Ngewu and Others v Union Co-Operative Bark and Sugar Co Ltd; Masondo and Others v Union Co-Operative Bark and Sugar Co Ltd

• Jurisdiction: South Africa
• Citation: 1982 (4) SA 390 (N)

Ngewu and Others v Union Co-Operative Bark and Sugar Co Ltd;
Masondo and Others v Union Co-Operative Bark and Sugar Co Ltd
1982 (4) SA 390 (N)

1982 (4) SA p390

Citation	1982 (4) SA 390 (N)
Court	Natal Provincial Division
Judge	Booysen J
Heard	January 26, 1982
Judgment	March 26, 1982

Flynote : Sleutelwoorde B

Master and servant — Industrial Conciliation Act 28 of 1956 — 'Strike' — What amounts to — Employees can be summarily dismissed — Rights of employee — Quaere: Whether if employer resorts to self-help the employees are entitled to a spoliation order.

C Master and servant — Industrial Conciliation Act 28 of 1956 — 'Lockout' or 'strike' — How Court should determine whether work stoppage is a 'lock-out' or not — Factory employer stopping free rations in return for other benefits — Choices open to employees — Employees electing to refuse free rations but demanding an amount in D lieu thereof — Such right never a term of their agreement — Employer refusing such demand — Work stoppage as a result thereof — At that stage employer not making any demand of employees but vice versa — Refusal or failure to work one contemplated by clause (i) of definition of 'strike' in s 1 of the Act — Work stoppage a 'strike' in contravention of s 65 of Act.

Headnote : Kopnota

E Where the employees of a company owning a factory stop work in a manner which amounts to a strike, thereby unlawfully repudiating their contract, the employer is entitled to summarily dismiss them. Once the employer has terminated his employee's employment, certainly if it is done lawfully and probably even if done unlawfully, the employee has no right to remain on or enter upon the employer's premises.

F Quaere: Whether a master in the position of a company owning a factory is entitled as against an erstwhile servant (factory worker) to resort to self-help and eject him from or physically prevent entry by the servant to his premises, or the master as owner of the premises is entitled to resort to selfhelp in order to prevent an erstwhile employee or indeed anyone else from trespassing on his property by refusing or G physically preventing entry or ejecting the trespasser, or whether this would amount to unlawful spoliation giving rise to a spoliation order.

In determining whether a work stoppage is a 'lock-out' (as defined in s 1 of the Industrial Conciliation Act 28 of 1956) or not, it is important (for the Court) to determine what the position was at the time when the work stoppage commenced. To determine whether there was a lock-out which led to the work-stoppage, one has to determine, firstly, whether the H employer had been or was then guilty of any of the acts or omissions mentioned in paras (a) - (d) of the definition of lock-out and, secondly, whether he had acted or omitted to act as the case might be with the purpose of inducing or compelling his employees to act as set out in paras (i) - (iii) of the definition.

A dispute between applicants, who had until March 1981 been employees of the respondent which operated a factory, and the respondent had resulted in a work stoppage on the part of the applicants; their subsequent arrest and removal from the premises, and finally their leaving the premises of the respondent where they had been accommodated. Applicants applied

1982 (4) SA p391

for an order declaring that their dismissal was unlawful as it allegedly constituted a lock-out in terms of the Industrial Conciliation Act 28 of 1956 and an order that they be forthwith restored to possession of their A accommodation. The respondent contended that the work stoppage had amounted to a strike. It was common cause that the Court did not have the power to order specific performance (ie grant a spoliation order) in a case like this where the applicants were common law servants and that, even if they had been unlawfully dismissed, no court of law could compel their master, the respondent, to allow them to perform their duties, their only remedy being a claim for damages. The Court therefore held B that, even if the dismissal had been wrongful, it would have declined to make the declaratory order, but the Court nevertheless proceeded, on the evidence, to consider whether or not the applicants had been lawfully dismissed. It assumed in favour of the applicants, without deciding, that it had been an implied term of their employment that applicants should receive free rations; that the respondent had announced the withdrawal of free rations in return for other benefits; C that this announcement amounted to a repudiation of a material term of each agreement of employment; and that the employees were then faced with three choices: (1) to accept the announcement as a repudiation and terminate their agreements, (2) to accept that free rations would be withdrawn and seek to obtain other benefits such as further increased wages or (3) to insist on implementation of all the terms of the D existing agreement including the term that they should receive free rations. The Court found, further, that they had chosen not to accept the repudiation, in which event they would have been entitled to insist on the wages, including the increases which had been announced earlier and accepted if not expressly at least by conduct; but that what they had done had been to accept that free rations would be withdrawn while insisting on payment of an amount in lieu thereof.

E Held, that this they could not validly do, certainly not if the demand was for more than the cost to the respondent of the rations: it was clear on the evidence that it had never been a term of the agreement that if rations were not taken or accepted the employees were entitled to receive payment of any amount in lieu thereof.

Held, therefore, that the work stoppage in those circumstances constituted an unlawful repudiation of their agreements of employment F and also an unlawful strike in contravention of s 65 of the Act. At that stage the respondent was not making any demands or proposals but the applicants were. The work stoppage constituted a 'refusal or failure... to continue work or resume work... with the purpose of inducing' the respondent to agree to their demands concerning terms of employment. The refusal or failure was one contemplated by clause (i) of G the definition of 'strike' in s 1 of the Act. Applications accordingly dismissed with costs.

Case Information

Return day of applications for a declaratory order and for an order that applicants be forthwith restored to possession of their accommodation on respondent's premises. Facts not material to this report have been omitted.

A B M Wilson SC (with him C R Nicholson) for the applicants. H

A W Mostert SC (with him L A Hurt SC and B A Acker) for the respondent.

Cur adv vult.

Postea (March 26).

1982 (4) SA p392

Judgment

Booysen J:

The applicants in these two applications were until the end of March 1981, employees of the respondent which operates a factory A making sugar from sugar-cane and a factory in which tannin is extracted from wattle bark. On 31 March 1981 a dispute between the applicants and respondent came to a head and resulted in a work stoppage on the part of the applicants, their subsequent arrest and removal from the premises, and finally their leaving the premises of the respondent, where they had B been accommodated, some in married and most in single quarters.

On 10 April 1981 Cyprian Bukula Ngewu and 44 other applicants made an urgent application before my Brother KUMLEBEN under case M 191/81 for a rule nisi calling upon the respondent to show cause why an order should not be made

(i)

declaring that the purported dismissal by respondent of C applicants 1 - 45 on 2 April 1981 is null and void by virtue of its constituting a lock-out in terms of the Industrial Conciliation Act 28 of 1956, alternatively, the Bantu Labour Relations Regulations Act 48 of 1953;

(ii)

D that applicants 1 - 45 be forthwith restored to possession of the premises known as the married quarters and the compound which, prior to 2 April 1981, they were entitled to occupy;

(iii)

for such further or alternative relief as this Court deems meet; and

(iv)

for costs of suit,

E and for an interim order that they be restored to possession of their quarters.

My Brother KUMLEBEN made the following order:

(a)

That the applicants be and are hereby granted leave to apply on the same papers duly supplemented for an interim order authorising them to occupy the accommodation on the premises of F the respondent formerly occupied by them pending the determination of the main application;

(b)

that the respondent lodge its answering affidavits in this application on or before 21 April 1981;

(c)

G that the applicants file any answering affidavits in the interim application on or before 23 April 1981;

(d)

that this interim application is to be heard as a matter of urgency on Friday, 24 April 1981; and finally

(e)

that the costs of today are to be deferred to that date.

After comprehensive opposing affidavits were delivered the matter was on H 24 April 1981 heard by another one of my Brethren. The papers, which ran to 277 pages, were made available to him shortly before the hearing of the matter. It appears from his judgment delivered on 27 April 1981 that counsel were agreed that the papers raised an extensive dispute of fact; that the Court was not at that stage called upon to resolve the dispute, and that

'the principles governing the application were those generally applicable to applications for interim interdicts and set forth in such well-known decisions as Webster v Mittchell1948 (1) SA 1186 (W) and Olympic Passenger Services (Pty) Ltd v Ramlagan1957 (2) SA 382 (D) '.

1982 (4) SA p393

Booysen J

Applying those principles the Court made the following order:

'(...