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[2008] ZALCJHB 88
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Autopax Passengers Services (Pty) Ltd v South African Transport & Allied Workers Union (J900/06) [2008] ZALCJHB 88 (5 August 2008)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD AT
JOHANNESBURG
CASE
NO: J900/06
In
the matter between:
AUTOPAX
PASSENGERS SERVICES (PTY)
LTD
Applicant
and
SOUTH
AFRICAN TRANSPORT & ALLIED WORKERS UNION
Respondent
JUDGMENT
FRANCIS
J
1.
This is an application to consider who is liable for the costs
reserved on 5 June 2006 after the applicant had postponed its
urgent
application to declare a secondary strike as unprotected that the
respondent had intended to embark upon with effect on
2 June 2006.
2. The
application was opposed by the respondent
3. It
is common cause that the respondent gave the applicant notice of its
intention to embark upon a secondary strike on 24 May
2006. The
strike was scheduled to take place on 2 June 2006. On 1 June
2006 the applicant attempted to fax a letter
to the respondent
requesting,
inter alia
,
on what specific grounds the respondent contended that the secondary
strike action against the applicant was reasonable etc.
The
applicant’s attorney was unable to fax a copy of the letter to
the respondent. Upon making telephonic enquiries
they were
furnished with the email address of the respondent and a copy of the
letter dated 1 June 2006 was sent by email to the
respondent on 1
June 2006.
4. The
applicant stated in its founding affidavit that it did not receive a
response to its email of 1 June 2006. It was only
on the
morning of 2 June 2006 that it established in the Press that the
respondent had decided to temporarily suspend the secondary
strike
pending an assessment of its position in view of a number of
applications brought against the respondent to declare the
secondary
strike as an unprotected strike. It stated that it believed
that the respondent may continue with the secondary
strike at any
point in time as the respondent had not advised the applicant that it
withdrew the notice of the proposed secondary
strike.
5. The
applicant proceeded with the application on 5 June 2006. The
matter was adjourned
sine die
and costs were reserved. On 3 November 2006 the applicant
without leave of this Court, filed a supplementary affidavit.
The respondent filed an opposing affidavit on 1 October 2007.
6. The
applicant has in its supplementary affidavit placed new facts before
this Court that clearly shows that there was no basis
for the
applicant to have proceeded with the application on 5 June 2006.
It is clear from the supplementary affidavit that
the applicant knew
on 2 June 2006 before it had served the application on the respondent
that the respondent had withdrawn its
secondary strike notice.
It appears also that two telephonic conversations had taken place on
2 June 2006 between the respondent
represented by Robert Mokgalabone
and by HS Coetzee, the applicant’s attorney that was not
referred to in the founding affidavit.
The applicant had been
informed in the first telephonic discussion that the respondent had
decided to cancel any secondary strike
action against the applicant.
Coetzee informed Mokgalabone that the urgent application had been
prepared and was set down
for 5 June 2006 at 14h00. The
respondent sent the applicant a facsimile dated 2 June 2006 that it
had withdrawn the notice
of the secondary strike and that it was not
necessary for the applicant to proceed with the urgent application.
7. In
the applicant’s letter dated 2 June 2006 the applicant states
in paragraph four that the respondent’s notice of
withdrawal of
the notice of the secondary strike came after the application had
been prepared and when it was about to be served
upon their offices.
It stated the following in paragraph six of its letter:
“
The
matter is set down for Monday 5 June 2006 at 14:00. In view of
the contents of the your telefax of today our client cannot
ask for
interim relief. We are instructed to apply for the matter to be
postponed to a date in September 2006 to enable the
union to file
papers if necessary and for the matter to be argued in respects of
costs. We intend to ask court to set the
matter down for 5
September 2006 for an argument about ”.
8. It
is unclear why all the facts contained in the supplementary affidavit
were not disclosed in the applicant’s founding
affidavit.
This is disturbing. It appears to have been an attempt to
mislead the court that was going to hear the matter
on 5 June 2006.
The urgent application was initially going to be heard on 2 June 2006
at 14h00. This was confirmed
in the applicant’s email to
the respondent. The secondary strike was due to commence on 2
June 2006. No reasons
were given why the applicant did not
proceed with the application on 2 June 2006. No cogent reasons
could be given why the
applicant proceeded with the application after
the secondary notice to strike was withdrawn. The danger that
may have existed
was no longer there and there was no need to proceed
with the application. The notice of withdrawal of the
strike notice
was faxed to the applicant before the urgent
application was served on the respondent. The withdrawal of the
secondary strike
was clearly unconditional.
9.
There is no legal basis why the respondent is liable for the costs of
the matter reserved on 5 June 2006. The applicant
should have
withdrawn the urgent application.
10.
The application for costs stands to be dismissed.
11.
Both parties sought costs against the other although the parties have
an ongoing relationship. There is no reason why
costs should
not follow the result. Since the application that was postponed
on 5 June 2006 was unopposed, there should be
no order as to costs.
11.
In the circumstances I make the following order:
11.1
The application for costs is dismissed with costs.
11.2
There is no order as to costs in respect of the application postponed
on 5 June 2006.
_____________________
FRANCIS
J
JUDGE OF THE LABOUR
COURT OF SOUTH AFRICA
FOR
THE APPLICANT
: M
LENNOX INSTRUCTED BY HOFMEYER HERBSTEIN & GIHWALA INC
FOR THE
RESPONDENT
:
ATTORNEY M M BALOYI
DATE
OF HEARING
: 31 JULY
2008
DATE OF
JUDGMENT
: 5
AUGUST 2008