Tiger Consumer Brands Limited v African Meat Industry and Allied Trade Union (AMITU) and Others (D588/2021) [2021] ZALCJHB 315 (3 October 2021)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case No: D 588/2021

In the matter between:

TIGER CONSUMER BRANDS LIMITED Applicant

and

AFRICAN MEAT INDUSTRY AND ALLIED

TRADE UNION ("AMITU") First

Respondent

INDIVIDUAL RESPONDENTS WHO ARE

MEMBERS OF AMITU Second

Respondent

Heard: 29 September 2021

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 the hand-down is deemed to be on 03 October 2021 at 10:00

JUDGMENT

TLHOTLHALEMAJE, J

Introduction and Background:

[1] The applicant approached this Court seeking an interim order on an urgent basis to declare the industrial action contemplated by, alternatively, embarked upon by the First to Further Respondents to be unlawful and unprotected.

[2] The application before the Court culminates from the dust that has since settled after the mayhem and destruction flowing from the civil unrest in Kwazulu-Natal and Gauteng Provinces during 9 – 18 July 2021.

[3] The applicant is a packaged goods company, and a large food producer. It provides relevant product solutions for the food service and business environment. It operates nationally with various regions which are in turn divided into areas. The premises affected by the intended strike action are in eThekwini.

[4] During the civil unrest in Kwazulu-Natal, the applicant like all other businesses, was forced to temporarily close its operations or to suspend its operations. The applicant’s stock losses flowing from the unrest which was accompanied by wanton looting and the suspension of operations in both Kwazulu-Natal and Gauteng, are in the region of R150 million. In a media statement issued by the then Minister of Finance on 28 July 2021, the costs of the carnage to businesses in eThekwini alone is estimated at R15 billion.

[5] As a result of the unrest, the second to further respondents (Employees), were unable to tender or render their normal services to the applicant, resulting in them not being remunerated for the week ending 25 July 2021. The applicant, in what it considered to be a benevolent attempt not to prejudice the Employees, then informed them that they would be remunerated on the basis that their leave days would be reduced. Thus, the Employees were to utilise their annual leave days to remunerate them for the period that they were unable to render their services.

[6] Aggrieved at what they considered to be a unilateral change to their terms and conditions of employment, the Employees as assisted by AMITU then referred a dispute to the Commission for Conciliation Mediation and Arbitration (CCMA) in terms of section 64(4) of the Labour Relations Act[1] (LRA) on 27 July 2021. The referral was followed on 29 July 2021 by correspondence from AMITU, demanding that the applicant comply with certain demands.

[7] On 2 August 2021, AMITU issued a Strike Notice, giving the applicant 48 hours within which to meet the Employees’ demands. The demands were that the applicant should pay the Employees’ full salaries for the week ending 25 July 2021, and to credit their leave days that were utilised as payments for the week in question.

[8] In a response from the applicant’s attorneys of record, AMITU was advised inter alia that the allegations of a unilateral changes to terms and conditions of employment were denied. AMITU was further advised that the intended strike action would be unprotected, particularly since the demands related to matters governed under the Basic Conditions of Employment Act[2] (BCEA), which entitled the employees to approach this Court, rather than embark on industrial action. AMITU was advised to give an undertaking by 5 August 2021 that the strike action would not proceed, failing which an interdict would be sought.

[9] When no undertaking was forthcoming, the applicant approached this Court in eThekwini on 5 August 2021 on an urgent basis to seek an interim order declaring the strike contemplated to be unlawful. The matter came before Whitcher J on 10 August 2021, and was opposed. An interim order was subsequently issued and returnable on 8 October 2021, in terms of which the strike that took place on 4 August 2021 was declared unprotected.

[10] Subsequent to the above order, the dispute that was before the CCMA as referred on 27 July 2021 was conciliated on 23 August 2021 and 06 September 2021. The conciliating Commissioner issued a certificate of outcome on 10 September 2021, thus enabling the Employees to embark on industrial action.

[11] As a result of the certificate having been issued, AMITU issued a fresh Strike Notice on 21 September 2021, again giving the applicant 48 hours’ notice and reiterating that it had unilaterally changed the Employees’ terms and conditions of employment. The applicant’s attorneys of record responded on the same date and indicated that since the interim order was granted, the Employees’ demands that led to that intended strike and the Court order have not changed and that the strike remained unprotected. An undertaking was sought by 22 September 2021 that the strike would not proceed, failing which the Court would be approached again, and that an adverse costs order would be sought.

[12] Again, when no undertaking was forthcoming, the applicant approached the Court for interim relief. The matter initially came before La Grange J on 23 September 2021, and was postponed to 29 September 2021 in order to afford the respondents an opportunity to file answering papers and for the applicant to file a reply within certain set timelines. It was further agreed that the intended strike action would be suspended pending the determination of the application.

Evaluation:

[13] The preliminary points raised by the respondents ought to be swiftly disposed of. The first related the non-joinder of the CCMA to the extent that it had issued the certificate of outcome and facilitated the Picketing Rules. There is no merit in this point. As it was correctly pointed out by the applicant, it does not seek any relief against the CCMA to the extent that it had performed its statutory functions. Furthermore, the issuance of a certificate of outcome or the facilitation of Picketing Rules is not determinative of whether the strike action to be embarked upon is protected or not. These statutory steps to a strike are more concerned with procedural aspects, rather than with the substance of whether it is lawful or not. At the end, it is for this Court to determine whether the intended strike would in any event be protected.

[14] The second preliminary point related to urgency ought also to be disposed of to the extent that it was submitted on behalf of the respondents that urgency arose on 10 September 2021 when the certificate of outcome was issued.

[15] There is no basis to dismiss the application simply on account of this point. The applicant in its founding affidavit has set out the basis upon which it was said that the matter is urgent as required under the provisions of Rule 8 of the Rules of this Court. It has fully set out the reasons for urgency, and why urgent relief is necessary[3].

[16] There is no basis for any conclusion to be reached that the urgency claimed in this case is also self-created, and worst still I fail to appreciate what possible substantial redress at a hearing in due course can be said to be available to the applicant, when the strike was imminent in the light of the Strike Notice issued on 21 September 2021. The fact that the applicant approached this Court on 22 September 2021 further demonstrates the haste with which the applicant had approached the Court. Accordingly, I am satisfied that the application deserves the urgent attention of this Court.

[17] Insofar as the merits of this application are concerned, it is my view that in the light of the interim order granted by Whitcher J on 10 August 2021, with the return date being 08 October 2021, there is clearly no necessity for this Court at this stage to even venture into the merits. This is so in that since that interim order, and despite various processes at the CCMA, the substance of the Employees demands has not changed one bit. The demands leading to the first and second Strike Notice are essentially the same.

[18] If ever there was any doubt about the similarities in the demands, this was put to rest by the respondents’ own concessions that indeed the difference between the two Strike Notices is that of process, in that unlike with the first Strike Notice, they are now armed with a certificate of outcome and agreed Picketing Rules. It again ought to be stated that the statutory obligations of the CCMA have not altered the texture, tone and substance of the demands that led to the strike action being declared unprotected by Whitcher J on 10 August 2021. Thus to the extent that there is a return date pending, the second strike notice is clearly academic, and does not entitle the respondents to embark on a strike action. The lawfulness of that strike is only to be determined on 8 October 2021.

[19] It follows therefore that it is not necessary for this Court to determine the merits of this application nor issue a further interim order as sought by the applicant in the light of the return date. To do so would simply be a duplication of the order issued by Whitcher J. At this stage of the proceedings, this Court for the purposes of the application before it, can only but confirm that pending the return date, the respondents are prohibited from embarking on any industrial action based on their demands as contained in the second Strike Notice.

[20] Insofar as the issue of costs is concerned, I agree that the applicant was unnecessarily burdened costs in having to approach the Court yet again, in circumstances in which it had already obtained an interim order, and where the return date was just less than two weeks away. These unnecessary costs could have been avoided, and it is my view that these should be determined with the merits on the return date.

[21] Accordingly, the following order is made;

Order:

1. The non-compliance with the forms and service contemplated in the Rules of this Court is condoned and this matter is heard as one of urgency in terms of Rule 8 of the Rules of this Court.

2. Any industrial action contemplated by the First, Second to Further Respondents flowing from the Strike Notice dated 21 September 2021, remains unprotected as per the order of Whitcher J granted on 10 August 2021 under case number D 488/2021.

3. The costs of this application are to be determined on the return date under case number D 488/2021.

Edwin Tlhotlhalemaje

Judge of the Labour Court of South Africa

APPEARANCES:

For the Applicant: Adv.

Z Ngwenya. (Heads of Argument drafted by FA Boda SC), instructed by Cliffe Dekker Hofmeyr INC

For the First – Second Respondents: Mr. FG Mkhwanazi, General Secretary - AMITU

[1] Act 66 of 1995, as amended

[2] Act 75 of 1997, as amended

[3] Jiba v Minister: Department of Justice and Constitutional Development and Others (2010) 31 ILJ 112 (LC) at para 18; See Maqubela v SA Graduates Development Association and Others (2014) 35 ILJ 2479 (LC) at para 32, where it was held; ‘Whether a matter is urgent involves two considerations. The first is whether the reasons that make the matter urgent have been set out and secondly whether the applicant seeking relief will not obtain substantial relief at a later stage. In all instances where urgency is alleged, the applicant must satisfy the court that indeed the application is urgent. Thus, it is required of the applicant adequately to set out in his or her founding affidavit the reasons for urgency, and to give cogent reasons why urgent relief is necessary. …’

[3] Jiba v Minister: Department of Justice and Constitutional Development and Others (2010) 31 ILJ 112 (LC) at para 18; See Maqubela v SA Graduates Development Association and Others (2014) 35 ILJ 2479 (LC) at para 32, where it was held;

‘Whether a matter is urgent involves two considerations. The first is whether the reasons that make the matter urgent have been set out and secondly whether the applicant seeking relief will not obtain substantial relief at a later stage. In all instances where urgency is alleged, the applicant must satisfy the court that indeed the application is urgent. Thus, it is required of the applicant adequately to set out in his or her founding affidavit the reasons for urgency, and to give cogent reasons why urgent relief is necessary. …’