In an interesting judgment delivered on 18 June 2021, Bright Stone Trading 3 Close Corporation Trading as Gordon Road Spar vs The Economic Freedom Fighter (EFF) & others, the Labour Court ordered that the EFF were interdicted and restrained from, inter alia, unlawfully interfering with the business operations of the Gordon Road Spar (the Company).
The matter arose from an urgent application which was brought by the Company on 1 June 2021 where an interim order was issued. Only the EFF opposed the urgent application which was heard on 11 June 2021.
The Company conducts a business in the food retail sector and is part of the Spar Group of retailers. On 15 April 2021, the Company demoted one of its employees. As a result of the demotion the employees sought the assistance of the EFF to interfere with the Company and its business operations. The EFF firstly addressed a letter to the Company on 12 May 2021 setting out various demands. Secondly, they proposed a date to meet with the Company. In accordance with their proposal to meet, the EFF arrived at the Company’s premises on 16 May 2021 where the situation became volatile. Members of the EFF together with employees of the Company engaged in intimidating behaviour where the Company’s employees and customers felt intimidated and feared for their safety. The Company took no steps at this stage as they were trying to maintain the peace and they were worried that taking any action would cause the situation to become more volatile. The EFF’s members protested once again at the Company’s premises on 28 May 2021. At this stage the Company agreed to meet with the EFF on 30 May 2021.
After taking advice, the Company cancelled the meeting and addressed correspondence to the EFF advising that if they attended at their premises again the Company would have no alternative but to bring an urgent application. When the EFF received the cancellation of the meeting the protest action erupted again and continued to 1 June 2021. This conducted precipitated the Company having to launch the urgent application.
The Labour Court found, inter alia, that the EFF is not a registered trade union and thus has no authority to get involved in workplace disputes. Legal representatives of the EFF argued that Mr Sono and the protesters did not have the authority to act on behalf of the EFF and that they could not be held liable for the conduct of its members or those who purported to be its members and that the Company should rather sue the particular individuals. It was further argued that the wearing of the EFF regalia did not mean that they were in fact members of the EFF because its regalia could be purchased anywhere and that they had no knowledge of what happened because they were not present during the protest action and as such it cannot be held liable for its members who act on a frolic of their own.
The Court having regard to these arguments found that:
- the facts showed that the letter of demand was written on an EFF letterhead and was written by the branch secretary of the EFF, Mr Sono;
- there were at least three incidents of violence and unlawful protests by members and the EFF at the Company’s premises;
- the founding papers on its own established on the probabilities that the members of the EFF protested unlawfully at the company’s premises and that this was at the behest of the EFF’s branch secretary who purported to act on its behalf. The EFF’S lack of knowledge was thus not a defence to the claim that Mr Sono and its members created the impression that it was engaged in protest action on its behalf. It was also an important factor which the court took into consideration that the EFF did not deny that Mr Sono is a branch secretary of the EFF and they placed no evidence before the Court that those who supported him were not EFF members. It was thus found that Mr Sono is a member of the EFF, and not just any member, he is a part of their leadership as a branch secretary. Thus the Company reasonably believed that Mr Sono and the protesters were acting on behalf of the EFF; and
- • there was no substance to the EFF’s argument that it can only warn its members against unlawful conduct but cannot enforce it. Where the unlawful conduct is perpetrated in the name of the organization, without authorisation, the EFF is empowered by the terms of its Constitution to enforce its provisions and act against members such as Mr Sono and the protestors who participated in the unlawful protest action. The EFF did not hold its members accountable in accordance with its Constitution when such members acted in breach of it. Furthermore, the EFF cannot contend that it exists separately from its members and cannot be held liable where they act on a folic of their own. Accordingly, it was found that there is no substance to the argument that the EFF cannot be held liable for the conduct of its members or those members who represented, ostensibly, that they acted on their own behalf.
After considering all of the evidence the Court found that the Company was entitled to their order interdicting the EFF and the employees from carrying out the unlawful conduct complained of in the urgent application. The Court also found that as a result of the conduct of the EFF and its members engaged at the Company premises, that the Company should not be left out of pocket in having to have taken steps to seek to prevent and contain the unlawful conduct of the EFF and its members. Accordingly the EFF was required to pay the costs of the Company for the urgent application.
This judgment should be viewed as a warning to any political party who attempts to unlawfully interfere with internal workplace disputes.