SSG Security Solutions (Pty) Ltd v Academic and Professional Staff Association (APSA) and Another (J 1456/21) [2022] ZALCJHB 68 (28 March 2022)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not reportable

Case No: J 1456/21

In the matter between:

SSG SECURITY SOLUTIONS (PTY) LTD

Applicant

and

ACADEMIC AND PROFESSIONAL STAFF

ASSOCIATION (APSA)

First Respondent

MEMBERS OF THE FIRST RESPONDENT

(COLLECTIVELY) LISTED IN ANNEXURE “A”

OF THE NOTICE OF MOTION .

Second Respondents

Heard:

9 March 2022

Delivered: This judgment was handed down electronically by circulation to the parties' legal representatives by email and publication on the Labour Court’s website. The date and time for hand-down is deemed to

be on 28 March 2022 at 09:00

JUDGMENT

TLHOTLHALEMAJE, J

Introduction:

[1] These proceedings concerns a return date in which the applicant seeks confirmation of the rule nisi issued by this Court on 22 November 2021. In terms of the order, the Court (per Mokoena AJ), had inter alia declared the industrial action embarked upon by the second respondents (the employees) to have been unprotected.[1] The first respondent union, (APSA), acting in its interests and those of its members, had opposed the confirmation of the rule nisi.

Background:

[2] The applicant is a corporate entity registered in terms of the laws of the Republic of South Africa. It provides security services to various clients throughout the Republic and has offices in Thabazimbi

as a service point for its clients in the Zondereinde Mine, where it provides guarding services.

[3] On 11 November 2021 the applicant suspended one of its employees (Mr Doctor Makoka) on allegations of misconduct. On the same date, Makoka was served with a notice to appear before an internal enquiry on 19 November 2021 to respond to the allegations of insubordination; inciting other employees to disobey a legal and lawful instruction; and bringing the name of the applicant into disrepute.

[4] Following the above events, the applicant subsequently received information that the employees were contemplating engaging in an industrial action on account of the disciplinary steps taken against Makoka. On 17 November 2021, the applicant sent communication to the employees informing them that the intended industrial action would be unlawful as it would be in contravention of the company’s codes and the provisions of the Labour Relations Act[2] (LRA).

[5] Notwithstanding the above, the employees according to the applicant commenced with their industrial action on 18 November 2021 by refusing to report for their day shift and assuming duties. The applicant on the same date issued an ultimatum calling upon the employees to return to their respective duties by 12h00 on the same date. The employees failed to heed the ultimatum, leading to a second and final ultimatum being issued at about 15h00 on the same date.

When the employees failed to heed the ultimatum, they were then suspended on the same date.

[6] According to the applicant, the employees returned to the work premises on 19 November 2021 and had continued with the illegal industrial action. It is alleged that the employees in the course of their unlawful action, also intimidated other employees who did not join the strike.

[7] The applicant initially approached the Court on an urgent basis on 19 November 2021 and had set the matter down on the same date. Mahosi J was not satisfied with the notice period of service and had removed the matter from the roll. Service was then effected on the APSA and the employees on 20 November 2021, with the matter enrolled for 22 November 2021. On the hearing date, APSA had filed an answering affidavit. The rule nisi was nonetheless granted.

The Submissions and evaluation:

[8] The applicant contended that the industrial action is unlawful on account of the respondents’ failure to comply will be legislative prescripts in terms of section 64 of the LRA. This is since the employees did not refer a dispute in respect of their demands to the Commission for Conciliation Mediation and Arbitration (CCMA) nor was a prerequisite strike notice issued for the purposes of compliance with the provisions of section 64 of the LRA.

[9] The respondents do not dispute that the employees engaged in some form of industrial action. Their main contention is that they had merely gathered in order to formulate a formal memorandum of grievances which they intended to deliver to applicant on 18 November 2021. The employees were however taken aback when the members of the applicant’s Casual Reaction Unit confronted them and shot rubber bullets at them, resulting in some of them sustaining injuries.

[10] In opposing the confirmation of the rule nisi, the applicants raised no less than twelve (12) preliminary points, most of which are nothing other than a futile attempt at being overly technical. All of these points lack any form of substance. The only points worthy of any attention of this Court are;

The locus standi of the deponent to the founding affidavit:

[11] The respondents challenged the locus standi of Ms Marinda Olivier, who is the applicant’s Group HR/IR Manager, to depose to the founding affidavit. Olivier had averred

that she was authorised to depose to the affidavit. This preliminary point is perplexing in the light of the principles set

out by the Supreme Court of Appeal (SCA) in Ganes and Another v Telecom Namibia Ltd[3]. Why then is this Court burdened with the same preliminary points that have been settled in law is beyond comprehension.

Alleged non-compliance with Rule 6(5)(a) of the Rules of the Court.

[12] The complaint was that since the employees were suspended with immediate effect on 18 November 2021, the service of the Notice of Motion and the application on them were only effected through being placed on notice boards, and therefore the employees were not properly served. This complaint is again without merit. As already stated, the application was initially served on APSA and the employees on 19 November 2021, with the matter being enrolled on the same day. It was removed from the roll as the respondents were not afforded the required 48 hours’ notice in accordance with section 68(2) of the LRA. In the service affidavit, Ms Lerato Kungoane, an attorney and partner at the applicant’s attorneys of record had averred that service was effected on the APSA by WhatsApp, by email, and on the individual employees by affixing copies of the application onto the notice boards. Service was effected on 20 November 2021, and the matter was set-down for a hearing on 22 November 2021.

[13] APSA acting on behalf of the employees was able to file a voluminous answering affidavit together with all the ill-conceived preliminary points on 22 November 2021, and on the date that the matter was heard. I therefore fail to appreciate what possible prejudice the respondents could have suffered under the circumstances, and clearly

this preliminary point lacks merit.

The merits:

[14] In regards to the merits, it is trite that on the return date, the Court is required to determine the substantive merits of the applicant’s claim, and to establish whether a final order ought to be granted. Thus the Court must be satisfied that a proper case has been made out for each facet of the relief sought.[4]

[15] In Ripple Effect 40 (PTY) LTD t/a Mkuze Bus Service v SATAWU and Others[5], the Court expressed the view that on the return date, the respondent is obliged to show no more than that the order should not have been granted at the outset, because there was no proper case made out for that order on the papers.

[16] To the extent that factual disputes may arise from the pleadings, the approach of the Courts is that as stated in Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd[6]. Equally so, it was held in Da Mata v Otto NO[7] that;

“In the preliminary enquiry, ie as to the question whether or not a real dispute of fact has arisen, it is important to bear in mind that, if a respondent intends disputing a material fact deposed to on oath by the applicant in his founding affidavit or deposed to in any other affidavit filed by him, it is not sufficient for a respondent to resort to bare denials of the applicant's material averments, as if he were filing a plea to a plaintiff's particulars of claim in a trial action. The respondent's affidavits must at least disclose that there are material issues in which there is a bona fide dispute of fact capable of being properly decided only after viva voce evidence has been heard.”

[17] In deciding whether the rule nisi should be confirmed or discharged, the starting point is whether the industrial action took place and if so, whether it was protected or not. APSA’s contention was that there was no strike action, and that all that the employees intended to do was to hand in a memorandum of grievances and thereafter return to work.

[18] It is accepted in this case that the strike has long come and gone, and the employees have also since been dismissed. As at the return date, the dismissal dispute was ongoing before the CCMA. To the extent that the applicant is insistent that the rule nisi ought to be confirmed, the relevance of this ongoing dispute before the CCMA subsequent to the dismissal of the employees ought to be assessed within the context of what La Grange J said in Ekurhuleni Metropolitan Municipality v SAMWU and Others[8], i.e., that;

‘Sometimes, even though the conduct complained of has ended there will be a dispute over whether or not the industrial action itself was unlawful or not. In such instances it may still be important for the parties to have a final determination of this issue as this could, for example, impact on whether or not disciplinary action might validly be taken against those who participated in the action, or affect whether or not compensation for losses incurred might be obtained. In such instances, a final pronouncement by the court on the lawfulness of the action will be important.’

[19] In this case, it needs to be said from the onset that the denials by the employees that they did not embark on an unprotected strike are bare, and do not at all raise real, genuine or bona fide disputes of fact. Thus, on the Plascon - Evans principle, the applicant’s averments ought to prevail. This conclusion is based purely on the obvious facts, which are that flowing from the disciplinary steps taken against Maloka, the employees did not report for their normal duties for the day shift on 18 November 2021, resulting in two ultimatums being issued on that date, and their suspension when they failed to adhere to the final ultimatum.

[20] By virtue of the definition of ‘strike’ in section 213 of the LRA[9], the employees did not perform their normal duties on 18 November 2021, and clearly their conduct fell within the definition of a strike. Since they were however suspended on 18 November 2021, the employees could not have been on strike if they had attended to the premises on 19 November 2021. Logic dictates that suspended employees cannot be on industrial action. Further to the extent that the respondents did not at all comply with provisions of section 64(1)(a) and (b) of the LRA, it follows that the declaratory in paragraph 1.1 of the interim order that the said strike on 18 November 2021 was unprotected ought to be confirmed.

[21] To the extent that the applicant also sought interdictory and prohibitory relief under both paragraphs 1.1, 1.2, 1.4, 1.5. 1.5, 1.6 of the interim order, those parts of the order have since become moot, as the strike action has not only long ceased, but further since the employees have been dismissed. Paragraph 1.8 of the interim order has similarly become academic to the extent that APSA was ordered to take certain steps in ensuring that the employees adhered to the terms and conditions of the order.

[22] The remaining issue is whether the founding affidavit disclosed cause to find that there is evidence demonstrating that the interdictory relief related to conduct, i.e. allegations of harassment, intimidation, assault and threats to other employees by the striking employees, ought to be confirmed.

[23] In the founding affidavit at paragraph 27, it was alleged that the employees had on 19 November 2021, reported for duty and commenced with their unlawful action by intimidating other employees who had elected not to participate in the strike action. Other than the fact that there could not have been a strike on that day, there is however nothing in the founding affidavit to substantiate these allegations of intimidation or other forms of criminal or unbecoming conduct. The only attempt at any form of evidence was reference to correspondence of 19 November 2021[10], and it is not clear to whom that correspondence was addressed. Even if it was intended for the employees or the Union, all that was said in it without any attempts at providing details, was that the applicant will approach this Court for an order interdicting

employees from continuing with the strike and misconduct/criminal conduct.

[24] Clearly no case was made out for the purposes of obtaining any relief in regards to the allegations related to harassment etc by the employees. It is my view that to confirm that acts of intimidation or other unlawful conduct took place during the strike without any evidence in support of those allegations cannot in my view be correct. It is not known which employees reference was made to, nor is it known who the alleged victims of such intimidation or other criminal activities were. In such circumstances, it follows the Court cannot confirm any part of the interim order related to alleged acts of intimidation, harassment or assaults on the part of the employees.

Costs:

[25] The applicant sought an order of costs. I am however disinclined to make such an order in that the respondents are partially successful in regards to the discharge of certain parts of the interim order. To that end, the requirements of law and fairness militates against any award of costs being made.

[26] Accordingly, the following order is made;

Order:

1. The order granted under paragraph 1.1 of the interim order issued on 22 November 2021 is confirmed.

2. The orders granted under paragraphs 1.2 – 1.8 of the interim

order are discharged.

3. There is no order as to costs.

Edwin Tlhotlhalemaje

Judge of the Labour Court of South Africa

APPEARANCES:

For the Applicant:

S. Lancaster, of Lancaster Kungoane Attorneys.

For the Third Respondent:

S.M. Seima, of Seima Attorneys Incorporated.

[1] The rule nisi issued on 22 November 2021 reads as follows: 1. A rule nisi with return date, 09 March 2022 is hereby issued on which date the Respondents are called upon to advance reasons, if any, why the following should not be made a final order of court: 1.1 The strike action on which the Second Respondents’ have embarked on 18 November 2021 is declared unprotected and the Second Respondents are interdicted and prohibited from continuing with and/or participating in, promoting, encouraging or supporting such strike action; 1.2 The Second Respondents are interdicted and prohibited from calling for, orchestrating, participating in or encouraging in any way the aforesaid strike action; 1.3 The Second Respondents are interdicted and prohibited from harassing, intimidating, assaulting and/or threatening any employees of the Applicants and/or third parties; 1.4 The Second Respondents are interdicted and prevented from interfering with and/or attempting to interfere with, alternatively intimidating and/or inciting employees not participating in the industrial action to stop working; 1.5 The Second Respondents are interdicted and prohibited from interfering with the business of the Applicant; 1.6 The Second Respondents are interdicted and prohibited from commencing with and carrying on any unlawful and/or criminal conduct; 1.7 The Second Respondents are interdicted and prohibited from picketing outside of the Applicant’s alternatively from continuing with any picketing within 100 meters from the entrance of any of the premises of Zondereinde Mine; and 1.8 The First Respondent is directed to take steps as are necessary to ensure that their members adhere to the terms and conditions of the order and that they do not in any manner call for, orchestrate,

participate in or encourage in any way the aforesaid strike action, or any conduct in contemplation or in furtherance of the strike

action or any other conduct in support of the Second Respondents demands. 2. The rule nisi in paragraph 1 to 1.8 herein above serve as an interim

interdict with immediate effect prohibiting and preventing the Respondents from continuing with the unprotected strike action,

pending the return date.

[1] The rule nisi issued on 22 November 2021 reads as follows:

1. A rule nisi with return date, 09 March 2022 is hereby issued on which date the Respondents are called upon to advance reasons, if any, why the following should not be made a final order of court:

1.1 The strike action on which the Second Respondents’ have embarked on 18 November 2021 is declared unprotected and the Second Respondents are interdicted and prohibited from continuing with and/or participating in, promoting, encouraging or supporting such strike action;

1.2 The Second Respondents are interdicted and prohibited from calling for, orchestrating, participating in or encouraging in any way the aforesaid strike action;

1.3 The Second Respondents are interdicted and prohibited from harassing, intimidating, assaulting and/or threatening any employees of the Applicants and/or third parties;

1.4 The Second Respondents are interdicted and prevented from interfering with and/or attempting to interfere with, alternatively intimidating and/or inciting employees not participating in the industrial action to stop working;

1.5 The Second Respondents are interdicted and prohibited from interfering with the business of the Applicant;

1.6 The Second Respondents are interdicted and prohibited from commencing with and carrying on any unlawful and/or criminal conduct;

1.7 The Second Respondents are interdicted and prohibited from picketing outside of the Applicant’s alternatively from continuing with any picketing within 100 meters from the entrance of any of the premises of Zondereinde Mine; and

1.8 The First Respondent is directed to take steps as are necessary to ensure that their members adhere to the terms and conditions of the order and that they do not in any manner call for, orchestrate,

participate in or encourage in any way the aforesaid strike action, or any conduct in contemplation or in furtherance of the strike

action or any other conduct in support of the Second Respondents demands.

2. The rule nisi in paragraph 1 to 1.8 herein above serve as an interim

interdict with immediate effect prohibiting and preventing the Respondents from continuing with the unprotected strike action,

pending the return date.

[2] Act 66 of 1995, as amended

[3] 2004 (3) SA 615 (SCA); (2004) 25 ILJ 995 (SCA); [2004] 2 All SA 609 (SCA) para 19 where it was held that; ‘. . . it is irrelevant whether Hanke had been authorised to depose to the founding affidavit. The deponent to an affidavit in motion proceedings need not be authorised by the party concerned to depose to the affidavit. It is the institution of the proceedings and the prosecution thereof which must be authorised. In the present case the proceedings were instituted and prosecuted by a firm of attorneys purporting to act on behalf of the respondent. In an affidavit filed together with the notice of motion a Mr Kurz stated that he was a director in the firm of attorneys acting on behalf of the respondent and that such firm of attorneys was duly appointed to represent the respondent. That statement has not been challenged by the appellants. It must, therefore, be accepted that the institution of the proceedings was duly authorised. In any event, Rule 7 provides a procedure to be followed by a respondent who wishes to challenge the authority of an attorney who instituted motion proceedings on behalf of an applicant. The appellants did not avail themselves of the procedure so provided. (See Eskom v Soweto City Council 1992 (2) SA 703 (W) at 705C - J.)’ See also Reformed Presbyterian Church in Southern Africa v Minister of Police and Two Other (ECM) unreported case number CA 77/2017 of 13 February 2018 at para 17

[3] 2004 (3) SA 615 (SCA); (2004) 25 ILJ 995 (SCA); [2004] 2 All SA 609 (SCA) para 19 where it was held that;

‘. . . it is irrelevant whether Hanke had been authorised to depose to the founding affidavit. The deponent to an affidavit in motion proceedings need not be authorised by the party concerned to depose to the affidavit. It is the institution of the proceedings and the prosecution thereof which must be authorised. In the present case the proceedings were instituted and prosecuted by a firm of attorneys purporting to act on behalf of the respondent. In an affidavit filed together with the notice of motion a Mr Kurz stated that he was a director in the firm of attorneys acting on behalf of the respondent and that such firm of attorneys was duly appointed to represent the respondent. That statement has not been challenged by the appellants. It must, therefore, be accepted that the institution of the proceedings was duly authorised. In any event, Rule 7 provides a procedure to be followed by a respondent who wishes to challenge the authority of an attorney who instituted motion proceedings on behalf of an applicant. The appellants did not avail themselves of the procedure so provided. (See Eskom v Soweto City Council 1992 (2) SA 703 (W) at 705C - J.)’

See also Reformed Presbyterian Church in Southern Africa v Minister of Police and Two Other (ECM) unreported case number CA 77/2017 of 13 February 2018 at para 17

[4] Polyoak (Pty) Ltd v Chemical Workers Industrial Union & others (1999) 20 ILJ 329 (LC) at 395 para B, where it was held that; “It is trite that on the return day, the court must be satisfied that a proper case has been made out for each facet of the relief sought. Where the original papers fail to do this – because the allegations are either incomplete or strictly speaking inadmissible – the applicant should supplement them so that their deficiencies are remedied before application is made for confirmation of the rule”

[4] Polyoak (Pty) Ltd v Chemical Workers Industrial Union & others (1999) 20 ILJ 329 (LC) at 395 para B, where it was held that;

“It is trite that on the return day, the court must be satisfied that a proper case has been made out for each facet of the relief sought. Where the original papers fail to do this – because the allegations are either incomplete or strictly speaking inadmissible – the applicant should supplement them so that their deficiencies are remedied before application is made for confirmation of the rule”

[5] (D440/09) [2009] ZALCD 22 (25 June 2009) at para 16

[6] [1984] ZASCA 51; 1984 (3) SA 623 (A) at 634 and 635, where it was held that; "It is correct that, where in proceedings on notice of motion disputes of fact have arisen on the affidavits, a final order, whether it be an interdict or some other form of relief, may be granted if those facts averred in the applicant's affidavits which have been admitted by the respondent, together with the facts alleged by the respondent, justify such an order. The power of the Court to give such final relief on the papers before it is, however, not confined to such a situation. In certain instances the denial by respondent of a fact alleged by the applicant may not be such as to raise a real, genuine or bona fide dispute of fact (see in this regard Room Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd 1949 (3) SA 1155 (T) at 1163 - 5; Da Mata v Otto NO 1972 (3) SA 858 (A) at 882D - H). If in such a case the respondent has not availed himself of his right to apply for the deponents concerned to be called for cross-examination under Rule 6 (5) (g) of the Uniform Rules of Court (cf Petersen v Cuthbert & Co Ltd 1945 AD 420 at 428; Room Hire case supra at 1164) and the Court is satisfied as to the inherent credibility of the applicant's factual averment,

it may proceed on the basis of the correctness thereof and include this fact among those upon which it determines whether the applicant is entitled to the final relief which he seeks (see eg Rikhoto v East Rand Administration Board and Another 1983 (4) SA 278 (W) at 283E - H). Moreover, there may be exceptions to this general rule, as, for example, where the 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…”

[6] [1984] ZASCA 51; 1984 (3) SA 623 (A) at 634 and 635, where it was held that;

"It is correct that, where in proceedings on notice of motion disputes of fact have arisen on the affidavits, a final order, whether it be an interdict or some other form of relief, may be granted if those facts averred in the applicant's affidavits which have been admitted by the respondent, together with the facts alleged by the respondent, justify such an order. The power of the Court to give such final relief on the papers before it is, however, not confined to such a situation. In certain instances the denial by respondent of a fact alleged by the applicant may not be such as to raise a real, genuine or bona fide dispute of fact (see in this regard Room Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd 1949 (3) SA 1155 (T) at 1163 - 5; Da Mata v Otto NO 1972 (3) SA 858 (A) at 882D - H). If in such a case the respondent has not availed himself of his right to apply for the deponents concerned to be called for cross-examination under Rule 6 (5) (g) of the Uniform Rules of Court (cf Petersen v Cuthbert & Co Ltd 1945 AD 420 at 428; Room Hire case supra at 1164) and the Court is satisfied as to the inherent credibility of the applicant's factual averment,

it may proceed on the basis of the correctness thereof and include this fact among those upon which it determines whether the applicant is entitled to the final relief which he seeks (see eg Rikhoto v East Rand Administration Board and Another 1983 (4) SA 278 (W) at 283E - H). Moreover, there may be exceptions to this general rule, as, for example, where the 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…”

[7] 1972 (3) SA 858 (A) at 882G

[8] CASE NO. J 793-2010 (Delivered on 18 February 2011, per La Grange J) at para 19

[9] “strike” means the partial or complete concerted refusal to work, or the retardation of obstruction of work, by persons who are of have been employed by the same employer or by different employers, for the purpose of remedying a grievance or resolving a dispute in respect of any matter of mutual interest between employer and employee, and every reference to “work” in this definition includes overtime work, whether it is voluntary or compulsory;

[10] Annexure ‘H’ to the Founding Affidavit