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[2017] ZALCJHB 65
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Johannesburg Metropolitan Bus Services SOC Ltd v South African Municipal Workers Union and Others (JR2844/16) [2017] ZALCJHB 65 (23 February 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
case
no:
JR
2844/16
In
the matter between:
THE
JOHANNESBURG METROPOLITAN
BUS
SERVICES SOC
LTD
Applicant
and
SOUTH
AFRICAN MUNICIPAL
WORKERS’
UNION
1
st
Respondent
independent
municipal and
allied
trade
union
2
nd
Respondent
DEMOCRATIC
MUNICIPAL AND ALLIED
WORKERS
UNION OF SOUTH
AFRICA
3
rd
Respondent
KEDIBONE
DEON
MAKHURA
4
th
Respondent
THIVALI
DAVID
SIKWENI
5
th
Respondent
MANDLA
ABRAM
NHLAPO
6
th
Respondent
SAMUEL
MOSOMI
7
th
Respondent
SAMUEL
SIHLANGU
8
th
Respondent
THE
PERSONS LISTED IN ANNEXURE “A1”
9
th
to Further Respondents
TO
THE NOTICE OF
MOTION
Heard
:
09 February 2017
Delivered
:
23 February 2017
Summary:
On the return day, the applicant sought to have
the rule discharged. The third respondent (Democratic Municipal and
Allied Workers
Union of South Africa) brought a counter-application,
which it also sought to have withdrawn. The live issue was the issue
of costs
following the discharge and the withdrawal of the
counter-application. Held: (1) The appropriate order is one of each
party to
pay its own costs.
JUDGMENT
MOSHOANA
AJ
Introduction
[1]
In
opposing a rule nisi which was issued on 30 December 2016, the third
respondent – Democratic Municipal and Allied Workers
Union of
South Africa sought relief to the effect that the suspension of its
members be set aside.
[1]
In the opposing affidavit, the deponent, Ms Kedibone Makhura
prayed that the suspension of the fourth to the sixth respondent
be
set aside. The relief was opposed. In opposing the relief, the
applicant indicated its intention not to seek confirmation of
the
rule.
[2]
Background
facts
[2]
The main facts to this application are no longer relevant for
the purposes of this judgment. Suffice to mention that the applicant
alleged that the members of the third respondent embarked on an
unprotected strike on 29 November 2016. The third
respondent’s
version is that the members did not engage in a
strike action. They attended a meeting summoned by the applicant. On
30 November
2016, the applicant approached this Court on an urgent
basis. Van Niekerk J issued a rule nisi which was returnable on 09
February
2017. On the return day, the matter came before me mainly
for the issue of costs. The initial stance taken by Mr Ndou for
the respondents was that there is no counter-application. Later, he
relented and effectively advised that the application was not
persisted with.
Evaluation
[3]
When it comes to costs,
this Court is guided by section 162
[3]
of the Labour Relations Act.
[4]
What then guides me as the Labour Court are the requirements of the
law and fairness. In law a successful party ought to be compensated
for its litigation costs. Put differently costs follow the results.
In relation to the fairness requirement, aspects like an on-going
relationship between the parties come into the picture.
[5]
Mr Sibanda for the applicant submitted that the third respondent
was not supposed to be before Court as there was no relief
sought
against it. I cannot agree. The applicant was cited as a party
together with its members who were allegedly on strike. It
was well
within the third respondent’s rights to oppose the relief
sought by the applicant, in the circumstances where it
knew that
there was no strike as advised by its members. Also, although badly
advised in my view, it was entitled to initiate what
turned out to be
an ill-conceived counter-application in the interest of its members.
It cannot be said that the opposition is
unreasonable. It must be
borne in mind that a right to strike is constitutionally
guaranteed.
[6]
Any party seeking to protect such a right in a court of law is well
within his or her right.
[7]
To my mind the third respondent was entitled to oppose the
application.
[8]
I am aware that the third respondent is not involved in this matter
on a representative capacity. It was cited as a party who may
choose
to abide and/or oppose.
[4]
Turning to the
counter-application. As pointed out above, there is a
counter-application. The third respondent in a notice and an
affidavit sought a relief in this Court. Such a request was opposed.
In terms of the rules,
[9]
a party seeking to withdraw an application should tender costs of the
application. Therefore, the other party is entitled to its
costs. If
not tendered the court has discretion to order it. I now turn to the
discharge. A discharge of a rule is tantamount to
a dismissal of the
application. If on the return day, the rule is not confirmed, it is
as good as being dismissed. Therefore, a
successful party is entitled
to its costs. The third respondent was successful in relation to the
discharge of the rule. The fact
that the applicant chose to advise of
its intention not to seek confirmation on the return day, only in the
replying affidavit
as it were is of no consequence. The applicant
finds itself in the same position as a losing party. Like any other
losing party,
it ought to be mulcted with costs.
[5]
Since both parties were successful fairness dictates that each
party must bear its own costs. Much as I was tempted by Mr Sibanda’s
submission, to order punitive costs, I do not believe that in
fairness the opposition by the third respondent is unreasonable.
To
the extent that it was submitted that the deponent made certain
allegations that are distasteful, there was no application to
strike
out before me. I must state though that I frown upon some submissions
made by Mr Ndou, which suggested that his learned
colleague was
dishonorable. Mr Ndou needs to relook at his advocacy approach
in that regard.
Order
[6] In
the results, I make the following order:
1.
Each party must pay its own costs.
_______________________
GN
Moshoana
Acting
Judge of the Labour Court of South Africa
Appearances
For the Applicant:
Mr Sibanda
Instructed
by:
Cliffe Dekker Hofmeyer Inc, Sandton
For the
Respondents:
Mr Ndou
Instructed
by:
Morwasehla Attorneys, Braamfontein.
[1]
In the notice to oppose, the third respondent stated the following:
“
Kindly
take further notice that the third respondent will seek an order in
the following terms:
2.1.
…
2.2.
that the suspension on (sic) the fourth to the sixth respondent be
set aside.”
[2]
Paragraph 6 of the answering affidavit, the deponent stated that the
applicant does not seek confirmation of the rule nisi. As
such, the
applicant will primarily pray for an order discharging the rule
nisi.
[3]
Section 162(1) provides:
“
The Labour Court may make an
order for the payment of costs, according to the requirements of the
law and fairness.”
[4]
66 of 1995 as amended.
[5]
See
National Union of
Mineworkers v East Rand Gold & Uranium Co Ltd
[1991] ZASCA 168
;
1992
(1) SA 700
(A); (1991) 12 ILJ 1221 (A) at 1242-3;
Xaba
v Portnet Ltd
(2000) 21
ILJ 1739 (LAC) at 1751-2;
Callguard
Security Services (Pty) Ltd v Transport & General Workers Union
& Others
(1997) 18 ILJ
380 (LC) at 389-391.
Communication
Workers Union & Others v SA Post Office Ltd
(2005) 26 ILJ 1679 (LC) at paras 59-60.
[6]
See section 17 of the Constitution of the Republic of South Africa
which provides:
“
Everyone has the right,
peacefully and unarmed, to assemble, to demonstrate, to picket and
to present petitions.”
[7]
Section 34 of the Constitution of the Republic of South Africa is
entitled “
Access to
courts
” and states
that—
“
Everyone has the right to have
any dispute that can be resolved by the application of law decided
in a fair public hearing before
a court or, where appropriate,
another independent and impartial tribunal or forum.”
[8]
Section 200(1) provides that—
“
A registered
trade union
. . . may act in any one or more of the following capacities in any
dispute to which any of its members is a party—
(a)
in its own interest;
(b)
on behalf of any of its members;
(c)
in the interest of any of its members.”
[9]
See rule 13 of the Rules of this Court.