Anglo’s bid to bust Amcu

2014-02-23 14:01

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Platinum producer launches one legal attack to bankrupt the union and another to get its leaders arrested for contempt of court

Anglo American Platinum (Amplats) has apparently set out to cripple the Association of Mining and Construction Union (Amcu), launching one legal action to bankrupt it and another to try to get its leadership arrested for contempt of court.

Amplats filed the contempt application in the labour court on February 13, one day before going to the North Gauteng High Court to file a claim for R586?million in damages against the union.

The labour court application asks for an urgent order that Amcu president Joseph Mathunjwa, treasurer Jimmy Gama and 38 shop stewards at Amplats “be incarcerated for such period as the court deems appropriate” or, as an alternative, that they all be individually fined.

The application led to a heated session at the labour court in Braamfontein on Friday morning, where it was agreed to postpone the case against Mathunjwa and Gama until March 5, while the shop stewards will be back in court in April.

The battle revolves around a contentious set of picketing rules that were set by the company at the Commission for Conciliation, Mediation and Arbitration (CCMA) a day before the strike started more than four weeks ago.

One day into the strike the company went to the labour court to get an urgent interdict against unlawful acts by strikers, but also to turn the picketing rules into a court order, paving the way for the contempt application.

Amcu claims the picketing rules are unduly restrictive and in any case are not enforced by a court order.

The rules were set without Amcu input in Rustenburg while Amcu’s leadership was in Johannesburg for a separate court case against the Chamber of Mines relating to the gold sector.

Amplats argues Amcu’s defence that they had to be at court instead of at the CCMA is nonsensical as Amcu “has several national leaders”.

The separate and widely reported attempt to claim R586?million from Amcu will likely drag on.

The claim for damages completely dwarfs any previous attempt to sue a union.

Only R4.9?million of the astronomical sum relates to physical riot damage, mostly an excavator Amplats says was burned, as well as damage to motor vehicles, road surfaces, road signs and fences.

Another R20?million relates to additional security costs.

The bulk of the claim, R561.34?million, is for “production damages due to intimidation”.

This is based on “direct mining fixed costs paid with no production benefit” for 17 shifts from January 23 to February 13.

It claims that non-striking employees are intimidated to the extent that they can’t go to work even though the mines are still running up operating expenses.


The allegations

In its court papers, Amplats lists 27 incidents it says show ­Amcu’s disregard for the picketing rules. Most of these involve strikers blocking roads or marching outside of designated picketing areas, often carrying sticks, sometimes burning tyres.

A number of stone-throwing incidents are listed.

One incident of serious violence is listed, involving a non-striker who allegedly was assaulted by a group of Amcu members, ­including shop stewards, and left for dead on a municipal dump.

Another non-striker was allegedly threatened with a knife and Amplats also lists two men with balaclavas and guns entering a bus full of non-strikers and threatening them, while other strikers waited outside to beat up workers who fled through the windows. Amcu has written to Amplats specifically denying the last incident involving its members.

The only casualty thus far has been an Amcu official, ­Khayalethu Ncedani, who was shot dead by police.


Suing unions

There are two ways to sue a union, as opposed to individuals.

Amplats’ claim for “riot damages” stems from the Regulation of Gatherings Act, enacted in the turbulent early 1990s.

The Constitutional Court in 2012 made a ground-breaking judgment that this act can be used against unions when their marches go awry.

That case, involving a R1.5?million claim against Satawu by the City of Cape Town and a number of Capetonian businesspeople, was greeted as a major blow for unions.

Amplats was one of the first employers to use section 68 of the Labour Relations Act (LRA) against a union when it claimed R15?million from the Mouthpeace Workers’ Union in 1999.

The Mangaung municipality in 2003 sued Samwu for R270?000 after an unprotected strike by employees of Bloemfontein’s electrical department. In 2009 the Algoa Bus Company in Richards Bay sued Satawu for R465?000.

Apollo Tyres in Durban sued Numsa and its members for almost R14?million in 2009.

In 2012 Gold One sued the Professional Transport and Allied Workers’ Union at the Modder East gold mine for R9.9?million. This case is still in the courts.

All these strikes were, however, unprotected “wildcat” strikes, while the current Amcu strike is protected.

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