United National Breweries v National Enterprises Workers Union Ya-Africa and Others (J642/24) [2024] ZALCJHB 226 (11 June 2024)

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case No: J 642/24

In the matter between:

UNITED NATIONAL BREWERIES Applicant

and

NATIONAL ENERPRISES WORKERS UNION

YA-AFRICA

First Respondent

LIST OF EMPLOYEES ATTACHED HERETO

AS ANNEXURE “A”

Second and Further Respondent

Heard: 11 June 2024

Delivered: 11 June 2024 (This judgment was handed down electronically by emailing a copy to the parties. The 11 June 2024 is deemed to be the date of delivery of this judgment).

JUDGMENT

KUMALO, AJ

[1] The Applicant in this matter is United National (Pty) Ltd, a private company with limited liabilities incorporated in terms of the Company Laws of the Republic of south Africa with its principal place of business situated at Gallagher Estate, Midrand.

[2] The Respondent is the National Enterprises Workers Union Ya-Afrika (“NEWUYA”), a trade union duly registered in terms of the Labour Relations Act, with its registered address situated at Office Number 4[…], Second Floor, J[…] R[…], Pretoria.

[3] The Applicant seeks an order amongst others, condoning its non-compliance with the Rules of this Court and that the matter be heard as one of urgency. It further seeks an order interdicting and restraining the Respondents from continuing with a strike in breach of the picketing rules agreed upon between the parties at the CCMA.

[4] Applicant seeks further to an order restraining and interdicting the respondents from committing or inciting all acts of intimidation and violence at its premises situated at 1[…] M[…] S[…], P[…], Pretoria. It further seeks a restraining order that the Respondents’ members be interdicted from restricting access to the said premises.

[5] I must state that the Applicant approached the Court on extremely urgent basis and the Court was only favoured with its papers at 09h45 on the day of the hearing.

[6] Respondents filed a notice to oppose but had not filed an answering affidavit as at the time of the hearing of the matter. Counsel for the Respondent opted to argue the matter on the Applicant’s papers and raised certain issues with them and in particular the admissibility of evidence presented by the Applicant.

[7] It was argued on behalf of the Respondents that the founding affidavit was based on hearsay evidence and there were no

confirmatory affidavits attached to it to confirm its correctness.

[8] The Respondents’ counsel strongly challenged the admission of the photographs attached to the founding affidavit as annexures “E” from pages 18 to 20. The challenge was based on the fact that nowhere in the founding affidavit does the deponent state that he took the pictures and there is no confirmatory affidavit where somebody states that he or she took the picture.

[9] I have perused the founding affidavit of the Applicant and I am of the view that the points raised by Respondent’s counsel are not entirely valid in so far as it concerns certain of the allegations of the employer.

[10] The deponent is the Chief Executive Officer of the applicant and alleged that facts are within his personal knowledge and there is no affidavit deposed by Respondents to gainsay the above. In the absence of such an affidavit, I must accept the allegations contained in his affidavit. It was within the Respondents’ right to ask the matter to stand down so that they can depose to an opposing affidavit but they chose to argue the matter on the Applicant’s papers.

[11] I am further conscious of the relief that is sought in this regard. The applicant is seeking an interim relief, a rule nisi to be specific. The Applicant alleges that the parties entered into a picketing agreement at the CCMA and attached a copy thereof. It is further alleged that the Respondents are in violation of the said agreement and have barricaded the road and entrance to the applicant’s premises which is what the picketing agreement sought to regulate.

[12] There is an allegation that the striking employees are intimidating and threatening those employees that are working or want to work. Counsel for the Respondent argued that there is no confirmatory affidavit from the said workers that are alleging that they are intimidated. I am of the view that the Court can take judicial notice that this is a normal occurrence during strikes that threats may be made of workers intimidated. I however do not believe that the Applicant seeks a declarator as suggested by Counsel for the Respondent.

[13] What the Applicant’s papers suggest they seek, is compliance by the Respondents with the picketing agreement entered into between the parties and I am of the view that they are entitled to demand compliance therewith.

[14] In the circumstances, the following order is made:

1. The applicant’s non-compliance with the Rules of this Court is condoned and the matter is heard as one of urgency;

2. A rule nisi is hereby issued, calling on the Respondents to show cause why an order in the following order should not be made final;

2.1 interdicting and restraining the Respondents from continuing with the strike in breach of the picketing rules agreed to between the parties at the CCMA;

2.2 Restraining and interdicting the Respondents from committing or inciting acts of intimidation and violence at the premises of the Applicant situated at 1000 Maunde Street, Predustria, Pretoria;

2.3 Restraining and interdicting the respondents from restricting access to the applicant’s premises at the address stated above in 2.2;

2.4 The above orders are to operate interim orders, pending the return date of 13 August 2024;

2.5 The Respondents are permitted to anticipate the return date on a 24 hours’ notice to all parties.

3. There is no order as to costs.

MP Kumalo

Acting Judge of the Labour Court of South Africa.

Appearances:

For the Applicant: Adv. Ford

Instructed by: Qina Sekhabisa Inc.

For the Respondent: Sello Seepamore of SG Seepamore Inc.