Sebenzi Logistics (Pty) Ltd v National Transport Movement obo Members and Others (J 633/14) [2014] ZALCJHB 451 (21 November 2014)

REPUBLIC OF SOUTH AFRICA

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG)

JUDGMENT

Reportable/Not reportable

Case no: J 633/14

In the matter between

SEBENZI LOGISTICS (PTY) LTD........................................................................................Applicant

and

NATIONAL TRANSPORT MOVEMENT.................................................................First Respondent

obo MEMBERS

THE NATIONAL BARGAINING COUNCIL

ROAD FREIGHT & LOGISTICS INDUSTRY....................................................Second Respondent

COMMISSIONER G.M.RABANYANE...................................................................Third Respondent

Heard: 13 June 2014

Delivered: 21 November 2014

Summary:

JUDGEMENT

SHAI AJ

Introduction

[1] On the 27June 2014, I made the following order:

‘It is ordered that:

(1) Any enforcement of Section 64 certificate incorrectly dated 14 April 2014 (correct date being 13 March 2014) issued by Commissioner M.G.Rabanyane under the auspices of the Second Respondent under case number GPRFBC 28871, and any industrial action relating to the said certificate is stayed pending the finalisation and determination of the Applicant’s review application filed under case number JR 515/14.

(2) Any industrial action which may have been instituted in the interim prior to the set down date of this application is stayed pending the finalisation and determination of the Applicant’s review application.

(3) There is no order as to costs.

(4) Reasons to follow in due course’.

[2] Hereunder follows the brief reasons therefore.

The facts

[3] On the 13 March 2014, the Second Respondent and Third Respondent issued a Section 64 certificate in favour of the First Respondent,

thereby providing the First Respondent with the right to strike or commence industrial action.

[4] The Applicant has now filed a review application in terms of Section 158(1) relating to the Section 64 certificate issued by the Second and Third Respondent.

[5] The Applicant has now made an urgent application seeking an order as outlined in paragraph 1 above. The application is opposed by the First Respondent,

Reasons for urgency

[6] The Applicant contented that the matter has become urgent in that the First Respondent has been given a right to strike and the latter can now serve the Applicant with its 48 hour notice at any given time where-after the First Respondent may embark on a protected strike/industrial actions in terms of Section 64 of the Labour Relations Act. In the meantime the Applicant has filed a review application in terms of 158(1) relating to the Section 64 certificate.

[7] On the other hand, it was submitted for the First Respondent that the said certificate complies with the provisions of the Labour Relations Act and that the Labour Court has no power to interfere with it unless the strike becomes violent or it unlawfully encroaches on the rights of the public. Further that, it is submitted that application for review has no prospects of success as it has no basis in law.

[8] What is clear is that the Third Respondent does not deny that it intends to put measures to embark on strike. On the other had Applicant applied to court to have the said certificate reviewed and set aside mainly because the matter in dispute was not conciliated. I determine that the matter is urgent and should be treated as such as it is clear that the Third Respondent may put measures to embark on strike whereas the validity of Section 64 certificate which would be the basis of the said strike is in dispute.

Merits

[9] The requirements for obtaining a final order were outlined in the well-known case of Setlogelo v Setlogelo 1914 AD 221 at 227 as follows:

‘The requisites for the right to claim an interdict are well known; a clear right, injury actually committed or reasonably apprehended, and the absence of a similar protection by any other ordinary remedy’.

[10] It is common cause between the parties that the First Respondent had been provided with a right to strike and thus can provide the Applicant with its 48 hour notice of such strike at any given time. It was further argued for the Applicant that in the absence of a Labour Court order staying the enforcement of the Section 64 certificate the Respondent will exercise its rights in terms of Section 64 certificate, which certificate is currently under review in the Labour Court as the issuance of the same is said to have constituted an irregularity.

[11] The Respondent has not denied the intended enforcement of the said certificate except to submit that the said certificate is valid and the court has no power to interfere therewith.

[12] From the papers it appears that the application for review is diligently pursued by the Applicant.

[13] The Applicant submitted that it is now put in a state of urgency where it needs to stay any enforcement of the certificate in order to allow the application for review to be heard and be decided upon by the court. The Respondents on the other hand submitted that the stay of the certificate pending review will encroach on its rights to engage in a procedural industrial action and the need to resolve issues expeditiously.

[14] The Applicant further submitted that it is unable to obtain a proper redress, by following other channels and that compliance with prescribed time frames will make proper redress impossible as the Applicant can receive 48 hour notice at any given time. The Respondent submitted that the Applicant has other avenues viz continue to negotiate with the Respondent. Further that, the

application for review has no legal basis as the certificate merely confirms that the dispute remains unresolved at the conciliation

proceedings.

[15] What is clear to me is that Section 64 certificate has been issued and giving the Respondent the right to embark on procedural

industrial action. The Respondent has not denied this intention. Meanwhile, the Applicant has applied for the review of the certificate on the basis that the issuance thereof constitutes an irregularity. This point or claim cannot be decided in this matter. It appears to me that the Applicant has no other remedy other than to approach the court to stay the certificate while the issue of the validity of the Section 64 certificate is diligently pursued in that it and lodged 3 days after the issuance of the said certificate. The

Respondent has not disputed this fact.

[16] I am of the view that a proper case of the relief has been made.

[17] In the premise I make the following order:

(a) Any enforcement of Section 64 certificate incorrectly dated 14 April 2014 (correct date being 13 March 2014) issued by Commissioner M.G. Rabanyane under the auspices of the Second Respondent under case number GPRFBC 28871, and any industrial action relating to the said certificate is stayed pending the finalisation and determination of the Applicant’s review application filed under case number JR 515/14.

(b) Any industrial action which may have been instituted in the interim prior to the set down date of this application is stayed pending the finalisation and determination of the Applicant’s review application.

(c) There is no order as to costs.”

__________________

Shai AJ

Acting Judge of the Labour Court of South Africa

APPEARANCES

For the Applicant: Yvette Bosch Attorneys

For the Respondent: Fluxmans Attorneys