Samwu off the hook for death, violence and dirty 'wildcat' strike

The difficulty in identifying individuals in unruly mobs who take part in violent strikes has been highlighted in a recent court ruling, dismissing an application by the eThekwini Municipality to hold participants in February’s wildcat strike and union officials to be in contempt of court.

Durban labour court judge Benita Whitcher said employers faced an “arduous evidentiary burden” in such matters, but employers and their legal representatives still failed to heed this.

The municipality sought two orders from Whitcher. One was the confirmation of an interdict granted in February at the height of the unlawful strike, and the other was to hold members of the South African Municipal Workers' Union (Samwu), its shop stewards and the union itself, to be in contempt of that interdict.

But Whitcher dismissed both.

While she found Samwu members had acted unlawfully, she said, in essence, the strike was long over, so there was no need for the interdict any more. The city had also failed to identify the troublemakers. 

Regarding contempt, she said the interim interdict had not been properly served on the union.

The weeklong strike resulted in no refuse collection. The city, in its application for the interdict, said employees “from the engineering department” used official vehicles to block access to roads in the CBD, made fires blocking the public from taking their uncollected refuse to dumps, and intimidated and assaulted non-striking workers. One worker was shot. A voice note was circulated instructing the intimidation of non-striking workers.

On March 8, union members held at gunpoint employees assisting with the preparations for a burial at Umlazi S Cemetery. They were assaulted and robbed. The supervisor collapsed as a result of the trauma and later died.

Whitcher said photographs were attached “purporting to support these claims” and a written translation of the voice note was attached.

“The photographs appear to depict the blocking of West Street (Dr Pixley ka Seme Street), the deposit of loads of sand in roads, a vehicle with what appears to be a hole in the front windscreen and a person sitting in a wheelchair with what appears to be an injury to his arm. But save for the blocking of (West) Street, the remaining photographs were not pertinently referred to and explained in the affidavit.

“The written transcript of the alleged voice note is also attached, but there is no explanation in the founding affidavit as to its source, how it was sourced and from whom,” Whitcher said.

She said the interim interdict instructed Samwu and its shop stewards — who were named — to take meaningful steps to enforce the order.

The only act I can safely conclude happened and is rationally connected to members of Samwu is the claim that municipal vehicles were unlawfully commandeered and taken to the city where they were used to block access.

—  Benita Whitcher, Durban labour court judge 

Samwu, in opposing the finalisation of the interdict, said many were not shop stewards any more. And some were from a different unit who were, at that time, involved in a different protected strike.

Samwu did not “squarely address” the blocking of (West) Street, so this allegation stood uncontroverted.

However, it denied the remaining allegations, submitting the city had failed to identify the perpetrators.

Whitcher said for a final interdict to be granted, the city had to show the unlawful conduct would continue without it. In this matter, the issue had become “moot”.

But, beyond that, she said, the city had to put up proper proof that an employee had either engaged or associated themselves with the unlawful conduct.

“The production of proper proof is not beyond the ingenuity of the employers given the modern technology available to them. The only act I can safely conclude happened and is rationally connected to members of Samwu is the claim that municipal vehicles were unlawfully commandeered and taken to the city where they were used to block access.

“However, these members are not identified,” Whitcher said.

She said she agreed with Samwu the city's case amounted to a number of unsubstantiated conclusions.

She said employees who allegedly assaulted and intimidated co-workers at Durban could have been identified because these acts were “probably up close”.

These details could have been provided in a manner which protected the confidentiality of the victims.

In dismissing both applications, Whitcher made no order as to costs given the “ongoing relationship between the parties”.