South African Municipal Workers Union and Others v Amathole District Municipality and Another (J187/21) [2021] ZALCJHB 151 (22 June 2021)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not reportable

Case no: J187/21

In the matter between:

SOUTH AFRICAN MUNICIPAL WORKERS UNION First

Applicant

19 SAMWU MEMBERS LISTED IN ANNEXURE “A”

HERETO

Second and Further Applicants

and

AMATHOLE DISTRICT MUNICIPALITY First

Respondent

DR T T MNYIMBA N.O.

Second Respondent

Heard: 1 6 March 2021

Delivered: 22 June 2021

In view of the measures implemented as a result of the Covid-19 outbreak, this judgment was handed down electronically by circulation

to the parties' representatives by email. The date for hand-down is deemed to be on 22 June 2021.

JUDGMENT

VAN AS, AJ

Introduction

[1] This is an urgent application in which the First Applicant (“SAMWU”) seeks an order interdicting and restraining the First Respondent (“the Municipality”) from disciplining the Second and Further Applicants (“the Individual Applicants”) pending the finalisation of an interpretation and application dispute which SAMWU referred to the South African Local Government Bargaining Council (“the Bargaining Council”) on 23 February 2021.

[2] The Municipality opposes the application. The Second Respondent, who is the Municipal Manager of the Municipality, abides the decision of this Court.

[3] The Municipality has raised as a point in limine that the application is defective because the deponent to the affidavit, Mr Dumisane Magagula, the Deputy Secretary of SAMWU, failed to allege in the founding papers that he was duly authorised to depose to the founding affidavit on behalf of SAMWU. I address the point in limine hereinbelow.

The material facts

[4] The Individual Applicants are all shop stewards of SAMWU whom the Municipality has charged with gross misconduct resulting from the allegation that they encouraged employees of the Municipality to participate in an unprotected strike during November and December 2020 in contravention of a Labour Court order which interdicted this unprotected strike.

[5] The Municipality did not convene a disciplinary hearing but instead notified the Individual Applicants that they had ten (10) days within which to make written submissions as to why they should not be found guilty of this misconduct.

[6] On 17 February 2020, SAMWU addressed a letter to the Municipality stating that the Individual Applicants were entitled to a formal hearing.

[7] On 19 February 2021, the Second Respondent addressed a letter to SAMWU stating that paragraph 18 of the Disciplinary Procedure Collective Agreement (“the DPCA”) was applicable and, as such, the Individual Applicants were not entitled to a formal disciplinary hearing.

[8] On 23 February 2021, SAMWU referred an interpretation and application dispute to the Bargaining Council. It is clear from the referral form that this dispute concerns the interpretation of clause 18 of the DPCA.

The point in limine

[9] Mr Van Rensburg, who appeared for the Municipality, submitted that Mr Magagula’s failure to aver that he is authorised to depose to the founding affidavit on behalf of SAMWU rendered the application fatally defective.

[10] Ms Harvey, who appeared for SAMWU, submitted that I should apply Uniform Rule of Court 7(1) which allows a party to provide proof of authorisation within ten (10) days of such authorisation being challenged on the papers.

[11] It is clear from the papers that Mr Magagula’s failure to aver such authority was nothing more than an oversight.

[12] Mr Magagula is the Deputy General Secretary of SAMWU and would therefore ex officio normally have the requisite authority to depose to the founding affidavit on behalf of SAMWU. He has deposed to a supplementary affidavit in which he has confirmed such authority and explained the oversight.

[13] In my view, the point in limine (which is highly technical in nature) has no place in labour litigation which has, as one of its primary objects, the quick and

expeditious resolution of labour disputes.

[14] The point in limine is therefore dismissed.

Urgency

[15] SAMWU has acted expeditiously in that this application was launched as soon as the Municipality refused to stay the disciplinary proceedings pending the finalisation of the arbitration proceedings.

[16] It is, in any event, clear that this application cannot be heard within the normal time periods.

[17] The I therefore find that this matter is urgent.

Evaluation of the merits

[18] The DPCA is a collective agreement. The Bargaining Council therefore has exclusive jurisdiction to arbitrate a dispute about the interpretation and application of the DPCA.

[19] The crisp issue before this Court is therefore whether the disciplinary proceedings should be stayed pending the finalisation of these arbitration proceedings.

[20] The DPCA regulates the manner in which the Municipality should discipline its employees. The DPCA is also incorporated into the contract of employment of each employee of the Municipality.

[21] It is therefore, in my view, important that there be clarity and certainty as to whether or not the Municipality can invoke clause 18 of the DPCA when disciplining shop stewards for strike related misconduct.

[22] SAMWU has a clear right, let alone a prima facie right, to an interpretation of clause 18 of the DPCA. The balance of convenience also favours SAMWU in that the Municipality could avoid a delay in disciplining the Individual Applicants by simply convening a formal disciplinary hearing.

[23] SAMWU has no reasonable alternative remedy because the Municipality has refused its request to formally discipline the Individual Applicants who have a reasonable apprehension of irreparable harm in that they may be disciplined in a manner which is in breach of both their contracts of employment and the DPCA.

[24] I therefore find that SAMWU has satisfied the requirements for an interim interdict.

Costs

[25] Since there is an ongoing relationship between the parties, there should be no order as to costs.

Order

[26] Accordingly, I make the following order:

1. The Municipality is interdicted from disciplining the Individual Applicants in accordance with the procedure contemplated in clause 18 of the Disciplinary Procedure Collective Agreement pending the finalisation of the interpretation and application dispute which SAMWU referred to the Bargaining Council on 23 February 2021 under case number HQ02/21/08/10;

2. There is no order as to costs.

__________________

M J VAN AS

Judge of the Labour Court of South Africa

Appearances:

On behalf of the Applicant: Advocate S Harvey

Instructed by: Ndou

Attorneys

On behalf of the First Respondent: Mr W Van Rensburg of Wikus van Rensburg Attorneys