REPUBLIC OF SOUTH AFRICA IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG JUDGMENT Not Reportable CASE NO: J 1694/13 In the matter between :- TOSHKA RETAIL SOLUTIONS (PTY) LTD Applicant And INQUBELA PHAMBILI TRADE UNION Respondent Heard: 22 April 2014 Delivered: 05 September 2014 Summary: Application to interdict the respondent from defaming the employer by the union and interdict union from entering workplace without permission. Applicant basing its case on hearsay evidence. JUDGMENT MOLAHLEHI J Introduction [1] This is an application in term of which the applicant seeks an order in the following terms: The application is unopposed.
2 [2] The applicant is a company registered in terms of the company laws of South Africa. [3] The respondent is a trade union registered in terms of the Labour Relation Act of 1995 and is a representative trade union at the applicant s workplace. The respondent has organisational rights which include the right to deductions of subscript and reasonable access in the workplace. There is however no collective agreement concluded between the parties. The case of the applicant [4] The applicant s case is that since receiving the rights referred to above, the respondent has conducted itself in a manner which: 4.1. Contravenes the provisions of the LRA; and 4.2 damage the relationship between the parties. [5] The above complaints are based on a number of allegations against the respondent. In this respect, the applicant claims that the respondent has made defamatory statement against it. The claim of defamation is based on the allegation that respondent distributed amongst the employees communication wherein the respondent is alleged to have accused the applicant of the following; 5.1 being involved in the criminal and unlawful conduct of intimidating its own employees, in attempt to dissuade them from joining the union; and 5.2 intending to or having attempted to bring the union down and
3 5.3 neglecting or failing to comply with its lawful obligations in effecting dismissal of any employees, as required by labour legislation. [6] The respondent has despite the demand from the applicant to detract the above statements failed to do so. [7] The second claim of the applicant is based on the allegation that the respondent is abusing the reasonable access awarded to it by the CCMA. It is alleged in this regard that the officials of the respondent entered the workplace of the respondent on the 24 April 2013, during working hours without permission and demanded that the employees should sign a petition. There was no explanation as to why the employees were required to sign the petition. [8] According to the applicant it was later informed by the employees that the respondent told them that there was a need for them to sign the petition in order to avoid losing their employments. [9] The deponent to the finding affidavit, Mr Schoeman, stated in his affidavit that he was informed that Luthuli addressed the applicant s employees on the floor of the warehouse. This took is alleged to have taken place during the working hours and without permission of the applicant. Mr Schoeman further stated the following; 9.1 I was informed that Luthuli, whilst unlawfully addressing the employees, threatened to cause the employees to embark on a strike action. This threat of strike action was even communicated to the employees of the applicant s client, Pick n Pay, which shares
4 warehouse space at the specific premised where Luthuli addressed the applicant staff on this occasion. 9.2 Luthuli s meeting with the respondent s members, as well as the employees of the applicant s clients Pick n Pay, completely disrupted production for the period of the meeting. As indicated above, this meeting took place during the applicant s normal working hours. [10] The applicant addressed a letter to the union seeking undertaking for such transgression could not take place in the future. The respondent responded in a letter dated 8 July 2013, wherein they state that they were informed of a different venue to the one they arrived at on that particular day. The union also denied having conducted the meeting in the premises of the applicant and Pick n Pay Evaluation [11] During the debate regarding the issue of defamation, Counsel for the applicant correctly in my view indicated that he was willing to forgo prayer 1 of the notice of motion including paragraph 14of the finding affidavit. Prayer 1 deals with the issue of defamation, I will for that reason not deal with the claim of defamation in this judgment. I proceed to deal with the allegation for the respondent violated the provision of section 12(2) and 12(4) of the LRA. A representative trade union is entitled to hold meetings with employees outside their working hours at the employer s premises
5 [12] The applicant is seeking a final order and therefore in order to succeed it has to satisfy the requirement of a final order. The other principle governing interdicts is that an interdict is not a remedy for the post invasion of rights Phill Morris v M & G. Media & others (2009) ZA SCA96. In the present instance the order sought to interdict the respondent from entering and addressing the employees on the premises of the applicant during working hours has already happened and thus by the time the applicant instituted these proceedings water has already gone under the bridge. Put in another way by the time those proceeding s have instituted the horse has long bolted. [13] The other important point to note in this application is that the applicant in the present matter seeks a final interdict on basis of hearsay evidence. The applicant has not laid any basis as to why the hearsay evidence should be admitted in the circumstances of this case. It is apparent from the reading of the applicant s founding affidavit that the hearsay evidence that Mr Luthuli had entered the premises without permission and addressed both the applicant s employees and those of Pick n Pay is decisive in determining whether the order sought should be granted. I am inclined not to accept Mr Coetzee s evidence for it seems to prove the facts which are central to the determination of this case without providing any reason as to why no supplementary supporting affidavit from the pick n Pay and or any of the staff
6 members who were present when the incident occurred were not attached to the founding affidavit. [14] In the premises the following order is made: 1. The applicant s application is dismissed with no order as to costs. Molahlehi J Judge of the Labour Court Of South Africa Appearances: For Applicant: ADV MJ Engelbrecht Instructed by: Werksmans Attorneys For the Respondent: No Appearance