Contempt of court in the context of strikes and violence

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1 Volume 23 No. 12 July 2014 Contempt of court in the context of strikes and violence Managing Editor: P.A.K. le Roux Hon. Consulting Editor: A.A. Landman Published by Box Tokai 7966 Tel: ISSN X by Anton Myburgh SC A series of four judgments has recently been handed down dealing with contempt of court in the context of strikes and violence. In each of the judgments, the union (or its members) escaped being placed in contempt, mostly on technical grounds. But unions would be well advised to take heed of these judgments, as the judicial net is clearly tightening around those of them who are prepared to run the risk of disobeying court orders. There are also important lessons to be learnt from the judgments for employers (and their lawyers) about the drafting of applications for interdicts, and ensuing contempt of court applications. The four judgments are FAWU v In2Food (Pty) Ltd (case no. JA61/2013, 12/6/2014, per Sutherland AJA), Xstrata SA (Pty) Ltd v AMCU & Others (case no. J1239/13, 25/2/2014, per Tlhotlhalemaje AJ), Ciro Beverage Solutions (Pty) Ltd v SATAWU & Others (case no. J2630/13, 12/12/2013, per Shaik AJ), and Anglo American Platinum Ltd & Another v AMCU & Others (case no. J158/14, 6/3/2014, per Van Niekerk J). Before dealing with each of the judgments and then the lessons to be learnt from them, it is convenient to set out an overview of the legal principles relating to contempt of court. Contempt of court: overview of legal principles The leading judgment on contempt of court is Fakie NO v CCII Systems (Pty) Ltd 2006 (4) SA 326 (SCA). The SCA observed that a contempt of court application (at paras 7-8): is a most valuable mechanism. It permits a private litigant who has obtained a court order requiring an opponent to do or not do something (ad factum praestandum), to approach the court again, in the event of non-compliance, for a further order declaring the non-compliant party in contempt of court, and imposing a sanction. The sanction usually, though not invariably, has the object of inducing the non-complier to fulfil the terms of the previous order. In the hands of a private party, the application for committal for contempt is a peculiar amalgam, for it is a civil proceeding that invokes a criminal sanction or its threat. And while the litigant seeking enforcement has a manifest private interest Page 109

2 in securing compliance, the court grants enforcement also because of the broader public interest in obedience to its orders, since disregard sullies the authority of the courts and detracts from the rule of law. The SCA went on to recount the requisites for contempt as follows (at para 42): In particular, the applicant must prove the requisites of contempt (the order; service or notice; non-compliance; and wilfulness and mala fides) beyond reasonable doubt. But, once the applicant has proved the order, service or notice, and non-compliance, the respondent bears an evidential burden in relation to wilfulness and mala fides: Should the respondent fail to advance evidence that establishes a reasonable doubt as to whether non-compliance was wilful and mala fide, contempt will have been established beyond reasonable doubt. (My emphasis.) There are five points that should be highlighted. Firstly, proof of the requirements for contempt the order, service or notice, non-compliance, and wilfulness and mala fides must be established beyond reasonable doubt. This is because one is here dealing with a potential quasi-criminal sanction. Secondly, actual service of the order is not necessary notification of the order may suffice. This requirement has been described as being that the respondent was either served with the order or was informed of the grant of the order against him or her and could have no reasonable grounds for disbelieving the information. 1 Thirdly, even if an order (including an interim order) is incorrectly granted, the respondent is obliged to comply with it until such time as it is set aside, with the only exception being where the order granted was a nullity because, for example, the court did not have jurisdiction. If it were otherwise, respondents would be able to defy court orders with impunity, contending that they believed such orders to be wrong, which would result in chaos. 2 Fourthly, the requirement of wilfulness and mala fides implies that contempt is committed not merely by the disregard of a court order, but by the deliberate and intentional violation of the court s dignity, repute or authority that this evinces. An honest belief that non-compliance is justified or proper is incompatible with such an intent. 3 Fifthly, the shifting of the evidentiary burden to the respondent to establish that his noncompliance was not wilful and mala fide once the first three requirements for contempt have been met (the order, service or notice, and noncompliance) equates to there being an inference 4 of wilful and mala fide non-compliance in such circumstances, which the respondent must rebut through the leading of evidence. In2Food (LAC) Turning to the four judgments mentioned above, the judgment of the LAC in In2Food involved an appeal against the well-known judgment of Steenkamp J. 5 In the course of an unprotected strike, which was accompanied by violence, the company obtained an interim interdict in terms of which (amongst other relief) both FAWU and the strikers were interdicted and restrained from continuing with the strike and preventing access to the company s premises by persons not involved in the strike. After the interdict had been granted, the strike and violence continued, which resulted in the company instituting contempt of court proceedings against FAWU. In his judgment, Steenkamp J found FAWU in contempt of court and imposed a fine of R500,000. The key passage in the judgment is this (at 2591H B): 1 Ntombela v Herridge Hire & Haul CC & Another [1999] 3 BLLR 253 (LC) at para 24; South African Forestry Company Ltd v AWAWU & Others [1999] 9 BLLR 997 (LC) at para Sparks v Sparks 1998 (4) SA 714 (W) at 726E; The Master of the High Court (North Gauteng High Court, Pretoria) v Motala NO & Others 2012 (3) SA 325 (SCA) at paras Fakie NO (supra) at para Security Services Employers' Organisation & Others v SA Transport & Allied Workers Union & Others (2007) 28 ILJ 1134 (LC) at para In2Food (Pty) Ltd v Food & Allied Workers Union & Others (2013) 34 ILJ 2589 (LC). Page 110

3 The time has come in our labour relations history that trade unions should be held accountable for the actions of their members. For too long trade unions have glibly washed their hands of the violent actions of their members. This in a context where the [LRA], which has now been in existence for some 17 years and of which trade unions, their office-bearers and their members are well aware, makes it extremely easy to go on a protected strike, as it should be in a context where the right to strike is a constitutionally protected right. However, that right is not without limitations. Firstly, the proper procedures set out in s 64 of the LRA should be followed. And secondly, it must be in line with the constitutional right to assemble and to picket peacefully and unarmed, as entrenched in s 17 of the Bill of Rights. Very simply, there is no justification for the type of violent action that the respondents have engaged in in this instance. And alarmingly, on the evidence before me, the union and its officials have not taken sufficient steps to dissuade and prevent their members from continuing with their violent and unlawful actions. Instead, having confirmed that it represents and acts on behalf of its members, the union s organizer merely stated [in a letter on 15 February, being a day before the interdict was granted] that the unprotected strike was as a result of your refusal to bargain. We will not be held responsible nor our members be held liable for such action. These actions undermine the very essence of disciplined collective bargaining and the very substructure of our labour relations regime. (My emphasis.) On appeal to the LAC, FAWU contended that Steenkamp J had erred in finding it in contempt of court because (so it was contended) there was no evidence of a breach of the interim order by it (i.e. FAWU), as distinct from a breach by its members. Sutherland AJA commenced by focusing on when a juristic person (such as FAWU) is held to perform acts, including in the strike context (at para 9): The principle upon which a juristic entity is held to perform acts is by acting through its officials, agents or members, acting within the scope of a mandate from the juristic entity to persist in given activity. What is required is proof that the strike and the blockade occurred in pursuance of a decision by the appellant or of an agreement with its members to strike. In the case of a protected strike, the observance of the formalities by a trade union in terms of section 64 of the LRA would establish the fact of the union s complicity. In the case of an unprotected strike the establishment of the fact of union complicity is likely to be by inference. (My emphasis.) In short, in order for FAWU to be in contempt of court there had to be evidence of a culpable act of association between FAWU and its members who had engaged in unlawful conduct. Only then would FAWU be complicit in such unlawful conduct and be taken to have acted in its own right. In an attempt to get around the absence of evidence of a breach of the court order by FAWU in its own right (see further below), the company argued two things on appeal in support of the Labour Court s finding that FAWU was in contempt of court. Firstly, that the conduct of FAWU s members must be attributed to FAWU. Secondly, that the interdict stopping FAWU from continuing with the strike meant that it had to take positive steps to bring the strike to an end. The LAC s answer to the company s first point was as follows (at para 9): The first difficulty from which these submissions suffer does not flow from the proposition that a trade union can or ought to be vicariously liable for its members actions, but rather, derives from a confusion of two distinct bases for liability that can be incurred by a juristic person. The fact that a trade union can be liable for the acts of its members does not assist in deciding whether the trade union, in its own right, has breached a court order. This distinction was also not addressed in the judgment of the court a quo. The upshot is that when there is evidence to implicate the union vicariously in the unlawful acts of its members, there may well be an action available to the respondent for redress, but the liability of the appellant for contempt of a court order is strictly determined by reference to what the court ordered the trade union, itself, to do and the presentation of evidence that it did not do as it was told. (My emphasis.) Page 111

4 Put simply, while a union may (if the requirements are met) be vicariously liable for the unlawful acts of its members, it cannot be vicariously liable for contempt of court. In order to be in contempt of court, the union itself must have breached a court order compelling it to do something or refrain from doing something. Turning to the company s second point, the LAC also found it to be without merit. This on the following basis (at para 13): The second difficulty from which these submissions suffer is the dependence on a generous interpretation of the term continue in the order directing a cessation of the strike, to imply that the appellant, a fortiori, had to take positive steps to bring the strike to an end. What might such positive steps be that are to be implied by stating that the appellant was not to continue with the strike? Bearing in mind the quasi-criminal sanction for a breach, it is to be expected from the text of an order that the party interdicted is left in no reasonable doubt as to what exactly is to be done or refrained from. The formulation of the order against the appellant is vague, having not been insightfully framed with logistics of proof of breach and of effective execution in mind. An interdict order against a union should prudently state plainly what action is mandatory, and not elide the union s obligations with that of its members. The terminology of, continuing the strike, whatever broad meaning might be attributed to that term, is, in my view, too vague to be useful in a context where quasi-criminal sanctions are at issue. (My emphasis.) Turning to the facts, the letter relied on by Steenkamp J (which preceded the interim order) was ameliorated by the fact that the company had itself recorded in an earlier letter to FAWU that despite 4 attempts by your union to convince the workers to return to work they do not listen to you and it is clear that you have no control over them. In an sent by FAWU to the company shortly before the hearing of the contempt application (some 10 days into the strike), FAWU had also indicated that it intended to use its influence to get the workers back to work and requested the company to withdraw the contempt application. Furthermore, FAWU had stated in its answering affidavit in the interdict application that it had advised its members to return to work, which allegation stood to be accepted on the applicable test for the resolution of factual disputes. All in all, there was no evidence of FAWU having breached the court order in its own right, with the result that it was not guilty of contempt of court. The LAC then concluded with these findings (at paras 18-19): The respondent s thesis that a trade union, as a matter of principle, has a duty to curb unlawful behaviour by its members indeed enjoys merit. Indeed, the principle of union accountability for its actions or omissions is beginning to gain recognition 6 However, there is no room, upon that platform alone, to build a case that the appellant, in its own right, in this instance, breached this order of court. The sentiments expressed by the court a quo which are cited above [see above] have been rightly described by Alan Rycroft as a significant moment of judicial resolve. 7 Indeed, the sentiments deserve endorsement, and are adopted by this Court. Nevertheless, on the facts of this matter, the appellant has not been shown to have breached the order. (My emphasis.) In summary, the LAC accepted that unions have a duty to curb the unlawful behaviour of their members, and that the time has come to hold unions accountable for the actions of their members. But this, in itself, was not a basis upon which to find FAWU in contempt of court, because liability for contempt of court does not operate vicariously the union itself must be in contempt. In order for this to occur, there had to be evidence of a culpable act of association between FAWU and its members, for only then would the union be complicit in their unlawful conduct. There was no 6 The LAC referred here to FAWU v Ngcobo NO & Another (2013) 34 ILJ 3061 (CC), where FAWU was held liable to its own members for failure to prosecute the members interests properly in litigation. 7 Rycroft, A Being Held in Contempt for Non-compliance with a Court Interdict: In2food (Pty) Ltd v FAWU & Others (2013) 34 ILJ 2589 (LC) (2013) 34 ILJ Page 112

5 such evidence and FAWU had thus not breached the court order. Furthermore, the order interdicting FAWU itself from continuing with the strike (and blockages) was too vague to give rise to contempt of court because it was unknown what precisely was required of the union. By way of comment, the judgment is an incisive one that is likely to prove very influential. There is one issue that it does not deal with that warrants mention. There is precedent in our law that where a union is required to do something by a court order, it must do what is reasonably necessary to ensure compliance, which means that it must take all reasonable steps to ensure compliance 8 (see also Xstrata below). This accords with the position in the UK, where the House of Lords held a union in contempt of court because it failed this standard: As soon as orders of the National Industrial Relations Court were issued restraining the union itself or by its officers, servants, and agents from continuing such practice, the union became responsible for taking all possible steps to stop the blacking, including the unequivocal withdrawal of the shop stewards authority and, if necessary, disciplinary action. 9 (My emphasis.) On this approach, the interim order granted in In2Food interdicting FAWU itself from continuing with the strike was not vague and unenforceable. It clearly placed on FAWU the obligation to take all reasonable steps to stop the strike. Xstrata (LC) In Xstrata, the company obtained an interim order against AMCU members interdicting them from striking, gathering at or blockading entrances, intimidating and inciting non-strikers, and from being within four kilometres of the company s operations. In addition to this, as part of the interim order, AMCU itself was ordered to ensure that [its] members comply with this order. After AMCU members failed to obey the interim order, with high levels of violence having been experienced, the company instituted contempt of court proceedings against AMCU the contention being that it was in contempt of court in failing to comply with the ensure compliance order. On the return day of the interim interdict, Tlhotlhalemaje AJ dealt also with the contempt of court application. A key issue in the matter was whether there exists a proper legal basis for ensure compliance orders. In response to AMCU s contention that it could not be expected to police its members who were engaged in unlawful activities and that this could result in disastrous consequences, the Court found (at paras 34-35): From AMCU s attitude as gleaned above, it is apparent that the disastrous consequence referred to can only be in relation to how the union will be perceived by its members when it makes attempts to implore them to behave like civilized citizens. For fear of being seen by the marauding members as weak and counter-revolutionary, the union would rather let the chaos unfold in front of its eyes rather than intervene as the perception is that there is no legal or moral obligation to intervene. It has become noticeable that unions are readily and easily prepared to lead employees out on any form of industrial action, whether lawful or not. The perception that a union has no obligation whatsoever to control its members during such activities, which are invariably violent in nature cannot be sustained. (My emphasis.) The Court went on to find that there exist four legal grounds upon which a union is obliged to police its members. Firstly, the obligation arises from s17 of the Constitution, which guarantees everyone the right, peacefully and unarmed, to assemble, demonstrate and present petitions. According to the Court, this places an obligation on union members who engage in such activities during a strike to do so peacefully and unarmed, and [b]y implication, the same obligation is placed on the union to ensure that its members indeed exercise these rights likewise, and within the confines of other laws of the land (at para 36). Secondly, the obligation arises from the relation- 8 Security Services Employers' Organisation (supra) at paras 56 and Heatons Transport (St Helens) Ltd v Transport and General Workers Union [1972] IRLR 25. Page 113

6 ship of guardianship between the union and its members. As the Court put it, [i]nasmuch as the members can be guided on whether to embark on a strike action or some other protest action, in the same vein, the leadership, including shop stewards, should also lead and guide the members and advise them to behave lawfully during actions undertaken (at para 37). Thirdly, the obligation arises from the collective bargaining relationship between unions and employers. According to the Court, once a trade union has a collective bargaining relationship with an employer, it has a duty to ensure that its members comply with the provisions of the LRA in relation to that employer. 10 In similar vein, to the extent that there is a Court Order granted by this Court in terms of the provisions of the LRA, by virtue of that relationship, the union should be obliged to ensure that its members comply with that order, as it pertains to that relationship with the employer (at para 38). Fourthly, the obligation arose on the facts from the process of engagement between the parties, including the fact that AMCU had called the strike, various meetings had been held between the parties, and the fact that AMCU had not distanced itself from its members and continued to represent them. In these circumstances, AMCU cannot simply extricate itself from its responsibilities arising out of that engagement (at para 40). With reference to these four grounds, the Court concluded (at para 42): It cannot be doubted that AMCU has fully associated itself with the conduct of its members throughout the illegal strike, even after the dismissal of the strikers. AMCU cannot therefore, when it is required to account for the actions of its members, wash its hands of them in the mould of the proverbial Pontius Pilate. Orders obliging unions to ensure that their members acted in a lawful and peaceful manner during strikes are meant to reinforce what the unions should know and do. In view of the volatility associated with strike or protest action in the workplace, employers are now bound to depend on the Courts to issue such orders. (My emphasis.) The Court then turned to AMCU s contention that, even if it was under a legal obligation to police its members, compelling it to ensure compliance with the order against its members was too onerous an obligation. This, too, did not find favour with the Court. It found that when a union is ordered to ensure compliance with an order granted against its members, [a]ll that is expected of unions is for them to take reasonable steps and measures to ensure that their members comply with the court orders (at para 43). 11 Put differently, all that [the union] had to show was [that] it did whatever was necessary, and within its means and powers, to ensure that its members complied with the court order (at para 44). The Court went on to find that these steps did not need to be undertaken by the union leadership itself, but could be delegated to the shop stewards (at para 44): It is not even required of the union leadership to physically and at all times police its members. The policing can be done by the shop stewards, and the union s national leadership can provide a supporting role. Shop stewards are in a unique situation where they can control the members as they have exercised a liaison function between the union and its members in respect of the activity in question. In the same fashion that the shop stewards were used by the union to organise the action in question, they can and should be used to control it. I am of the view that this is not too much to ask from a union in the bigger scheme of things, especially where the action in question has turned violent. (My emphasis.) In the light of all of this, the Court concluded that a case had been made out for the ensure compliance order being confirmed. This paved the way for the determination of the contempt of court application, which involved the question whether AMCU had acquitted itself of its obligations in terms of the ensure compliance order. Turning to the contempt of court application, the main basis upon which the Court dismissed it is that it found that the company had not served the 10 Following Mangaung Local Municipality v SAMWU [2003] 3 BLLR 268 (LC) at para Following Security Services Employers' Organisation (supra) at paras 56 and 83. Page 114

7 interim order on AMCU by telefax as required by the interim order itself. Instead of faxing the order to AMCU, the company s attorneys had, on the day it was granted, ed a copy to AMCU s attorneys, but they had not yet been formally appointed to act. It was only 44 days later, and three days before the contempt of court application was launched, that the order was faxed to AMCU. As the Court put it, [t]here can be no deviations or half-measures in respect of the directive of the Court concerning the service of its orders, unless the applicant can show that it was not possible to effect service in the manner prescribed, or alternatively service in the manner prescribed by the Court was frustrated by some factors beyond its control (at para 53). This, in effect, sealed the company s fate. In the alternative, the Court went on to find that, on the facts, AMCU had not wilfully disregarded the ensure compliance order, such as to be guilty of contempt of court. The Court referred in this regard to the fact that three AMCU representatives (in the form of its president, a regional secretary and a shop steward) had addressed the strikers, each on a different occasion, and had implored on them to obey the court order. The Court then concluded (at para 58): These interventions might not be seen to be enough. However, in view of the fact that essentially there was no proper service of the court order for a period of 44 days after it was granted, the fact that some of the AMCU officials had nevertheless acted on that court order in my view does not indicate wilful or mala fide noncompliance. It cannot be doubted that some of the persons identified amongst the [individual] respondents might have not complied with the court order. It cannot be justifiable for Xstrata to specifically target AMCU for contempt in circumstances where it (Xstrata) had created the conditions of non-compliance (i.e. by failure to properly serve the order). This is even more so where the focus and allegations of non-compliance with the Court order as gleaned from [the company s] founding affidavit seems to be on the [individual respondents] rather than on AMCU itself. (My emphasis.) In summary, the Court found that ensure compliance orders are permissible because there exists a legal basis upon which unions are obliged to ensure that their members comply with the law. The policing function inherent in ensure compliance orders can be undertaken by shop stewards under the guidance of national leadership. But AMCU escaped being found in contempt of court because the interim order had not been served on it as required by the order itself, and because, in any event, the three interventions by AMCU representatives was sufficient to rebut the inference of wilful and mala fide non-compliance. By way of comment, this, too, is an important judgment, particularly insofar as it sanctions the granting of ensure compliance orders. The problem identified in In2Food about holding unions in contempt of court because of an absence of proof of complicity in the unlawful conduct of their members does not arise in the case of ensure compliance orders, because they place an obligation on the union itself to take action. It seems likely that, in an attempt to curb the unlawful conduct of union members, it will become standard fare for employers to seek such an order when obtaining interdicts. This will place unions under an obligation to take positive steps to ensure compliance with the order, and render them potentially guilty of contempt of court if they fail to do so. Regarding the Court s application of the test for contempt of court, two points arise. The first is that, in requiring strict compliance with the required manner of service provided for in the interim order, the Court appears to have overlooked that notice of a court order (as opposed to formal service thereof) is sufficient to found a claim of contempt of court (see above). In this case, although the order was not faxed to AMCU at the time that it was granted, AMCU was certainly aware of the order this in circumstances where, at one of the meetings relied upon by the Court, the regional secretary in fact read out the order. The second point relates to the Court s finding of a lack of wilful and mala fide non-compliance in the light of the three interventions by AMCU. The Court s comment in this regard that this might not be seen to be enough, raises the question whether it was. Although there were three inter- Page 115

8 ventions, these occurred shortly after the order was granted. High-levels of violence, which was extensively reported in the press, then continued for a number of weeks before the launching of the contempt of court application. During this intervening period, there was no evidence of any action by AMCU to ensure compliance with the interim order. If AMCU did enough to escape liability, it was only just enough. Ciro Business Solutions While in Xstrata, the company s failure to effect service as required by the interim order proved decisive, in Ciro Business Solutions, the company complied with the required method of service set in the order, but the Court found at the contempt of court stage that this was not good enough. The facts were as follows. On the same day that a protected strike began, the company obtained an interim order interdicting the strikers from engaging in various acts of unlawful conduct. In addition to providing that the order was to be faxed to SATAWU, the order provided for service as follows (para 14): Upon the [strikers] by the terms of the order being read in English by a person nominated by the applicant, explaining the content and the import of the order to such or so many of them as may be present at the premises during normal working hours and by displaying a copy of the order on the wall of the security cottage at the main entrance to the premises. Provided that if any of the [strikers] request a copy of the order, the applicant shall make such copy available to him or her. While the fax transmission of the order to SA- TAWU was successful, the strikers did not take kindly to the company s attempt at serving the order on them. The woman appointed by the company to read the order out to the strikers was shouted down, abused and then drowned out by loud music played by the strikers over loudspeakers. A manager then handed a shop steward ten copies of the order and requested that he distribute them amongst the strikers, but he refused to do so and stuffed the copies into his backpack. Although the company was successful in affixing a copy of the order on the wall of the security cottage, it failed to display the list of strikers to whom it applied. Out of desperation, the company obtained the assistance of a CCMA commissioner who read out the order to the strikers. But the three respondents in the ensuing contempt of court application ( the respondents ) were not present at the reading by the commissioner. Deeper into the strike, the respondents were identified as having engaged in an attack on a truck carrying employees of a labour broker. They threw bricks at the truck (shattering its windscreen) and poured petrol onto the occupants with the aim of setting them and the truck alight. (This was yet another horrendous act of strike violence chronicled in a judgment of the Labour Court.) The company subsequently brought an application to place the respondents in contempt of court. They denied knowledge of the interim order, and thus denied that they were in contempt of court. Shaik AJ, who had granted the interim order, made no bones about the fact that, if it could be said beyond reasonable doubt that the respondents had been aware of the order, he would have had no hesitation in finding them guilty of contempt of court and imposing an appropriate penalty. Although finding that the order had been served more or less in compliance with the order (at para 30), the Court had second thoughts about whether the manner of service required by the order was sound, and went on to identify the following three failings in the order relating to service. The first failing related to the choice of English as the medium of communication (at para 23): It is obviously not appropriate and meaningless for an order of this court to be read out in English to persons who cannot speak, read or write that language with fluency. It would serve the purpose better if the order was translated into a language that is commonly used and understood by the employees. The second failing related to the choice of the communicator and the method of communication (at para 24): It is also inappropriate and bad for an order to be made that the applicant nominates any person to read and explain the order and the circum- Page 116

9 stances that befell [the woman who attempted to read out the order] is illustrative of the problems associated with such a process. And again, who is to say that such an effort was satisfactory even if it was done as envisaged? The third failing related to the composition of the audience (at para 25): It is also not appropriate that the order be brought only to the attention of persons who happen to be around at a particular place at a particular time chosen by the applicant. Knowledge then of the court order is a matter of happenstance. In addition to these failings, the Court also found that it was not apparent that the respondents were present when the order was read out by the woman who was nominated to do so, and that, in any event, the process had not been completed and was abandoned. In circumstances where the respondents also claimed not to have been present when the order was read out by the CCMA commissioner, this left the company with the contention that it was implausible that the respondents were not aware of the order, in circumstances where it was served on SATAWU and the elected shop stewards, and displayed on the wall of the security cottage. These contentions also did not find favour with the Court. Dealing with service on SATAWU and the shop stewards (at para 30): The union and the shop stewards do not serve as duly appointed agents of employees and in this case [of the respondents], to receive court processes and an employer cannot compel them to play that role. They are not hand maidens to be pressed into service by an employer to do their bidding. In saying this, I do not hold that in certain appropriate circumstances this may not be done. This left the fact that the order had been displayed in full view of the strikers, including the respondents, on the outer wall of the security cottage. But here, according to the Court, the company fell short because the list of strikers to whom the order applied was not displayed together with the order. In all of these circumstances, the Court found that there was nothing to gainsay the respondents version that they had no knowledge of the order, and that it was directed at them personally (a point stressed by the Court). Reflecting on the serious allegations of criminal activity that the respondents were implicated in, which would typically warrant a finding of contempt, the Court held (at para 33): But in circumstances such as this, such an order will be manifestly unjust. I am not moved by maudlin sentimentality. Service is a critical element to satisfy, and in this matter, service was less than satisfactory. This matter gave rise to anxious deliberation and I cannot, with liberty hanging on a thread, find that there was service, good and proper to justify a finding of contempt. The Court concluded by bemoaning the fact that the contempt of court application had been enrolled on an urgent basis this in circumstances where the strike had ended in the intervening period, with the result that there was no longer a need for the compliance sought. In summary, this judgment holds that service of a court order on strikers by reading out the order (particularly in English) to those who are randomly present at a certain place, affixing a copy in a prominent position without attaching a list of the individual respondents, and asking the shop stewards to distribute copies, will not suffice when it comes to contempt of court proceedings. By way of comment, while the judgment highlights problems with service in the context of strikes that labour lawyers have been grappling with for years, the respondents can probably count themselves lucky. In circumstances where the strikers had frustrated attempts to serve the order on them by way of a public announcement, it is more than arguable that the placing of the order in a conspicuous place (an outer wall of the security cottage) was enough, despite the absence of the list of names (particularly if it was clear that the order had been obtained against SATAWU members at large). But, in any event, the problems with service encountered in this case can be overcome by building into an ensure compliance order that the union and its shop stewards should assist in conveying the terms of the order to the Page 117

10 strikers. This is in keeping with the obligations that unions and shop stewards were found to be under in Xstrata. Anglo American Platinum (LC) The judgment of Van Niekerk J in Anglo American Platinum dealt with the AMCU strike in the platinum mining sector earlier this year. Shortly after the strike commenced, the company obtained (on an unopposed basis) an interim order, in the form of a rule nisi, from Cele J interdicting AMCU members from interfering with its business, intimidating or preventing non-strikers from working and damaging its property, and a corresponding order against AMCU. The order granted by Cele J also included two (apparently) self-standing orders, which were not part of the rule nisi, to the effect that AMCU was ordered to communicate the picketing rules to its members and ensure compliance by its members with the picketing rules. A month into the strike, the company brought an application to place, inter alia, AMCU and its president and general secretary in contempt of court. This in circumstances where, in the intervening period, there had been numerous breaches of the picketing rules, and where (on the company s version) AMCU s president and general secretary had gone so far as to advise members not to comply with the picketing rules on the basis that the union had not been party to their formulation. The main issue that stood to be determined by the Court was whether, in terms of Cele J s order, AMCU was immediately obliged to communicate the picketing rules to its members and ensure compliance with them (as contended by the company) or whether the order did no more than require the respondents to show cause on the return date why a final order should not be made to that effect (as contended by AMCU). Having analysed the terms of the order, the Court found that there were a number of indications that supported AMCU s interpretation. The Court went on to find as follows (at para 11): In making these observations, I do not intend to interpret the order in any definitive manner; for present purposes, it is sufficient for me to find, which I do, that there is an element of ambiguity in the order. Once there is ambiguity and ambivalence in an order, it will generally not be open to a court to make a finding of wilful noncompliance and mala fides, especially where the respondents rely, as they do in the present instances, on an interpretation of an order that is not far-fetched or unreasonable and where their conduct is not in conflict with their understanding of the terms of the order so understood. It was on this basis that the Court concluded that the company had failed to establish the second requirement for contempt of court, namely that the respondents had failed or refused to comply with the order. In the result, the application was dismissed. In the context of dealing with costs, the Court did not accept AMCU s contention that the contempt of court application was an abuse of process. As the Court put it (at paras 14-15): It would be naïve to think that in the context of industrial action, parties do not resort to litigation as a means to an end. The real purpose of many of these applications, no doubt, is to bring pressure to bear on the opposing party. What the court ought to guard against is the abuse of its process. There is a fine line between seeking tactical advantage through litigation and abuse of process, but it is a line that parties ought to respect and which the court ought to maintain. Nothing in the papers before me [indicates] that the present application falls into the category of abuse. The applicants were entitled, as they did, to protect and advance their interests by seeking an order that union members should not act unlawfully, and that there should be compliance with the picketing rules. Given the terms of the order that was granted, it is by no means an abuse of process to suggest, as the applicants have, that the respondents were in contempt of the order. (My emphasis.) In summary, where an order is ambiguous and where the respondent s conduct is consistent with its interpretation of the order, it is not possible to secure a finding of a contravention of the order beyond reasonable doubt in contempt of court proceedings. By way of comment, the judgment highlights the Page 118

11 level of scrutiny that orders are subjected to in the event of a complaint of contempt of court. The judgment is also important because it makes it clear that contempt of court proceedings are a legitimate manner of enforcing rights in the context of strike violence, and are not viewed as an abuse of process by the Labour Court. Lessons to be learnt For lawyers involved in the drafting of applications to interdict strikes and violence, and ensuing contempt of court applications, the four judgments impart the following lessons: When drafting urgent applications to interdict strikes and violence, one must keep in mind that, if the order is not complied with, it may be necessary to institute contempt of court proceedings, in which event the quality of the interdict papers and the precise terms of the initial order will come under careful scrutiny. Precedents should thus be refined, and more time and attention paid to the drafting of urgent applications. The structure of orders interdicting strikes and violence must be coherently framed. Typically, in respect of interim relief where the rule nisi procedure is followed, all relief sought should form part of the rule nisi, and it should all operate as an interim order (save for costs). Stand-alone orders not part of the rule nisi and coupled with interim relief will give rise to debates about whether they are final, interim, or simply something to be dealt with on the return date. These ambiguous orders are not capable of being enforced by way of contempt of court proceedings. (Anglo American Platinum) The specific orders interdicting strikes and violence must be framed with sufficient particularity so that the respondent knows exactly what is expected of it, and compliance or otherwise with the order can be properly assessed. For example, an order interdicting a union itself from continuing with a strike is vague and incapable of giving rise to contempt of court. (In2Foods) It is permissible and certainly advisable to obtain an order compelling a union to ensure compliance with the orders granted against its members (Xstrata). But, in the light of In2Food, one should probably go a step further and actually spell out what precisely the union should do to ensure compliance by its members. So, for example, relief could be sought to the effect that the union should: issue a public statement denouncing the violence; hold a mass meeting to convey the terms of the order to its members; despatch marshals to monitor hot spots; or set up a hot line on which complaints of violence can be reported for investigation. Allied to this, an order could be sought requiring the union to report back to court within a short period of time on the steps taken by it to ensure compliance with the court order. When it comes to the required manner of service of an order interdicting strikes and violence, the inconvenient truth is that the only sure fire method of getting the order to stick in the event of an ensuing contempt of court application is by serving a copy of the order on each individual respondent. Short of this, there will always be strikers who will be able to contend that they did not have knowledge of the order bearing in mind that the employer has to prove service beyond reasonable doubt in contempt proceedings. At very least, the manner of service provided for in orders should be expanded to include (if possible) notification of the order by way of SMSs, the reading out of translated orders, the placing and affixing of copies in as many conspicuous places as possible, etc (Ciro Beverage Solutions). In addition, in appropriate circumstances, it should be built in to ensure compliance orders that unions and shop stewards should convey the terms of the order to the strikers. Once the order interdicting the strike or violence is obtained, it should be served strictly in accordance with the directives for service contained in the order (Xstrata). If this is not possible, it may be advisable to return to court to seek a variation of the order dealing with service. In a contempt of court application, proof of noncompliance with the order must be carefully and thoughtfully addressed. If the application is brought against the union, proof of the union itself having breached the order must be tendered. It will not suffice that the union s members have Page 119

12 done so, as liability for contempt of court does not operate vicariously. (In2Foods) Where a union has made some material attempt at complying with, for example, an ensure compliance order, it is unlikely that the requirement of wilful and mala fide noncompliance will be established. When an application for contempt of court is reduced to a debate about whether a union could have done more to comply with the order, it is probably unlikely to succeed. (Xstrata) Finally, a word on the decision to bring a contempt of court application. While this sometimes involves difficult industrial relations considerations, the four judgments reflect that the Labour Court is not ill-disposed towards such applications, particularly where they are brought on a contemporaneous basis when the strike or violence is ongoing (as occurred in Anglo American Platinum and In2Food). Although all four of the applications failed, this was a consequence of the fact that the requirements for the grant of a contempt of court order are onerous. Contempt of court applications in the context of strikes and violence have succeeded in other important cases. 12 And, in Fakie NO (see the quotation above), the SCA described such applications as a most valuable mechanism. The bigger picture: a move towards union accountability Issues of contempt of court aside, In2Food and Xstrata are particularly important because they both make it abundantly clear that, in the context of escalating levels of unprotected strike action and strike violence in South Africa, the courts are inclined to hold unions accountable for the unlawful conduct of their members and impose on them obligations to control their membership. In this context, the LAC s endorsement and adoption of this finding by Steenkamp J in In2Food, which warrants repetition, sends out a crystal clear message: The time has come in our labour relations history that trade unions should be held accountable for the actions of their members. For too long trade unions have glibly washed their hands of the violent actions of their members. (My emphasis.) This echoes a similar, earlier finding by Van Niekerk J in Tsogo Sun Casinos (Pty) Ltd t/a Montecasino v Future of SA Workers Union & Others (2012) 33 ILJ 998 (LC) (at para 14): This court must necessarily express its displeasure in the strongest possible terms against the misconduct that the individual respondents do not deny having committed, and against unions that refuse or fail to take all reasonable steps to prevent its occurrence. (My emphasis.) This approach of union accountability accords with the approach adopted in other jurisdictions. In the USA, for example, the National Labor Relations Board has held as follows: Where a union authorizes a picket line, it is required to retain control over the picketing. If a union is unwilling or unable to take the necessary steps to control its pickets, it must bear the responsibility for their misconduct. Similarly, if pickets engage in misconduct in the presence of a union agent, and that agent fails to disavow that conduct and take corrective measures, the union may be held responsible. 13 (My emphasis.) Precisely where this approach will take us remains to be seen. Hopefully, ensure compliance orders which are really a judicial endorsement of a union s obligation to control its membership may go some way to reducing incidences of unprotected strike action and strike violence. If unions do not obey them, the possibility of contempt of court proceedings (as well as claims for civil damages or compensation under s68(1)(b) of the LRA, if applicable) will arise. When all else has failed, it may well be that fines of R500,000 (as imposed by the Labour Court in In2Food) are now required. Anton Myburgh SC 12 Security Services Employers' Organisation (supra); Supreme Spring (a division of Metindustrial Ltd) v ME- WUSA & others (case no. J2067/10, 10/8/2011, per Van Niekerk J). 13 Plumbers, Local 195 (McCormack-Young Corp) 233 NLRB 1087 (1977), quoted in Gorman et al Labour Law Analysis and Advocacy (Juris Publishing, 2013) at 353, para See for a comparable UK case, the judgment of the Employment Appeal Tribunal in News Group Newspapers Ltd v SOGAT 82 (No 2) [1986] IRLR 337 at 339. Page 120