MAFUSIRE
J:
On
31 January 2015, I granted an ex
tempore
order directing the forty three respondents to release immediately
the forty three heavy duty haulage trucks, together with their cargo,
trip documentation for those trucks, and all other property of the
applicant which the respondents had unlawfully embargoed and parked
at Beitbridge, Harare and Chirundu.
The
respondents were part of a group of one hundred and forty five
Zimbabwean nationals employed as transnational haulage truck drivers
by the applicant, a South African company that carried on the
business of freight forwarding. The drivers transported cargo of
various types to customers in most Southern African countries that
included Botswana, Malawi, Mozambique, Namibia, Zambia and Zimbabwe.
The
respondents went on strike. Their major grievance was that the
applicant should summarily dismiss the applicant's operations
manager, whom they accused of all manner of evil, including the
making of unlawful deductions on their wages. They also complained of
general abuse at his hands.
Apparently
feeling that the applicant was not moving fast enough to address
their grievances, the respondents coordinated their efforts. On 21
January 2015, when they had all entered Zimbabwe en route to their
various destinations, the respondents aborted their trips. Each of
them parked their vehicles, all laden with cargo destined for the
different markets, at various premises at three ports in Zimbabwe,
namely Beitbridge, Harare and Chirundu.
The
cargo was said to be worth millions of Rand. Each day that passed was
costing the applicant huge sums of money. Threats of legal action
from the owners or consignees of that cargo started pouring on the
applicant. Efforts to engage the respondents in dialogue proved
fruitless. At one time an agreement negotiated with the assistance of
the parties' Zimbabwean legal representatives collapsed. At the
last minute the respondents refused to append their signatures on the
written draft.
Apart
from seeking a negotiated settlement the applicant also pursued the
legal route. On 23 January 2015 it obtained from the Labour Court of
South Africa at Durban, a rule nisi
calling upon the respondents to show cause why their strike should
not be declared unlawful. The rule nisi
would operate as an interim interdict. However, the respondents
ignored the order. They did not return to work.
The
applicant switched the legal fight to Zimbabwe.
They
first sought a “show cause” order from the Zimbabwean Minister of
the Public Service, Labour and Social Welfare (“the
Minister”)
in terms of section 106 of the Zimbabwean Labour Act [Chapter
28:01]
(“the
Act”).
The provision empowers the Minister, either on his own initiative, or
on application by any person affected by a collective job action such
as a strike, boycott, lock-out, sit-in or sit-out, to issue an order
calling upon the organisers to show cause why he may not issue a
disposal order. A disposal order is a directive that the Minister may
issue, inter
alia,
terminating, postponing or suspending the collective job action. He
can also direct that the dispute giving rise to the collective job
action be dealt with by conciliation or arbitration in accordance
with the provisions of the Act.
The
applicant got no official response to its application to the
Minister. However, it received information that the Minister had
declined to deal with the matter, allegedly because she had no
jurisdiction over the matter.
The
applicant approached the Zimbabwe Republic Police. It had received
information that the respondents had begun vandalising the trucks
and/or the cargo. Furthermore, they had turned violent. Relief
drivers sent to retrieve the trucks had failed to gain access.
However, the police said they would not get involved unless there was
an order of court. The applicant then proceeded to file the urgent
chamber application.
At
the hearing, Mr Machiridza,
for the respondents, raised four points in
limine.
But I dismissed them all for lack of merit. For the sake of
completeness, they were these. The first was that the case was purely
a labour dispute. To emphasise that point reference was made to the
rule nisi
from the South African Labour Court. It was then argued that the
applicant, having decided to litigate in Zimbabwe, could only
approach the Labour Court, allegedly being the only court with
exclusive jurisdiction over the matter. It was argued that if the
Minister had declined to issue the show cause order, then the proper
remedy for the applicant was an appeal to the Labour Court, and not
an application to this court.
I
was urged to refuse to hear the matter because the applicant had
allegedly failed to exhaust its domestic remedies.
I
was satisfied that the first point in
limine
was misconceived. The relief sought by the applicant was based on the
rei
vindicatio.
The applicant was the owner of the property that was in the unlawful
possession of the respondents. The owner of a thing who has been
deprived of possession against his will is entitled to claim it
wherever he finds it and from whomsoever has got it.
All that he has to prove is that he is the owner; that his thing is
in the defendant's possession; and that it is still in existence
and clearly identifiable.
That is a common law remedy. The Labour Court is a creature of
statute. It has no power to do anything outside the four corners of
its enabling statute. In section 89, the Act, being the enabling
statute, prescribes the functions of that court. They do not include
the power to deal with a vindicatory action. The urgent chamber
application was not about resolving the labour dispute between the
parties.
The
respondents' second point in
limine
was that the applicant's deponent, one Paul Snyman (“Snyman”),
had not produced his authority to institute and represent it in the
proceedings. As such, it was argued, there was no proper affidavit,
and therefore no proper application before the court. In his
affidavit Snyman had testified that he was the applicant's human
resources business partner. He said he was authorised by the
applicant to depose to the affidavit and that the facts in the
affidavit were true and correct to the best of his knowledge and
belief.
From
the affidavit, there was no question that Snyman was testifying about
information that was within his personal knowledge and belief. In
terms of Order 32 Rule 277(4) of the Rules of this Court, an
affidavit in support of an application shall be made by the applicant
(or respondent, as the case might be), or by any person who can swear
to the facts or averments set out therein.
It
is not a rule of thumb that every time a person wants to bring
proceedings in this court on behalf of a juristic body he must always
produce the written proof of his authority. Every case depends on its
own set of facts.
In
the present case, the information presented by Snyman, which was
unchallenged, was that when the problem with the respondents had
arisen he was the person at the centre of trying to resolve it. Among
other things, he had been one of two managers who had immediately
flown from South Africa to Zimbabwe to engage the respondents in
dialogue. He had been centrally involved in the efforts to free the
trucks and their cargo. He had negotiated the agreement that had
culminated in the draft which the respondents had subsequently
refused to sign.
Mr
Machiridza
conceded that Snyman's authority to represent the applicant had
never been challenged before. So I was satisfied that Snyman had the
requisite authority.
The
respondents' third point in
limine
was that there was no urgency, the applicant allegedly having failed
to act within a reasonable time when the need to act had arisen.
It
was argued that the applicant had wasted valuable time in pursuing
futile remedies in the Labour Court of South Africa; in Zimbabwe
before the Minister and the police, and that only when it had hit a
brick wall did it finally approach this court. According to the
respondents, that was an intolerable act of forum shopping.
However,
the applicant had made out a very strong case for urgency. It could
hardly be accused of having slept on its rights.
The
respondents took their action on 21 January 2015. Applicant reacted
immediately. Among other things, by the following day, 22 January
2015, Snyman and one other manager were in Zimbabwe engaging the
respondents. The following day, 23 Jamuary 2015, it had obtained the
rule nisi
in the South African Labour Court. By the time of the urgent
application, on 30 January 2015, the applicant had been to the
Minister and the police, not to mention the agreement that it had
reached with the respondents which, but for the respondents' about
turn at the last minute, would have obviated any further court
action. In my view, the matter was in every way urgent. In Kuvarega
v
Registrar-General & Anor
CHATIKOBO J said:
“What
constitutes urgency is not only the imminent arrival of the day of
reckoning; a matter is urgent, if at the time the need to act arises,
the matter cannot wait. Urgency which stems from a deliberate or
careless abstention from action until the dead-line draws near is not
the type of urgency contemplated by the rules.”
This
matter was classically a case of commercial urgency as defined in
such cases as Silver's
Trucks (Pvt) Ltd & Anor v
Director of Customs and Excise
and 20th
Century Fox Film Corporation & Another v
Anthony Black Films (Pty) Ltd.
The
court has power to hear an application as a matter of urgency, not
only when there is a serious threat to life or liberty but also where
the urgency arises out of the need to protect commercial interests.
The applicant had established a clear case of commercial urgency. Put
bluntly, its business affected the economies of several countries in
the Southern African region. The customers whose imports the
applicant ferried were on edge because of the non-delivery. The
applicant also pointed out that because of the on-going strike, its
trucks had overstayed in Zimbabwe in breach of the transit permits.
It faced heavy penalties from the central revenue collection agency.
The respondents' freakish behaviour and its resultant cost were
manifestly disproportionate to the grievances that they had against
the applicant.
The
respondents' last point in
limine
was that the applicant had approached the court with dirty hands
allegedly in that it had forcibly retrieved the trucks and their
cargo and had placed physical barriers, including vicious guard dogs,
to block the respondents' access to the vehicles. They claimed that
some of their own assets, including personal apparel, had been locked
inside. It was argued that the order sought by the applicant was
simply to legitimise the illegal action it had already taken.
The
applicant denied that it had repossessed the trucks and the cargo. It
said all it had done following the violence and the damage to the
trucks by the respondents had been to arrange for security around the
premises at which the trucks were parked in order to prevent any
further criminal acts that could further damage the trucks and or
their cargo. The applicant also pointed out that the respondents
still had in their possession the vehicle keys and the various
inter-State permits for the trucks and the cargo, such that without
them the harm it was suffering was continuing.
I
dismissed the respondents' last point in
limine
both on the facts and on the self-evident point that if the applicant
had already retrieved the vehicles and all its other assets, then the
respondents could hardly have a reason to oppose the relief sought.
On
the merits, the respondents had no case.
Mr
Machiridza
tried to argue that the dispute had to be understood in the context
of an employer–employee relationship; that the respondents had
serious grievances against the applicant for, among other things,
unpaid wages which allegedly were running into thousands of dollars
for each of the respondents. He accused the applicant for the
collapse of the draft agreement of settlement allegedly because it
had refused to make part payment of the outstanding salaries,
something that would have ameliorated the respondents' situation to
enable them to call off the strike.
Mr
Machiridza
conceded that whatever grievances the respondents might have had
against the applicant, it was no justification for them having
resorted to self-help. It was said that the applicant had already
secured a court order in South Africa for the unpaid wages.
Therefore, in my view, all they had to do was to execute that order
instead of taking the law into their own hands. What the respondents
had done was intolerable lawlessness. No court could condone such
brazen illegality. It was their free choice to continue with their
strike. But they knew that it had been declared illegal by the South
African Labour Court. They had no right to keep the applicant's
trucks, cargo and all the attendant documentation. I therefore
ordered their immediate release.
11
February 2015
Coghlan,
Welsh & Guest,
applicant's legal practitioners
Antonio
& Dzvetero,
respondents' legal practitioners
1.
Chetty
v Naidoo
1974 (3) 13 (A), 20B
2.
SILBERBERG AND SCHOEMAN'S The
Law of Property,
5th
ed., pp 243 – 244, and the cases cited there
3.
1998 (1) ZLR 188 (H)
4.
At p 193F
5.
1999 (1) ZLR 490 (H)
6.
1982 (3) SA 582
