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[2013] ZALAC 32
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Togetherness Amalgamated Workers Union of South Africa (TAWUSA) v Bafokeng Rasimone Platinum Mines Joint Venture and Others (JA11/2011) [2013] ZALAC 32 (13 December 2013)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
CASE NO. JA11/2011
Reportable
DATE:
13 DECEMBER 2013
In
the matter between:
TOGETHERNESS
AMALGAMATED WORKERS
UNION
OF SOUTH AFRICA
(TAWUSA)
.............................................................
Appellant
And
BAFOKENG
RASIMONE PLATINUM MINES
JOINT
VENTURE
....................................................................................
First
Respondent
COMMISSION
FOR CONCILIATION MEDIATION
AND
ARBITRATION
........................................................................
Second
Respondent
THULANI
DUBE
N.O.
...........................................................................
Third
Respondent
Summary:
Appeal against costs order. Appellant initially opposed confirmation
of rule nisi. Later withdrew opposition, without tendering
costs. On
return day rule nisi confirmed with costs. Held: The LC properly
exercised its discretion on costs.
Delivered:
13 December 2013
Coram:
Waglay JP et Ndlovu JA et Musi AJA
JUDGMENT
NDLOVU
JA
Introduction
[1]
The appellant (the third respondent in the Court a quo) is a
registered trade union known as Togetherness Amalgamated Workers
Union of South Africa (“the appellant” or “the
union”). The first respondent (the applicant in the Court
a
quo) is Bafokeng Rasimone Platinum Mines Joint Venture, an
unincorporated joint venture between Rustenburg Platinum Mines
Limited,
a member of the Anglo Platinum Group, and Royal Bafokeng
Resources (Pty) Limited (“the company”), carrying on
mining
operations in Rustenburg, North West Province. The Commission
for Conciliation, Mediation and Arbitration (“the CCMA”)
and Mr Thulani Dube (“the commissioner”) are cited herein
as the second and third respondents respectively, but only
as
interested parties with no relief being sought against them, which
was the similar situation in the Court a quo.
The
issue
[2]
The only issue in this appeal is whether the Labour Court properly
exercised its discretion when it awarded a costs order against
the
union in a matter in which the union had opposed (but later withdrew
its opposition) an application instituted by the company
against the
union and its members who were employed by the company. The appeal
comes to this Court with the leave of the Court
a quo.
Factual
background
[3]
The company had some 3200 employees of its total workforce. It is
common cause that in terms of a collective agreement, known
as the
Anglo Platinum Employee Relations Recognition Agreement, concluded
between the company and three specified registered trade
unions
(excluding the appellant) the company’s recognition policy was
that a trade union seeking recognition in the workplace
had to have
employee members constituting at least 40% of the company’s
total workforce. The appellant alleged that since
it had 1250 members
employed by the company, which was in excess of the required 40%
threshold, it was therefore entitled to organisational
rights in
terms of the Labour Relations Act, 1965, and the collective
agreement . The company disputed the appellant’s averment
in
this regard and even what the appellant alleged were verified figures
of its membership.
[4]
On 2 February 2010 the union referred a dispute to the CCMA for
conciliation. The dispute was characterised by the union as
“Organisational rights – s 22(1) (4) of the Labour
Relations Act”. The conciliation process failed to resolve
the
dispute and, on 23 February 2010, the commissioner issued a
certificate of outcome to that effect and, in addition, endorsed
on
the certificate that the dispute could then be referred for a strike
action. On 24 March 2010 the union gave notice of an intention
to
embark on a strike action on 29 March 2010, but which did not
materialise. On 1 April 2010 the union issued a further notice
advising the company that the strike would start on 7 April 2010. The
strike action was actually commenced on 8 April 2010.
[5]
According to the company, its representative at the conciliation
meeting had pointed out to the commissioner that this dispute,
in
fact, involved an alleged refusal to bargain which was supposed to
be referred for an advisory award before a strike notice
could be
issued . According to the company, the union had, however,
undertaken not to allow its members to embark on the strike
action
but to engage with the company on the matter.
[6]
As stated already, the strike action was commenced by the union
members on 8 April 2010. According to the company, the industrial
action was accompanied by acts of violence and intimidation on the
part of the union members.
[7]
At this stage the company sought to challenge the validity of the
certificate of outcome aforesaid and the lawfulness of the
strike
action. Before it did so, the company’s attorneys of record,
on 8 April 2010, faxed a letter to the union pointing
out that the
certificate of outcome was “erroneously granted” and that
the strike action was therefore not protected.
On 9 April 2010 the
union responded and contended that the strike action was protected.
Thereafter the parties appeared to attempt
to resolve the dispute
amicably through a verification process of the union membership in
the company’s workplace. However,
the process proved
unsuccessful. In the meantime the strike action continued unabated.
On 21 April 2010 the company then issued
a notice , advising the
union that it would be approaching the Labour Court on an urgent
basis for an interdict against the strike
action.
[8]
Indeed, on or about 21 April 2010 the company approached the Labour
Court on an urgent basis seeking an order in the following
terms :
1.
Directing that the forms and service provided for in the rules of
this Court be dispensed with and that this matter be dealt
with as
one of urgency in terms of Rule 8;
2.
That a rule nisi do issue, calling upon the Respondents to show cause
on 21 May 2010 why an order should not be issued in the
following
terms:
2.1
That the certificate issued by the Second Respondent under case
number NWRB 227-10, dated 23 February 2010 (“FA8”),
authorising the Third Respondent to embark on strike action on the
issue in dispute be reviewed and set aside;
2.2
That the strike action by the Third Respondent’s members be
declared to be unprotected and unlawful for want of compliance
with
Section 64(2) of the Labour Relations Act, 1995 (“the LRA”);
2.3
That the members of the Third Respondent employed by the Applicant be
interdicted and restrained from participating in the said
unlawful
strike;
2.4
That the Third Respondent, its office bearers, officials and members
be interdicted from encouraging the current strike or to
participate
therein;
2.5
That the Third Respondent be ordered to pay the costs of this
application.
3.
That the orders in 2.3 and 2.4 above operate as interim interdicts
with immediate effect pending the return day.
4.
Alternative relief”
[9]
The company’s urgent application was set down for hearing on 23
April 2010 at 12h00. On that day the Court a quo granted
the rule
nisi and interim relief in terms of paragraphs 1, 2 and 3 of the
order prayed, referred to above, save that the return
date was
changed to 4 June 2010. In addition thereto, the Court issued further
directions numbered paragraphs 4 to 7, as follows:
“
4.
The 3rd Respondent is directed to instruct its members employed by
the Applicant that the strike is unlawful, that they should
discontinue the strike and return to work.
5.
The 3rd Respondent is to serve and file its answering affidavit by
the 7th of May 2010.
6.
The Applicant is to serve and file its reply, if it so wish (sic) by
12 May 2010.
7.
The costs of the application to date are reserved for determination
on the return date.”
[10]
The union opposed the interdict application and filed its answering
affidavit whereby it denied that the certificate was erroneously
granted and submitted that the company’s application was
without merit. However, prior to the return day, the union filed
a
notice of withdrawal of opposition “except for costs”,
which reads thus:
“
Kindly
take notice that the Third Respondent hereby withdraws its opposition
to the application due to the applicant agreeing to
the verification
process.
Kindly
take further notice that the Third Respondent is however opposed to
the costs order against its kindself and argument in
this regard
shall be tendered in the hearing of this matter should it be
necessary.”
Grounds
of appeal
[11]
The grounds of appeal relied upon by the union can be summarised as
follows:
11.1
The Court a quo erred in failing to consider that the dispute was not
about the refusal to bargain but about organisational
rights, which
was clearly indicated in the CCMA documents.
11.2
Had the Court a quo properly considered that the dispute was about
organisational rights, it would have found that the dispute
did not
necessarily have to be referred for an advisory award before the
union members could embark on a protected strike action.
11.3
The Court a quo erred in failing to find that the union had achieved
the 40% threshold and was therefore entitled to organisational
rights
in the company’s workplace in terms of the collective
agreement.
11.4
The Court a quo erred in failing to consider that the union’s
opposition to the company’s urgent application was
not
unreasonable, mala fide and frivolous.
Analysis
and evaluation
[12]
As stated already, on 23 April 2010 the Court a quo granted the rule
nisi and, on the question of costs, directed that “[t]he
costs
of the application to date are reserved for determination on the
return date.” Given the union’s withdrawal of
its
opposition to the confirmation of the rule nisi, the Court a quo, on
the return day confirmed the rule nisi on an unopposed
basis, without
giving reasons. Notwithstanding the union’s ‘caveat’
in the withdrawal notice that its withdrawal
was “except for
costs”, the Court a quo confirmed the rule nisi with costs.
[13]
In terms of the LRA the Labour Court is a court of law and equity
and may make an order of costs “according to the requirements
of the law and fairness” . As such, when exercising its
discretion on the question of costs, the Court must always pay due
regard to the requirement not only of the law, but also of fairness
to both sides. On this basis, it follows, in my view, that
when a
party withdraws an action, application or defence, as the case may
be, such withdrawing party should tender the costs incurred
by the
other party, unless there is a compelling reason for the withdrawing
party not to do so . Otherwise, it would be unfair
to the other
party which would have incurred costs as a result of the said action,
application or defence, now sought to be withdrawn.
[14]
In the present instance the union sought to withdraw its opposition
against confirmation of the rule nisi, but without tendering
costs.
No explanation was offered by the union as to why it should not pay
the company’s wasted costs. In my view, the union
ought to have
tendered such costs. For this reason alone, I would dismiss the
appeal.
[15]
In any event, it seems to me that the union had no reasonable
prospects of success on the merits of its opposition to the company’s
urgent application. The substantive issues which the union constantly
raised in relation to its opposition against confirmation
of the rule
nisi were rendered irrelevant by its withdrawal of that opposition.
It is noted that the essence of the union’s
complaint at the
CCMA was that the company was refusing to recognise it (the union) as
a collective bargaining agent of its members
employed by the company.
This is precisely how the concept of ‘refusal to bargain’
is defined in the LRA. More importantly,
section 64(2) of the LRA
provides that “[i]f the issue in dispute concerns a refusal to
bargain, an advisory award must have
been made in terms of section
135(3)(c) before notice is given in terms of subsection(1)(b) or (c)”
[i.e. the strike notice].
[16]
Therefore, it did not matter how the union had elected to
characterise the dispute at the time of its referral to the CCMA,
but
what mattered was what the real dispute between the parties was. I am
satisfied that in the present matter the real dispute
between the
parties was the alleged refusal to bargain. In National Union of
Metalworkers of SA and Others v Driveline Technologies
(Pty) Ltd and
Another, this Court (per Zondo AJP, as he then was) stated, in part,
as follows :
‘
[62]
The position is … that a party cannot change the nature of the
dispute. I would add that the conciliating commissioner
is also bound
not to change the nature of the real dispute between the parties. If
he did, the party that seeks to take the matter
further would not be
bound by a wrong description of the dispute but would have a right to
take further the true dispute that was
referred to conciliation and
to give a correct description of the dispute. What the parties are
bound by is the correct description
of the real dispute that was
referred to conciliation.
[17]
It is further noted that prior to the company instituting the urgent
application it had, on 8 April 2010, written a letter
to the union
warning it about the fact that the certificate of outcome, which the
union relied upon for its strike action, was
“erroneously
granted” for the reasons stated in the letter and that,
therefore, the certificate was invalid and the
strike action
unprotected. The union would not budge. Again, on 21 April 2010, the
company warned the union by another letter that
it (the company) was
then approaching the Labour Court for an urgent interdict. Still, the
union members did not stop the strike.
As a final resort, the company
instituted the urgent interdict proceedings.
[18]
It is common cause that the dispute was not referred for an advisory
award but, instead, the commissioner issued the certificate
of
non-resolution of the dispute and in terms of which the commissioner
indicated that, as the next step, the union could embark
on a strike
action. Hence the company sought a Court order, on an urgent basis,
stopping the strike action by the union members.
This is the urgent
application by the company which the union initially opposed and
later withdrew its opposition to without tendering
the wasted costs.
[19]
For these reasons, I am satisfied that the learned Judge a quo
properly exercised his discretionary power, in terms of section
162(1) of the LRA, when he awarded costs against the union as he did.
The appeal, in my view, must fail. However, having regard
to the
requirement of law and fairness to both parties, there should, in my
view, be no order as to costs in this appeal.
The
order
[20]
In the result, the following order is made:
1.
The appeal is dismissed.
2.
There is no order as to costs in the appeal.
Ndlovu
JA
Waglay
JP and Musi AJA concur in the judgment of Ndlovu JA
Appearances:
For
the Appellant:
.................
Mr S
Morwane (union official)
For
the respondent:
…........
Advocate
PG Seleke
Instructed
by:
…...................
Webber
Wentzel Attorneys, Johannesburg