Court name
Labour Court Main Division
Case number
185 of 2013
Title

Namibia Food And Allied Workers Union (NAFAU) v Mc Carthy Retail (Namibia) (Pty) T/A Game (185 of 2013) [2014] NALCMD 3 (31 January 2014);

Media neutral citation
[2014] NALCMD 3
Coram
Cheda J










REPUBLIC
OF NAMIBIA




LABOUR
COURT OF NAMIBIA MAIN DIVISION, WINDHOEK





JUDGMENT








Case
no: LC 185/2013





DATE:
31 JANUARY 2014





REPORTABLE







In
the matter between:








NAMIBIA
FOOD AND ALLIED WORKERS UNION
(NAFAU)...............................APPLICANT








And








MC
CARTHY RETAIL (NAMIBIA) (PTY) LTD T/A
GAME..................................RESPONDENT








Neutral
citation: Namibia Food and Allied Workers Union v Mc Carthy Retail
(Namibia) (Pty) Ltd (LC 185/2013) [2014] NALCMD 3 (31 January 2014)





Coram: CHEDA
J





Heard: 14
November 2013





Delivered:
31 January 2014








Flynote:
Urgent application – Need for compliance with Rule 6 (12) (b) –
Applicant should set forth explicitly the circumstances which he
avers render the matter urgent – Set forth the reasons why it
cannot be afforded substantive redress at hearing – A
continuing offensive conduct qualifies as urgent.


Application
by respondent to strike out applicant’s replying and
supplementary affidavits is dismissed.





Summary:
Applicant and respondent entered into a recognition agreement which
applicant avers respondent had breached and continued to do so.
Respondent stated that the present employees employed after the
agreement were not scab labourers but seasonal labourers which was a
partial admission. Respondent had not accorded applicant access to
its premises as per the agreement. This was a breach and applicant
had reason to panic and approach the courts. The averments in the
answering and supplementary affidavits are necessary in the
circumstances. Application for striking out is dismissed with costs.








ORDER








The
application by respondent to strike out the answering and
supplementary affidavits be and is hereby dismissed with costs.





JUDGMENT








CHEDA
J





[1]
The matter before me is an application to strike out which was filed
by respondent following an urgent application by applicant filed on
the 5th of November 2013. Applicant is Namibia Food and Allied
Workers Union (hereinafter referred to as ‘the Union”)
and respondent is Mc Carthy Retail (Namibia) (Pty) Ltd trading as
Game (hereinafter referred to as “the company”).





[2]
The basis of the urgent application arises from the alleged
respondent’ non-compliance with the terms and conditions of a
recognition agreement which recognized the applicant’s role in
their negotiations with respondent.





[3]
Applicant’s contention is that respondent should comply with
the compliance order issued on 30 October 2013 by the Labour
Commissioner and that respondent should remove the nine scab
labourers unlawfully engaged by the respondent during the industrial
action.





[4]
The background of this matter is that the two parties entered into
wage negotiations which failed and a dispute was then referred to the
Labour Commissioner’s office on the 11th September 2013 who in
turn issued a certificate of an unresolved dispute. On the 10th of
October 2013, the parties signed a recognition agreement which
consists of rules and conditions governing and regulating the said
industrial action.





[5]
It is applicant’s contention that almost immediately after the
commencement of the strike on the 20th of October 2013, the company
breached the said recognition agreement in the following manner by:





1)
intimidating employees and forcing them to sign letters to accept the
company’s offer;





2)
by denying the Union officials and other office bearers access to its
premises for the purpose of peaceful communication with its members;
and





3)
by hiring nine scab labourers at its Oshakati branch.





[6]
A compliance order was issued on the 30th of October 2013 by the
Labour Commissioner. After the Labour Commissioner had awarded a
compliance certificate, respondent wrote a letter indicating that it
was going to appeal the Labour Commissioner’s decision but to
date has not done so. This was the gist of applicant’s urgent
application.





[7]
Respondent, through its representative, Ms Bassingthwaighte argued
that applicant delayed in lodging its urgent application by 49 days
and such delay was of their own making. In other words they should
not benefit from their own short comings. The same applies to
applicant’s failure to make an application for access to
respondent’s premises which issue arose on the 28th of October
2013 and it took 8 days for them to file its application.





[8]
She further argued that respondent failed to comply with Rule 6 (12)
(b) which reads:








In
every affidavit or petition filed in support of any application under
para (a) of this subrule, the applicant shall set forth explicitly
the circumstances which he avers render the matter urgent and the
reasons why he claims that he could not be afforded substantial
redress at a hearing in due course.





[9]
On the other hand, applicant argued that respondent is in breach of
the conditions of the recognition agreement one of which is the
employment of scab labourers who are presently at work in Oshakati.
The fact that these labourers continue to work qualifies the matter
as urgent and there is therefore no other remedy available to them to
contain this offensive activity by the respondent. I find that the
requirements laid down by Rule 6 (12) (b) have been met. These courts
are strict in their approach to compliance or non-compliance of this
rule, see Luna Meubelveraardigers (Edms) BPK v Makin and another (t/a
Makin’s Furniture Manufacturers)1
. This case is authority that, legal practitioners should apply their
minds on matters they are handling and not pay lip service.





[10]
It is Ms Bassingthwaighte argument that, applicant’s members
were not denied access to the premises for the purposes of obtaining
information they required as this could have been done telephonically
and/or after working hours and during lunch break. It is further her
argument that the redress sought would have been obtained through the
ordinary course of business. In addition, thereto, she submitted that
applicant has abused the court process and should not receive
sympathy from the courts.








[11]
The first question which falls for determination is whether or not
the matter is urgent. It is trite that these courts are reluctant to
treat matters as urgent merely on applicant’s say-so. The
matter is urgent if it cannot wait its normal cause of day as such
delay might result in irreparable harm to it. It is for that reason
that urgency that is occasioned by the party’s dilatoriness or
lack of diligence cannot qualify as urgent as envisaged by the rules
of this court. A party seeking the court to dispense with the
requirements of the rules must make out in the founding affidavit to
justify the particular extent of the departure from the usual
provisions, see Salt v Smith and another2
.





[12]
In casu a compliance agreement was entered into by the parties. This
was followed by the issuance of a certificate of an unresolved
dispute by the Labour Commissioner. The aim of the agreement by the
parties was to ensure that no party took advantage of another during
the industrial action.





[13]
I should pose here and remark that members of applicant are already
negotiating from a position of a weaker strength as they are
economically disadvantaged in relation to the economic strength of
respondent. It is for that reason that the legislature found it
necessary to protect them from employers who would replace them
willy-nilly in complete defiance of the terms and conditions of any
agreement they would have entered into in good faith. Applicant saw
early signs of defiance on the part of respondent, namely, the
employment of scab labourers which they view as disguised seasonal
workers, and their denial of access into the premises in order to
establish and make sure that there is compliance. There is suspicion
that scab labourers are being used in contravention of s 76 (3) (a)
of the Labour Act, Act 11 of 2007 (‘the Act” which reads
thus:








6.1
Section 76(3)(a) of the Labour Act provides as follows:





Despite
the provisions of any contract of employment or collective agreement,
an employer must not –





(a)
require an employee who is not participating in a strike that is in
compliance with this Chapter or whom the employer has not locked-out
employee, unless the work is necessary to prevent any danger to the
life, personal safety or health of any individual;”





[14]
There was no danger to life, personal safety or health of any
individual which was pleaded by respondent. If there was, this would
have justified and excused their engagement of the scab laboureres.





[15]
It would have been all together folly for applicant to sit on its
laurels and helplessly watch respondent breaching the terms and
conditions of the agreement. Every individual, justistic persons
included is entitled to act or defend itself in the face of imminent
danger and/or breach of his/her legal rights.





[16]
The unavoidable question is, if respondent had nothing to hide in its
operations and/or conduct relating to matters directly related to
compliance, why was it reluctant to allow applicant to check their
premises, the finding of which would have put-paid all the suspicions
applicant harbored about its industrial activities. Applicant indeed
had reason to panic when they saw the first signs of a breach of the
agreement and for that reason they were justified in approaching the
courts on an urgent basis. In light of the circumstances surrounding
this matter, I am constrained to exercise my discretion and condone
their non-compliance with the rules of this court as, in my view
justice demands that this be done.








[17]
Respondent argued that applicant should not have taken the action
they did as there are other remedies they could have resorted to in
the circumstances. Respondent’s conduct in these negotiations
invokes suspicion as it does not in many words deny the employment of
temporary (scab) labourers which step, it sought to justify as a
seasonal necessity during the Christmas period.





[18]
Applicant’s averments must be viewed in light of the rude fact
that it is fighting from outside the ring and is not privileged
enough to see, evaluate and access the goings-on at respondent’s
premises.





[19]
For that reason alone, the court is persuaded by its quest for the
attainment of justice, that where transparency and clarity is called
for, the courts should not turn a blind eye. This is a matter where
the court should adopt a robust as opposed to an armchair approach in
order to do justice between man and man.





[20]
It should be borne in mind that the aim and object of the Labour Act
is to strike a balance, delicate as it may be, between the employer
and employees in order to achieve at least some semblance of
industrial harmony. Respondent’s argument is not convincing at
all, if anything it demonstrates a cavalier and brazen attitude
towards applicant and offends the tenets of the agreement entered
into by the parties. The answering and supplementary affidavits are
indeed valid and should not be excluded from the main application as
it is through them that a full understanding of the circumstances of
this case can be understood by the courts.





[21]
I find that respondent’s (applicant) response to this
application was, frivolous and vexations as it sought to exclude
evidence which was necessary in the proceedings. The exclusion will
no doubt affect the whole recognition agreement which is improper. It
is clear that respondent indeed breached the terms and conditions,
but, chose to persist with a spurious opposition. I therefore find no
reason why they should not be saddled with costs.








ORDER








The
application by respondent to strike out the answering and
supplementary affidavits be and is hereby dismissed with costs.











M
Cheda





Judge 





APPEARANCES





APPLICANT : Advocate
S Rukoro





Instructed
by Sisa Namandje & Co.





Windhoek





RESPONDENT: Advocate
N Bassingthwaighte






Instructed by Koep & Partners






Windhoek












1 Luna
Meubelveraardigers (Edms) BPK v Makin and another (t/a Makin’s
Furniture Manufacturers)  1977 (4) SA (W) 134




2Salt
v Smith and another  1990 NR 87 HC