Nyambi and Others v H C Shaik Investment CC and Another (J1471/17) [2017] ZALCJHB 260; (2017) 38 ILJ 2806 (LC) (5 July 2017)

Nyambi and Others v H C Shaik Investment CC and Another (J1471/17) [2017] ZALCJHB 260; (2017) 38 ILJ 2806 (LC) (5 July 2017)

The court found that the applicants have a suitable alternative remedy available under the LRA: they can initiate a primary strike against the first respondent and, if necessary, a secondary strike against the second respondent, provided statutory requirements are met. The economic pressure exerted by such a strike would be indistinguishable from a primary strike against the second respondent. The applicants did not demonstrate why this alternative was inadequate. The court distinguished the present case from De Klerk v Project Freight Group CC, noting that the applicants are not prevented from utilising strike action and that obtaining an interdict is not a prerequisite for exercising...

Citation
[2017] ZALCJHB 260
Parties
Applicant: Jimmy Nyambi & 14 Others; Respondent: H C Shaik Investment CC; Respondent: Nampak Glass (Pty) Ltd
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
5 July 2017
Case Number
J1471/17
Procedural Posture
Urgent Application / Application for Urgent Interdict Pending Arbitration
Outcome
Application dismissed.
Judges
Lagrange
Legal Topics
Unilateral Change to Terms and Conditions, Protected Strike Action, Temporary Employment Service, Arbitration Pending, Alternative Remedy
Labour Law Civil Procedure Unilateral Change to Terms and Conditions Protected Strike Action Temporary Employment Service Arbitration Pending Alternative Remedy

Case Brief

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Parties

Jimmy Nyambi & 14 Others

Applicant

H C Shaik Investment CC

Respondent

Nampak Glass (Pty) Ltd

Respondent

Procedural Posture

Urgent Application / Application for Urgent Interdict Pending Arbitration

Legal Issues

  1. 1 Whether the applicants are entitled to an urgent interdict preventing unilateral changes to terms and conditions of employment pending the outcome of an arbitration on employment status.
  2. 2 Whether the existence of a suitable alternative remedy precludes the granting of the interdict.
  3. 3 Whether the applicants' right to strike under section 64(4) of the LRA is affected by uncertainty regarding the true employer.

Ratio Decidendi

The court found that the applicants have a suitable alternative remedy available under the LRA: they can initiate a primary strike against the first respondent and, if necessary, a secondary strike against the second respondent, provided statutory requirements are met. The economic pressure exerted by such a strike would be indistinguishable from a primary strike against the second respondent. The applicants did not demonstrate why this alternative was inadequate. The court distinguished the present case from De Klerk v Project Freight Group CC, noting that the applicants are not prevented from utilising strike action and that obtaining an interdict is not a prerequisite for exercising...

Court Disposition

Application dismissed.

Orders

  • The application is heard as a matter of urgency and non-compliance with Court Rules pertaining to service and time periods is condoned.
  • The application is dismissed.