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[2007] ZALCCT 11
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National Union of Mineworkers v Black Mountain - A Division of Anglo Operations Ltd (C380/2007) [2007] ZALCCT 11 (2 August 2007)

IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT CAPE TOWN
Case
Number C380/2007
In
the matter between:
NATIONAL
UNION OF
MINEWORKERS

APPLICANT
and
BLACK
MOUNTAIN
–
A DIVISION OF ANGLO
OPERATIONS
LIMITED

RESPONDENT
JUDGEMENT
BASSON,
J
3)
This is an urgent application for an order –
(i)
declaring that the notice of lock-out issued to the Applicant
and its
members by the Respondent at 17H15 on 11 July 2007 to be invalid and
of no force and effect;
(ii)
declaring that the Respondent’s lockout of the Applicant’s

members with effect from 6H00 on 14 July 2007 to be unprotected under
section 68 of the Labour Relations Act 66 of 1995 (hereinafter

referred to as the “LRA”);
(iii)
interdicting and restraining the Respondent forthwith from continuing
with
the lock-out;
(iv)
directing the Respondent to permit all of the members of the
Applicant who
have been locked out in accordance with the lock-out to
return to work;
(v)
declaring that all of the Applicant’s members who have been

precluded from working at the Respondent’s operations as a
consequence of the aforesaid lock-out are entitled to be remunerated

as if they had worked their normal shifts during the period of the
lock-out.
4)
In addition hereto, the Applicant also sought an order declaring that
all the acceptance forms signed by members of the Applicant
who have
elected to resume employment to be void and of no effect and to
declare that certain clauses in the acceptance form are
unlawful in
that they constitute an invasion of the individual worker’s
right to strike and are in contravention of the provisions
of section
5(3) of the LRA. In its reply the Applicant indicated that it no
longer sought these orders in respect of the acceptance
forms. As a
result the only issue that remained to be decided on the papers was
in respect of the legality of the lock-out.
BACKGROUND
TO THIS DISPUTE
5)
I do not intend referring to the background to this dispute in much
detail in light of my conclusion that the matter is not urgent
and
that it should accordingly be struck of the roll. Suffice to briefly
point out that the parties have for some time been locked
in a
dispute about the wage gap between certain grades in the bargaining
unit. In an attempt to find a solution to this dispute,
it was
initially agreed that the parties would proceed with a job evaluation
programme whereby all the positions within the bargaining
unit would
be evaluated. The parties were, however, not able to agree on an
appropriate job evaluation programme or system which
would be used to
assist in determining a broad-banded job structure for all jobs in
the bargaining unit.
6)
In September 2005 the Respondent proposed that the so called “JE
Manager” system be used in the job evaluation exercise
in an
attempt to close the wage gap between level 1 and C1. The parties
could not agree on this evaluation system. Ultimately the
Respondent
proposed that the so-called “Proudfoot Organizational
Alignment” system be used. This seemed to be acceptable
to the
union. The parties later came to refer to this system as the “In
die Kol”- project. Unfortunately the “In
die Kol”
project failed and in October 2006 the Respondent took a further
initiative and introduced the so-called “Career
Development
System” (hereinafter referred to as the “CDS”) to
progress the outcomes which it had hoped the “In
die Kol”
project would produce. Again the parties could not resolve the
longstanding and ongoing dispute between them and
on 15 December 2007
the Applicant declared a dispute. It appears from the minutes of the
meeting held on 15 December 2006 that
the Applicant had informed the
Respondent that they were “no longer prepared to take the
immense pressure from there (sic)
members regarding the non-delivery
of this project. The members gave them a mandate in October to
declare a dispute”.
7)
On 31 January 2007 the Applicant delivered a letter to the Respondent
in which it formally declared a dispute in respect of the
CDS. Two
further dispute meetings were held between the disputing parties in
accordance with the Recognition and Procedural Agreement
whereafter
the dispute was referred to the CCMA. The referral form described the
dispute as one relating to the “In die Kol/CDS”.
A
certificate of non-resolution was issued on 17 May 2007. After the
mandatory “
cooling off period
” of 5 days was
observed, a strike notice was issued. Members of the Applicant
embarked on protected strike action on 17 June
2007.
8)
According to the Applicant’s papers the strike lasted until 6
July 2007 when Mr. Vass (the deponent of the founding affidavit
and
the full-time shopsteward of the Applicant) informed Mr. Van der
Mescht (the Respondent’s Employee Relations Manager)
and Mr.
Hans Botha (the Human Resources Manager) that the Applicant was
“
suspending
” the strike. The founding affidavit
further states as follows: “
The parties had not yet reached
agreement, but the return to work signaled intensified attempts by
the Applicant to negotiate a
settlement
.” It was contended
by the Respondent that Vass had informed Van der Mescht (the deponent
of the answering affidavit) that
“
[o]ns kom net terug werk
toe sodat die manne se mae weer kan vol word. Dan sal ons weer met
ons dinge begin
”.
9)
A written lock-out notice was issued by the Respondent on 11 July
2007. In this notice the Respondent demanded,
inter alia
, the
unconditional acceptance of the CDS. This demand corresponds with the
dispute which the Applicant had referred to the CCMA
and in respect
of which a non-resolution certificate was issued. I interpose here to
point out that it was the Respondent’s
case that the lock-out
was lawful in light of the fact that –
(i)
more than 48 hours notice of the commencement of the lock-out was

given;
(ii)
the demand in relation to the lock-out was set out clearly in the
notice;
and
(iii)
the demand was in respect of the same dispute that
was referred to
the CCMA. In this regard the notice stated that the lock-out was for
the purpose of compelling the employees to
accept this demand and was
in response to the strike over the same issues which had been ongoing
for three weeks and which had
not been abandoned. The lock-out was
further in respect of the employees in the bargaining unit.
9)
It was, however, the case for the Applicant that the lock-out was
unlawful and argued that a lock-out cannot be resorted to after
a
strike had ended or, put differently, in circumstances where there is
no longer a refusal to work.
10)
After the commencement of the lock-out the respondent made an offer
to all the employees in the bargaining unit. In terms of
this offer
the Respondent offered to all employees to accept the CDS as set out
in the lock-out notice and to return to work in
full and final
settlement of the CDS dispute. Those employees who timeously accepted
the offer would receive 50% of their basic
wages that they had lost
as a result of the lock-out that had commenced on 14 July 2007. It
was common cause that some of the members
of the Applicant had
accepted the offer.
URGENCY
11)
From the aforegoing it is clear that the lock-out notice was issued
on 11 July 2007 with effect from 06H00 on 14 July 2007.
What is,
however, also clear is that the present urgent application was only
filed with this Court on 30 July 2007 which is approximately
three
weeks after the lock-out notice was issued to the members of the
Applicant. Moreover this application was brought on 48 hour’s

notice.
12)
It is trite that an applicant who approaches this Court on an urgent
basis must make out a case for urgent relief on the papers
in
sufficient particularity. This much is clear from Rule 8 of the Rules
of the Labour Court which expressly states that a party
that applies
for urgent relief must file an application that complies with the
requirements of Rule 7(1); 7(2); 7(3) and if applicable
7(7) of the
Rules.  Rule 7(2) expressly requires that the affidavit in
support of the application
must
contain the following:
(a) the reasons for
urgency and why urgent relief is necessary;
(b) the reasons why the
requirements of the rules were not complied with, if that is the
case; and
(c) if a party brings an
application in a shorter period that that provided for in terms of
section 68(2) of the Act, the party
must provide reasons why a
shorter period of notice should be permitted.
13)
Urgency in
itself does not relieve a party from this obligation and the
Applicant should, in as much detail as possible, place such
facts
that are necessary before the Court and which will enable this Court
to decide whether the forms and service provided for
in the rules
should be dispensed with.
[1]
Only once an applicant has persuaded the Court that sufficient
grounds exist which necessitate a relaxation of the Rules and
ordinary
practice, will the Court proceed to consider the matter as
one of urgency. The extent to which the Court will allow parties to
dispense with the Rules relating to time periods will depend on the
degree of urgency in the matter.
[2]
14)
In the
present matter the founding affidavit is devoid of any explanation of
the reasons for urgency and why urgent relief is necessary.
[3]
It is also not sufficient to rely on an argument based upon
implications and deductions which may be made from allegations
contained
in the affidavit that the matter is urgent.
[4]
In fact, the founding affidavit does not address the question of
urgency at all: Apart from prayer 10 of the Notice of Motion in
terms
of which condonation is sought for the Applicant’s
non-compliance with the relevant provisions of the LRA and the Rules

of this Court, no case has been made out on the papers as to why
there should be a departure from the normal rules. More in particular

the Applicant does not event attempt to explain why this application
was not brought to this Court shortly after the lock-out notice
was
issued. It is trite that an Applicant cannot create its own urgency
by delaying bringing an application.
[5]
This Court will not come to the assistance of an applicant who has
delayed approaching the Court.
[6]
See
National
Police Services Union & Others v National Negotiating Forum &
Others
(1999) 20
ILJ
1081 (LC) at 1092 paragraph [39] where Van Niekerk, AJ stated the
following:
“
The latitude
extended to parties to dispense with the rules of this court in
circumstances of urgency is an integral part of a balance
that the
rules attempt to strike between time-limits that afford parties a
considered opportunity to place their respective cases
before the
court and a recognition that in some instances, the application of
the prescribed time-limits or any time-limits at
all, might occasion
injustice. For that reason, rule 8 permits a departure from the
provisions of rule 7, which would otherwise
govern an application
such as this. But this exception to the norm should not be available
to parties who are dilatory to the point
where their very inactivity
is the cause of the harm on which they rely to seek relief in this
court. For these reasons, I find
that the union has failed to satisfy
the requirements relating to urgency.”
15)
As already indicated the Applicant in the present matter has launched
this application on 48 hours notice to the Respondent
approximately
three weeks after the lock-out notice was issued to the employees.
Yet the Applicant does not tender any explanation
for the delay in
its founding papers. I am in light of the aforegoing of the view that
the Applicant has created its own urgency
by the substantial delay.
Furthermore, the application does not comply with the provisions of
Rule 8 of the Rules of this Court
which spells out in clear terms
what is expected of an Applicant when he or she approaches this Court
on an urgent basis. Consequently,
I am of the view that the
application falls to be struck of the role on this basis alone.
COSTS
16)
In respect
of costs it was argued by the Respondent that costs should be awarded
including the costs of two counsel. On behalf of
the Applicant it was
argued that a costs order will be inappropriate in light of the fact
that there is an ongoing relationship
between the parties.
[7]
17)
It is indeed so that parties before this Court frequently have an
ongoing relationship that will have to survive long after
the dispute
has been entertained by the Court. In exercising the discretion
whether or not the general rule should be followed
namely that costs
follow the event, it is necessary to have proper regard to all the
facts and circumstances including but not
limited to the conduct of
the parties in bringing this application on an urgent basis before
this Court. I am of the view that
a cost order is appropriate in the
present circumstances: The Applicant has approached this Court on an
urgent basis where clearly
it has created its own urgency. Moreover,
its papers are fatally defective in the sense that it contains no
explanation for delaying
the application until now.
18)
In the event the following order is made:
The application is struck
off the role with costs (including the costs of two counsel).
_____________________
BASSON,
J
DATE
OF HEARING
: 1 AUGUST 2007
DATE
OF JUDGEMENT
: 2 AUGUST 2007
FOR
THE APPLICANT:
P
Gamble SC
H
Rabrin-Naicker
Instructed
by Cheadle Thompson & Haysom Inc
FOR
THE RESPONDENT:
M
Wallis SC
ML
Norton
Instructed
by Edward Nathan Sonnenburg
[1]
See
Moyo
& Others v Administrator of the Transvaal & Another
(1988) 9
ILJ
372 (W) at 387I: “An applicant who seeks relief by way of
notice of motion should put all the facts, in as much detail
as
possible, before the Court. The mere fact that an application is
urgent and urgent relief is sought does not relieve an application

of this duty.”
[2]
See the well-known and often quoted decision in
Luna
Meubel Vervaardigers (Edms) Bpk v Makin and Another (t/a Makin's
Furniture Manufacturers)
1977 (4) SA 135
(W) where the Court set out the principles as
follows: “Undoubtedly the most abused Rule in this Division is
Rule 6 (12)
which reads as follows:
"12
(a)        In urgent applications
the court or
a judge may  dispense with the forms and service
provided for in these rules and may dispose of such matter at such
time
and place and in such manner and in accordance with such
procedure (which shall as far as practicable be in terms of these
rules)
as to it seems meet.
(b)
In every affidavit or petition filed in support of the application
under para. (a)
of this sub-rule, the applicant shall set forth
explicitly the circumstances which he avers render the matter urgent
and the
reasons why he claims that he could not be afforded
substantial redress at a hearing in due course".
Far
too many attorneys and advocates treat the phrase "which shall
as far as practicable be in terms of these rules",
in sub-rule
(a) simply pro non scripto. That this phrase deserves emphasis is
apparent also from the judgment of RUMPFF, J.A.
(as  he then
was), in Republikeinse Publikasies (Edms.) Bpk. v Afrikaanse Pers
Publikasies (Edms.) Bpk.,
1972 (1) SA 773
(AD) at p. 782B. Once an
application is believed to contain some element of urgency, they
seem to ignore (1) the general scheme
for presentation of
applications as provided for in Rule 6; (2) the fact that the Motion
Court sits on Tuesdays through
F to Fridays; (3) that, for
matters to be on this roll on any particular Tuesday, the papers
must be filed with the Registrar
by 12.00 noon on the preceding
Thursday; (4) that the time of day at which the Court commences its
daily sittings is 10.00 a.m.
and that, when it has adjourned for the
day, the next sitting commences on the next day at 10.00 a.m.
These
practitioners then feel at large to select any day of the  week
and any time of the day (or night) to demand a hearing.
This is
quite intolerable and is calculated to reduce the good order which
is necessary for the dignified functioning of the
Courts to
shambles. Frequently one reminds counsel of certain basic matters,
which I shall detail presently, only to be met with
the answer that
they and their attorneys are simply  following practices which
have arisen in the course of time. I am not
convinced that this is
so. I do not think that the majority of the members of the Bar or
Side Bar follow such practices as I
shall presently show with
reference to the motion roll presently before Court.
For
the sake of clarity I am going to set forth the important aspects of
"urgency". In doing so I shall not deal with
those ex
parte applications which fall under Rule 6 (4). Urgency involves
mainly the abridgement of times prescribed by the Rules
and,
secondarily, the departure from established filing and sitting times
of the Court. The following factors must be borne in
mind. They are
stated thus, in ascending order of urgency:
1.
The question is whether there must be a departure at all from the
times prescribed
in Rule 6 (5) (b). Usually this involves a
departure from the time of  seven days which must elapse from
the date of service
of the papers until the stated day for hearing.
Once that is so, this requirement may be ignored and the application
may be set
down for hearing on the first available motion day but
regard must still be had to the necessity of filing the papers with
the
Registrar by the preceding Thursday so that it can come onto the
following week's motion roll which will be prepared by  the

Motion Court Judge on duty for that week.
2.
Only if the matter is so urgent that the applicant cannot wait for
the next
motion day, from the point of view of his obligation to
file the papers by the preceding Thursday, can he consider placing
it
on the roll for the next Tuesday, without having filed his
papers by the previous Thursday.
3.
Only if the urgency be such that the applicant dare not wait even
for the next
Tuesday, may he set the matter down for hearing in the
next Court day at the normal time of 10.00 a.m. or for the same day
if
the Court has not yet adjourned.
4.
Once the Court has dealt with the causes for that day and has
adjourned, only
if the applicant cannot possibly wait for the
hearing until the next Court day at the normal time that the Court
sits, may he
set the matter down forthwith for hearing at any
reasonably convenient time, in consultation with the Registrar, even
if that
be at night or during a weekend.
Practitioners
should carefully analyse the facts of each case to determine, for
the purposes of setting the case down for hearing,
whether a greater
or lesser degree of relaxation of the Rules and of the ordinary
practice of the Court is required. The degree
of relaxation should
not be greater than the exigency of the case demands. It must be
commensurate therewith. Mere lip service
to the requirements of Rule
6 (12) (b) will not do and an applicant must make out a case in the
founding affidavit to justify
the particular extent of the departure
from the norm, which is involved in the time and day for which the
matter be set down.”
[3]
See also the decision in
Mbaru
& Others v Snacktique (Pty) Ltd
[1997]
6
BLLR
767
(LC) at 768D where the Court held as follows: “It appeared
that the application was fatally flawed because the founding

affidavit did not contain (under oath) the reasons for urgency and
why urgent relief was necessary. In other words, the urgent

application did not comply with the provisions of rule 8 of the
Rules of Court”.
[4]
See
Eniram
(Pty) Ltd v New Woodholme Hotel (Pty) Ltd
1967 (2) SA 491
(E) at 493A – G: “Sub-rule (12) provides
that the Court may dispense with the ordinary notice generally
required
for applications by way of notice of motion in urgent
applications. The Rule requires the applicant seeking such
indulgence to
set forth explicitly the circumstances which he avers
render the matter urgent and also to forth explicitly the reasons
why he
claims that he could not be afforded substantial redress at a
hearing in due course. The practice in this Division, and in my
experience also in other Divisions, has been for a petitioner
seeking to rely on the provisions of this Rule to include a
reference
in his affidavit to the urgency of the matter and to ask
the Court explicitly to dispense with the requirement demanded of an
ordinary notice of motion.
It
has not been the practice to rely simply on arguments based on
implications and deductions which may be made from allegations

contained in the affidavits, and to my mind the Rule contemplates a
request to the Court to treat the matter as one of urgency
and to
condone the non-compliance with the normal procedure on notice
prescribed earlier in the Rule.
True, a mere request for the matter to be treated as one of urgency
is not in itself sufficient, but facts must also be laid
before the
Court to support the allegation that the matter is one of urgency…….
I am not persuaded on the papers
presently before the Court that I
should accede to this argument, more particularly when Mr Smalberger
has pertinently taken
the point of non-compliance with the Rule. I
regard it as desirable that an applicant seeking to dispense with
the ordinary procedure
should set out in his affidavit that he
regards the matter as one of urgency, and should refer explicitly to
the circumstances
on which he bases this allegation and the reasons
why he claims that he could not be afforded substantial relief at
the hearing
in due course.” (Own emphasis.)
[5]
See
Schweizer
Reneke Vleis Mkpy (Edms) Pbk v Die Minister van Landbou en Andere
1971 (1) PH F11 (T) at F11 - 12: “Volgens die gegewens voor
die Hof wil dit vir my voorkom dat die applicant alreeds vir
meer as
‘n maand weet van die toedrag van sake waarteen daar nou
beswaar gemaak word. Die aangeleentheid het slegs dringend
geword
omdat die applikant getalm het en omdat die tweede respondent, soos
die applikant lankal geweet het of moes geweet het….
Al
hierdie omstandighede in ag genome is ek nie tevrede dat die
applikant voldoende gronde aangevoer het waarom die Hof op hierdie

stadium as ‘n saak van dringendheid moet ingryp nie. Ek is
dus, in die omstandighede, nie bereid om af te sien van die
gewone
voorskrifte van reël 6.”
[6]
See in this regard
Director
of Public Prosecutions (Western Cape) v Midi Television (Pty) Ltd
t/a E TV
2006 (3) SA 92
(C) at paragraph 47.
[7]
See
in this regard
NUM
v East Rand Gold and Uranium Co Ltd
[1991] ZASCA 168
;
1992 (1) SA 700
(A) at 738F 0 739G.