSANG SEBOLA INC

C/O SMLOZANA ATTORNEYS

SUITE NO B Property Park

60 Kellner Street, Westedene

BLOEMFONTEIN.