Batignolles v Nondwele and Others (CIV/APN 170 of 90) [1990] LSCA 147 (19 September 1990)

CIV/APN/170/90 IN THE HIGH COURT OF LESOTHO In the matter b e t w e e n :- SPIE BATIGNOLLES Applicant and L. NONDWELE A ND 3 34 OTHERS 1st Respondent J U D G M E NT Delivered by t he Honourable M r. Justice J. L. Kheola on t he 19th day of September, 1990 This is an ex parte application in which t he applicant applies for a Rule Nisi calling upon the respondents to show cause, if a n y, on a d a te to be determined by t he Court why the following order shall n ot be m a de f i n a l :- (a) Interdicting and restraining respondents from entering Applicant's Katse Camp S i t e. (b) Interdicting and restraining respondents from preventing or in any way interfering with applicant and applicant's subcontractors resumption of construction work at Applicant's Katse C a m p. /2....... - 2 - (c) Interdicting and restraining respondents from preventing or threatening to assault or assaulting applicant's employees or applicant's subcontractors or applicant's subcontractor's employees. (d) Authorising the Royal Lesotho Mounted Police to remove any respondents from applicant's Katse Camp Site and to use such force if need be as may be deemed necessary to ensure compliance with 2, 3 and 4 a b o v e. (e) Authorising Officer Commanding Thaba Tseka Royal Lesotho Mounted Police to give such protection and security to the deputy sheriff executing orders of Court made pursuant to this application, as he might consider necessary for the due service and execution of such orders and processes. 3. That an order in terms of prayers 2 ( a ), ( b ), ( c ), ( d ), and (e) operate with immediate effect as an interim o r d e r. 4. Directing respondents to pay costs of this application individually and severally the one paying the other to be absolved. 5. Further and/or alternative relief. /3 - 3 - On the 5th July, 1990 the Rule Nisi was issued and made returnable on the 23rd July, 1990. After several extentions the matter was finally argued before me on the 23rd A u g u s t, 1990. Judgment was reserved and the rule was extended to to-day. In his founding affidavit Bernard De Ravel deposes that he is the acting manager of the applicant. On the 15th May, 1990 the 335th respondent, acting through Tsukulu and Nkhahlle declared an illegal strike against the applicant. On the 3rd July, 1990 this Court declared in CIV/APN/153/90 that the respondents' strike of the 15th June, 1990 was unlawful and that the dismissal of the striking workers was lawful. He deposes that he verily believes that the 335th respondent instructed 1st to 334th respondents to refuse to receive their dismissal letters and final pay and shouted down applicant's announcement to dismissed workers as to procedures to be followed in receiving final salaries. De Ravel refers to annexure E which is an affidavit of one Daniel Marin Matholaz w ho deposes that he is the Project Manager of the applicant and that he resides at Katse at the applicant's building construction c a m p. He deposes that on the 13th J u n e, 1990 respondents went on an illegal strike. In addition to the illegal strike the respondents threatened to assault sub- c o n t r a c t o r s, sub-contractors' employees and applicant's employees and staff w ho were not on strike. As a result of the respondents threats the applicant and its sub-contractors stopped work on applicant's Katse camp for fear of the safety of the lives of its employees and those of its sub-contractors and their employees. /4..... - 4 - Matholaz deposes that respondents picketed applicant's administration and have d o ne so ever since, thus preventing applicant and its employees or its sub-contractors or their employees from resuming their duties at Katse c a m p. He left Katse on the 18th June at 4.00 p.m. H o w e v e r, he has maintained contract with t he camp by radio everyday ever since and including t he morning of the 27th J u n e, 1990. He verily believes that t he respondents are still picketing applicant's g a te at Katse thus making it impossible for applicant to resume work at its Katse camp safely. He alleges that on the 16th June when he m a de t he announcement that the respondents had been dismissed he stood on a rock and a certain policeman Masopha translated his speech. He told the respondents that they had been dismissed f or taking part in a illegal strike and that arrangements had been m a de for them to receive their final pay at Thaba-Tseka and that he had arranged transport to carry them there immediately. While he was making t he announcement the respondents shouted at him in an attempt to drown his speech to them. De Ravel further deposes in paragraph 7 t h a t :- "On t he afternoon of 26th June, 1990 I caused my attorney of record to seek an assurance from respondents' counsel that respondents would not disrupt or prevent applicant or applicant's sub-contractors from resuming work on t he Construction sites at K a t s e. I verily believe that respondents' Counsel's answer was to t he effect that respondents feel that as t he strike of 15th June 1990 was illegal anyone who inter- ferred with or prevented t he applicant from resuming his operations on site would be breaking /5 - the law and that the law would take its course against him. I submit that respondents' answer was not satisfactory and did not give sufficient guarantee to me that applicant's' and applicant's sub-contractors workers could resume their duties on sites without the risk of being prevented or assaulted or intimidated by the respondents and other members of C. A. W. U. L. E. in the circumstances." The answering affidavit is made by one Tefo Moroka who claims to be the National Organiser of the 335th respondent He denies categorically that the 335th respondent ever instructed 1st to 334th respondents to refuse to receive their letters of dismissal: He alleges that Annexure E referred to above is a distortion of facts as the deponent thereof had made another affidavits in CIV/APN/155/90 whose contents contradict the averments in the present affidavit. I have compared the two affidavits and found no distortion of facts. The first affidavit was a replying affidavit and the deponent was replying to specific allegations made in the answering affidavit. The announcement that the respondents were dismissed and had to receive their letters of dismissal did not arise in the replying affidavit of Matholaz. But a mention was made of the fact that free transport to Thaba-Tseka was available. Tefo Moroka further deposes that it is illogical to request the Court to order an interdict of entering a construction site of which applicant is not the sole occupier. He avers that ever since the 19th June, 1990 up to the 6th July, 1990 he was /6 - - present at Katse and that none of the respondents blockaded anybody. It is in fact the applicant who closed down the work place and the police guarded the offices which were in fact closed. In reply to this allegation De Ravel avers that possession of the site was given to the applicant by the site owner Lesotho Highlands Development Authority at the start of the development of the site. Accordingly, the construction site is in the possession and under the control of the applicant. Every minor contractor and sub-contractor on site is there with the knowledge and concurrence of the applicant. The intention of the applicant is only to protect its right to carry on with the execution of its construction contract at Katse without unlawful hindrance from unlawful acts of threats and intimidation by respondents against employees of the applicant, sub-contractors and or/their employees. It seems to me that there is substance in what the appli- cant is alleging in that the sub-contracts were awarded to the sub-contractors by the applicant who allowed them to enter the premises or the area of Katse to execute their part of contract. Every sub-contractor and its employees are on the site with the concurrence of the applicants. If they do any unlawful acts or acts which are a violation of the terms of their sub-contracts the applicant is entitled to interdict them, i.e. sub-contractors and their employees from entering Katse Camp. As a possessor of the area of the construction site at Katse the applicant is entitled to protect its right of possession and may even apply for a spoliation order if it is unlawfully evicted from the site. - Mr. Rakuoane, counsel for the respondents submitted that the site in question owned or allocated to the applicant is not clearly demarcated and as such it renders the order to be vague and embarrasing. In other words the respondents are not clearly shown as to which place at Katse belongs to the applicant. There is not substance in this submission because the respondents who worked for applicant at the Katse know the site in question. There is evidence that after the respondents were served with the Rule Nisi they left the area and the construction work is now proceeding normally. Mr. Rakuoane submitted that the application of this nature is normally an application pendente lite. One is usually interdicted pending a certain occurrence which will define permanently one's rights or final declaration by the Court. In the present case the former employees of the applicant are interdicted permanently from entering the unspecified applicant's area. He submitted that t he respondents have the right to seek alternative employment with other employers regardless of whether they are within the purported applicant's site. It seems to me that the order sought by the applicant in prayer 2 (a) was to interdict and restrain the respondents for ever entering applicant's Katse Camp site for the purpose of carrying out unlawful acts such as picketing or blockading the applicant's Katse Camp site or threatening employees of the applicant and sub- contractors from carrying on with the work on the site. The order sought may not have been as precise as it ought to have been hut /8 - 8 - it is quite clear from the affidavits what the applicant asked the respondents to be stopped or interdicted from doing. It is also clear from prayers (b) and (c) that the respondents are being interdicted from carrying out unlawful acts. The respondents cannot be interdicted from entering the site for lawful purposes such as collecting their terminal benefits. It seems to me that interim order especially 2 (a) cannot be confirmed as it stands without any amendment because that would mean that the respondents are permanently interdicted from entering the applicant's Katse Camp site even for carrying out lawful acts. The 335th respondent is a trade union and has to be given free access to the site in order to meet the employees of the applicant who may wish to be members of a trade union in terms of the Trade Unions and Trade Disputes Law of 1964. It would be unlawful to grant a permanent interdict restraining the 335th respondent from entering the applicant's Katse Camp site because the new employees who were employed after the dismissal of the respondents are entitled under our law to join or to organize themselves into a trade union. The 335th respondent must be allowed to enter the site and to tout members. Mr. Rakuoane submitted that the 335th respondent, as an artificial person, cannot assault or prevent applicant's employees from entering its premises. There is no substance in this argument because the 335th respondent acts through its officials who are its agents. For instance, it is alleged that on the 15th May, 1990 the /9 - 9 - 335th respondent acting through Messrs. Tsukulu and Nkhahle declared an illegal strike. (See paragraph 5 of Bernard De Ravel's founding affidavit). A trade union can act through its agents. Mr. Rakuoane further submitted that paragraph 6 of the founding affidavit is hearsay because M r. De Ravel lives here in Maseru and has not disclosed the source of his knowledge. As a general rule hearsay evidence is not permitted in affidavits and hence it is usually necessary to support the applicant's case by affidavits of persons other than the applicant. The applicant can state that "he is informed and verily "believes" but he must then set out in full the facts upon which he bases his grounds for his belief and how he obtained his information. Failure by the applicant to do these things constitutes an irregularity which cannot be cured by the filing of replying affidavits (Lebelo v. Lebelo and another 1976 L. L. R. 206). In paragraph 5 of the founding affidavit Mr. De Ravel does not state that "he is informed and verily believes" but merely says that "he verily believes". However, he has disclosed his source of information by annexing the letter of one Daniel Marin Matholaz who was residing at Katse Camp up to the 18th June, 1990 as the Project Manager. It is quite correct that Mr. De Ravel has not used the usual words "I am informed" but he has disclosed his source of information as Annexure " E ". I am of the view that the evidence in his affidavit cannot be regarded as complete hearsay that can be struck out. /10 - 10 - It is therefore clear that on the 5th July, 1990 when the applicant obtained the interim order, there was admissible evidence before the Court that at least up to the 13th June, 1990 the respondents were still blockading applicant's Katse Camp site and making it impossible for the applicant and its sub-contractors to resume work. This part of the applicant's allegations covering the period from the 16th June, 1990 to the 18th June, 1990 is not challenged by the respondents because in paragraph 5 of his answering affidavit Mr. Tefo Moroka deposes that ever since the 19th June, 1990 up to the 6th July, 1990 he was present at Katse and he avers that during this period none of the respondents blockaded the applicant's construction site at Katse Camp. As the respondents have not denied that during the period from the 16th June, 1990 to the 18th June, 1990 the applicant's construction site at Katse Camp was blockaded by the respondents, I see no reason why the rule nisi should not be confirmed. In his answering affidavit Mr. Tefo Moroka raises what I may call a new defence because he covers a period from the 19th June, 1990. The normal reaction by the applicant was to file replying affidavits by Mr, Daniel Matholaz who avers that on the 5th July, 1990 he returned to Katse Camp having left on the 15th June; he avers that he found that the blockade of the applicant's site was continuing. Another replying affidavit is by Mr. Antal Balatoni who is the applicant's mechanical foreman stationed at Katse. He avers that he was present at Katse Camp from the 15th June to the 19th June, and from the 22nd June, 1990 to the 26th June, 1990. During that period the blockade continued. He was also present on the. 7th July, 1990 when his watertanker driver was assaulted by some of the respondents. /11. - - In Shakot Investments (Pty) Ltd v. Town Council of the Borough of Stander, 1976 (2) S. A. 701 the head note reads as follows: "In consideration of the question whether to permit or to strike out additional facts or grounds for relief raised in the reply affidavit, a distinction must, necessarily, be drawn between a case in which the new material is first brought to light by the applicant who knew of it at the time when his founding affidavit was prepared and a case in which facts alleged in the respondent's answering affidavit reveal the existence or possible existence of a further ground for relief sought by the applicant. In the latter type of case the Court would obviously more readily allow an applicant in his replying affidavit to utilise and enlarge upon what has been revealed by the respondent and to set up such additional ground for relief as might arise therefrom." I am convinced that by covering the period which was not covered by the founding affidavit the respondents invited the applicant to reply and to reveal the existence or possible existence of a further ground for relief it sought. In other words, the new matters which appear for the first time in the replying affidavits cannot be struck out because they are in direct response to the allegations made by the respondents. However, as regards the period from the 19th June, 1990 to the 7th July, 1990 there is a genuine dispute of fact whether the blockade of the construction site continued. This is an issue that can be resolved by hearing viva voce evidence. For / 1 2 . . . .. - 12 - various reasons I do not propose to hear viva voce evidence. The first reason is that ever since the respondents were served with the interim order the blockade of the construction site has stopped. Secondly, as I have stated above the rule nisi covered a certain period only and the respondents have not said anything concerning that period. I do not propose to deal with the allegation that on the 26th June, 1990 the respondents' attorney failed to give a guarantee that work would resume without any interference by the respondents. It seems to me that the attorney was under no obligation to give such guarantee. Mr. Rakuoane submitted that the applicant is not entitled to an order of permanent interdict on motion proceedings in which there is a bona fide dispute of fact. I agree with that submission. In Stellenbosch Farmers' Winery Ltd. v. Stellenvale Winery (Pty) Ltd, 1957 (4) S. A. 234 (C) it was held that where there is a dispute as to the facts a final interdict should only be granted in notice of motion proceedings if the facts as stated by the respondent together with the admitted facts in the appli- cant's affidavits justify such an order. In the instant case the respondents have decided not to deny certain facts relating to a certain period and it must be concluded that they admit those facts In the result I make the following order: /13 - 13 - (a) Prayer 1 (a) of the Rule Nisi is discharged. (b) Prayers 1 ( b ), ( c ), (d) and (e) of t he Rule Nisi a re confirmed. (c) The respondents are ordered to pay 3/5 of the costs of t he application individually and severally one paying the others to be absolved. J. L. KHEOLA JUDGE 19th September, 1990. For Applicant For Respondents - - M r. Moiloa M r. Rakuoane.