Swissport South Africa (Pty) Ltd v National Transport Movement and Another (J2306/16) [2016] ZALCJHB 404 (18 October 2016)

REPUBLIC OF SOUTH AFRICA

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Not Reportable

Case No: J2306/16

In the matter between:

SWISSPORT SOUTH AFRICA (PTY) LTD Applicant and NATIONAL TRANSPORT MOVEMENT THOSE INDIVIDUAL EMPLOYEES LISTED IN ANNEXURE “A” TO THE NOTICE OF MOTION 1st Respondent 2nd Respondent HEARD: 06 October 2016 DELIVERED: 18 October 2016

Molahlehi J

Introduction

[1] On 6 October 2016 this court postponed this urgent application pending judgement. The strike action which the respondents had planned for 7 October 2016 was suspended pending judgment.

[2] The applicant in its notice of motion sought an interim interdict. At the beginning of the hearing the court sought the consent of the parties to have the matter determined on a final rather than interim basis. This approach was informed by the fact that the respondents had filed their answering papers. Although he finally agreed to the approach, the applicant’s counsel did seek to persuade the court that they be afforded an opportunity to file their replying affidavit. The applicant did approach the respondents in that regard before the hearing but they refused to consent thereto.

[3] In preparation of judgment, as was promised, I realised that it would not serve the interest of justice to determine the matter without affording the applicants an opportunity to reply to the respondent’s answering affidavit. It is for this reason that I have decided to consider the application on the basis of the prayers in the applicant’s notice of motion, in terms of which it sought an interim interdict. I have also in this regard arranged with the Registrar to have an expedited return day for the hearing of the matter.

[4] I accordingly, proceed to deal with the matter on the basis of an application for an interim interdict. In this respect having read the papers I am satisfied that the applicant has made out a case for an urgent interim order.

Order

In the premises the following order is accordingly made:

1. The provisions of the rules for the conduct of proceedings in the Labour Court relating to times and manner of service, are dispensed with, and the matter is dealt with as one of urgency in terms of Rule 8 of the Rules.

2. The non-compliance with the 48 hours’ notice as required by sections 68(2) of the Labour Relations Act 1995 is condoned.

3. The intended strike action by the Respondents which was planned to commence on Friday 7 October 2016 is unlawful and unprotected in terms of the Labour Relations Act 66 of 1995 ( the LRA).

4. The First Respondent to Further Respondents are interdicted and restrained from participating in such intended strike and/ or any

conduct in contemplation of such unlawful and unprotected strike.

5. The First to Further Respondents are interdicting and restrained from in any way:

5.1 Interfering with the smooth flow of the Applicant’s business and or from interfering with, or obstructing access to and exit from the Applicant’s premises.

5.2 Inciting or causing damage to the Applicant’s property.

6. The prayers set out in paragraphs 1 to 5.2 herein above are immediately operative pending the outcome of the final adjudication of the application on 4 November 2016.

7. The applicant shall file its replying affidavit by 19 October 2016.

8. The parties shall each file their heads of argument by 28 October 2016.

9. The service of the rule nisi is to be served on the First to Further respondents by the Applicants’ attorneys by sending a copy of this order to the First Respondent’s facsimile number.

_____________________

Molahlehi E

Judge of the Labour Court, South Africa

Appearances:

For the Applicant: Mr O M Molatudi

Instructed by: Hogans and Lovells (SA)

For the Respondent: National Movement of Transport