Sawash (Pty) Ltd and Others v Independent Catering Commercial Farm Workers Union (ICCAFAWU) and Others (846/06) [2006] ZANWHC 57 (8 September 2006)

IN THE HIGH COURT OF

SOUTH AFRICA

(BOPHUTHATSWANA PROVINCIAL DIVISION)

CASE NO: 846/06

In the matter between:

SAWASH (PTY) LTD 1ST

APPLICANT

SVA ELECTRONICS (PTY) LTD 2ND

APPLICANT

SAFRON (PTY) LTD 3RD

APPLICANT

and

INDEPENDENT

CATERING

COMMERCIAL FARM

WORKERS

UNION (ICCAFAWU) 1ST

RESPONDENT

STALIM DZIVHANI 2ND

RESPONDENT

A M PLOUAMMA 3RD

RESPONDENT

62 PREVIOUS EMPLOYEES

OF THE

FIRST

APPLICANT AS LISTED IN

ANNEXURE “A” 4TH TO 65TH

RESPONDENTS

JUDGMENT

LANDMAN J:

[1] SAWASH (Pty) Ltd and 2 other companies applied ex parte on 23 June 2006 for an order interdicting the second to sixty fifth respondents (former employees of the 1st applicant) from committing acts of violence, intimidation, preventing person attending their work stations and from preventing persons entering the business premises of the applicants.

[2] An order was also sought restraining the Independent Catering Commercial Farm Workers Union (the Union) and the other respondents from coming with a distance of one kilometre of each applicant’s business premises.

[3] I granted the interim relief, save for the restriction on coming with one kilometre of the premises, and postponed the application for hearing to 26 June 2006.

[4] On 26 June 2006 an order was made by Mogoeng JP which granted all the relief sought (including the restraint on coming with one kilometre of the premises) and was made returnable on 3 August 2006. The order also operated as an interim interdict.

[5] This is the extended return date. The respondents oppose the application for relief. The first ground of opposition relates to the jurisdiction of this Court to grant an order of this nature.

[6] Mr Mokale, who appeared for the respondents, submitted that:

(a) That all labour disputes for which specific dispute resolution procedures (including conciliation, arbitration and recourse to Labour Court) are created and matters relating thereto, including interdicts of the sort which the applicants seek, constitute matters which are to be determined exclusively by the Labour Court.

(b) That it is clear that there exists a labour dispute between the applicants and the respondents and that the relief sought by the applicants flow directly from the labour dispute and in light of this fact this Court does not enjoy the jurisdiction to entertain the application. It falls within the exclusive jurisdiction of the Labour Court.

(c) Consequently, the order granted by this Court should be set aside and the applicants’ application should be dismissed with costs.

[7] Mr De Beer, who appeared for the applicant, contended that this Court has jurisdiction to entertain this matter because:

(a) The respondents were dismissed on 15 June 2006 following a disciplinary hearing on 14 June 2006.

(b) After the respondents received notice of their dismissal, they congregated outside the business premises of the applicants.

(c) The respondents proceeded to engage in illegal activities such as acts of violence and intimidations, verbal threats aimed at employees of the first applicant, physically preventing employees to enter their places of work and throwing stones at employees and passers-by.

(d) Due to the respondents’ acts and threats the employees and management of the applicants were threatened and the applicants’ ability to carry on with their business activities was in jeopardy.

[8] In my opinion the dispute between the first applicant and the respondents relates to a dispute containing an element of a labour dispute i.e the disputed dismissal of the employees and their engagement in a picket outside the premises of the 1st applicant (and the other applicants). The circumstances also relate to acts of alleged criminal conduct e.g. violence and intimidation which, although they frequently accompany picketing during a labour dispute, retain their criminal and delictual character.

[9] The latter are susceptible to the jurisdiction of the High Court. There is nothing in the Labour Relations Act 66 of 1995 which purports to oust the jurisdiction of the High Court in this connection. The difficulty arises with the relief sought. In order to preserve the peace and give effect to an interdict preventing the respondents from committing acts of violence and intimidation against others and their property it may be necessary to forbid a respondent from entering a fixed area. When a labour dispute is also involved and the applicant seeks to restrict the respondents’ freedom of mobility, right to picket or right to protest then, if the relief is appropriate, the court is placed on the horns of a dilemma. But the dilemma may be an illusory one because the applicant, by choosing to litigate in the High Court, must live with the way the High Court accommodates the dilemma. If the applicant invoked the jurisdiction of the Labour Court the dilemma may be solved more easily.

[10] However, in my view, the High Court could restrict the respondents’ freedom of movement by establishing a so-called “no go” area. But the order should provide that it terminates if and when the CCMA fixes picketing rules. In the result I am satisfied that this Court has the necessary jurisdiction to grant the relief sought.

[11] This brings me to the next ground of opposition, namely that the plaintiff has not established its case.

[12] It is trite law that in order for an applicant to obtain a final interdict must show:

(i) a clear right;

(ii) an injury actually committed or reasonably apprehended; and

(iii) the absence of similar protection by any other ordinary remedy.

[13] The deponent to the founding affidavit says that since the early morning hours of 21 June 2006, the forth to sixty fifth respondents made themselves guilty of the following behaviour (I record them in the present tense as did the deponent):

(a) They stand in front of the gates at the place of business of the first applicant and second applicant.

(b) They verbally threaten employees of the first applicant that they will assault, and/or injure and/or cause them harm if they proceed to work for the applicants, as they are requested and/or ordered to do by the applicants.

(c) They physically prevent employees to enter their place of work. They throw stones at employees and passers-by. They jump in front of oncoming vehicles which are on their way to enter the place of business of the applicants.

(d) They are therefore intimidating and threatening the employees of the applicants.

(e) They are further intimidating the employees of the applicants directly and/or indirectly, by informing them that they will be harmed, assaulted and/or injured if they go and work for the applicants and also by instigating the forth to sixty fifth respondents to commit the illegal actions that they are committing, so as to prevent the employees of the applicants to attend the workstations assigned to them and to perform their duties.

(f) Reports were received from various employees regarding the illegal actions of the respondents. They are however frightened and requested that at this stage their identities should not be disclosed. The deponent said her wishes to honour the requests in an endeavour not to compromise the safety and well-being of those employees.

(g) He anticipates that if an order is not granted there is a real and serious danger that the violence will become expanded and more serious and grievous and that people might be seriously injured and/or killed.

(h) If an order is not granted to prevent the respondents from attending the premises of the third applicant they will proceed to conduct their illegal activities there, because they are well aware that it forms part of the companies of the first and second applicants.

[14] An affidavit by Chun Fang Song and an unidentified employee were attached.

[15] The deponent to the answering affidavit responded as follows:

“I admit that the respondents did congregate outside the business premises of the first applicant and second applicant. However, I deny that we congregated in front of the gates of the premises of the first applicant and second applicant. I further deny that the respondents threatened the other employees of the first applicant or physically prevented the employees from entering the place of work or threw stones at the employees and passers-by or jumped in front of oncoming vehicles which were entering the business premises of the applicants or intimidated or threatened employees of the applicants.

Throughout the entire period, for every single hour that the respondents congregated outside the premises of the applicants, members of the South African Police Services were present. I submit that if the respondents had engaged in acts as alleged by the applicant, the respondents would have been summarily arrested and charged by the South African Police Station. Not only were none of the respondents arrested by the South African Police Services, neither the Police Services nor the applicants have laid any charge or opened any criminal case against any respondent as a result of the alleged acts of intimidation or violence suggested by the applicants. In this regard I once again refer the above Honourable Court to annexures “SD65” and “SD66” thereof.

I deny that the third respondent and I have intimidated any employees of the applicants or threatened them. I further also deny that the third respondent and I have instigated the fourth to sixty fifth respondents to commit any act which is alleged by the applicants.

I note that the applicants have not pointed out to any specific event or occurrence to substantiate their bald allegations.

I also note that the applicants have not attached any affidavits by any employees, whether such employees is a member of the first respondent or not, to substantiate their claim that the employees have been intimidated or threatened by the fourth to sixty fifth respondents or the third respondent of myself.

I deny that there were any stones thrown or that people were deliberately blocking traffic.”

[16] In reply the applicants say that that the violent and intimidating acts as described in the founding affidavit did in fact occur, but due to the fact that the respondents formed a group and acted together as such it is very difficult for the people confronted by such acts to determine exactly which person physically committed these acts of throwing stones, jumping in front of motor vehicles, shouting verbal threats and so forth.

[17] The deponent goes on to say that the behaviour and acts of the respondents was of such a serious nature that the head of security for the applicants, by name of Sarah, contacted Mrs Song and informed her that the respondents had smashed the windows of one of the security vehicles and advised Mrs Song to stay away from the applicants’ premises for her own safety.

[17] There is a clear factual dispute between the parties. The interdict sought may only be granted if the facts as stated by the respondents, together with the admitted facts in the applicants’ affidavits, justify the granting thereof.

[18] Which version is true? The versions are mutually destructive of each other. It is in situations like this that the rule in Plascon Evans comes into play. I was not asked to refer the matter to oral evidence. I am obliged to accept the respondents’ version of events.

[19] In the premises the application is dismissed, the rule is discharged and the applicant are ordered to pay the respondents costs.

____

A

A LANDMAN

JUDGE

OF THE HIGH COURT

APPEARANCES:

FOR THE APPLICANTS : ADV

DE BEER

FOR THE RESPONDENTS : ADV MOKALE

ATTORNEYS:

FOR THE APPLICANT : ANTON VAN STADEN

FOR THE RESPONDENTS : KGOMO MOKHETLE TLOU

DATE OF HEARING : 31 AUGUST 2006

DATE OF JUDGMENT : 8 SEPTEMBER 2006

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