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[2015] ZALCJHB 173
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Bokoni Platinum Mine (Pty) Limited v General Industries Workers Union of South Africa (J107/2014) [2015] ZALCJHB 173 (2 June 2015)
REPUBLIC OF SOUTH
AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case no. J107/2014
DATE: 02 JUNE 2015
Not Reportable
In the matter between:
BOKONI PLATINUM MINE (PTY)
LIMITED
....................................................................
Applicant
And
GENERAL INDUSTRIES WORKERS
UNION OF SOUTH
AFRICA
.....................................................................................
First
Respondent
THOSE NAMES APPEARING ON
ANNEXURE “A”
HERETO
...............................................................
Second
to Further Respondents
Heard: 29 May 2015
Delivered: 2 June 2015
Summary: (Cost award-interim strike
interdict - not warranted in the circumstances)
JUDGMENT
ON COSTS
[1] This is a matter in which strike
action by the respondent union and its members was interdicted in
terms of a rule issued on
29 January 2014. In the initial application
for interim relief the applicant sought an order of costs against the
respondents if
it was opposed. As it happened, it was opposed, though
unsuccessfully. When the rule was issued no specific cost order was
made
relating to the interim application itself. Paragraph 25.2.5 of
the order stated :
“25.2.5 ordering that the costs
of a final order be paid jointly and severally by the respondents in
the event of it being
confirmed.”
(Emphasis added)
[2] The ruling was extended on numerous
occasions until it finally came before me again on 29 May 2015. By
that stage the underlying
dispute had been dealt with and the rule
was discharged by agreement. However, the parties were at odds on the
question of a costs
order. The applicant was not seeking costs for
the various occasions when the rule was extended, but only sought the
costs of the
first application for interim relief and for the costs
of arguing a cost award on the final day.
[3] The respondents argued that since
the rule was not confirmed it would not be in keeping with the
Court’s original order
of costs mentioned above for the Court
to make any order of costs in the matter. The applicant maintains
that paragraphs 25.2.5
of the initial order did not preclude it from
pursuing the costs of the initial application. The applicant also
maintains that
the circumstances which compelled to bring the initial
application were such that the union and its members ought not to
escape
liability for costs.
[4] On the first issue, I think it is
apparent from paragraph 25.2.5 of the order issued on 29 January 2014
that the costs referred
to in that paragraph concern the costs that
would have been awarded if final relief was granted in favour of the
applicant. The
absence of any specific reference to costs of the
initial application was because the costs of that application were
not dealt
with.
[5] On the second issue, it is apparent
that in the course of the run-up to the anticipated strike both
parties adopted fairly intricate
tactical manoeuvres to secure the
most advantageous position in relation to the underlying dispute over
organisational rights.
As a result of that manoeuvring, the
potentially protected status of the planned strike action was by no
means obvious. This is
amply demonstrated by the analysis of the
contentions of the parties in my reasons for the original order. It
may be true that
the union believed by not issuing a strike notice it
might obtain a further tactical advantage to fend off an interdict,
but it
is also true that the protected status of any anticipated
strike was not a straightforward matter in any event. If the
unprotected
status of the anticipated action had been obvious and the
merits of that issue not worth debating, then the union’s
noncommittal
stance on the likelihood of a strike taking place would
be a weightier consideration in the award of costs.
[6] However, in light of the underlying
dispute and its complexities, which certainly justified a debate
about the merits of the
legal status of the anticipated action, I do
not think that the union’s opposition was frivolous.
Consequently, I do not
think that in law and fairness of the
respondents paying the costs of the initial application, but they
should be entitled to the
costs of arguing the award of costs.
Order
[7] Each party must pay its own costs
for the interim application heard on 29 January 2014.
[8] The applicant must pay the
respondent’s costs for opposing an order of costs on 29 May
2015.
R LAGRANGE, J
Appearances:
For the Applicant: A Snider
Instructed by: Webber Wentzel Inc
For the Respondents:M H Marcus
Instructed by:David Cartwright
Attorneys