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[2017] ZALCJHB 213
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Johannesburg City Parks and Zoo v SAMWU and Others (J446/2016) [2017] ZALCJHB 213 (2 June 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Not
of interest to other judges
Case
no: J 446/2016
In
the matter between:
JOHANNESBURG
CITY PARKS AND
ZOO
Applicant
and
SAMWU
THE
PEOPLE LISTED IN ANNEXURE
‘’
X’’
TO THE NOTICE OF MOTION
First
Respondent
Second
Respondent
Heard:
11 March 2016
Delivered:
11 March 2016
Edited:
2 June 2017
Summary:
Matter settled – costs argued – each party to pay its own
costs
EX
TEMPORE
JUDGMENT
COETZEE
AJ
Introduction
[1]
This is the
ex-tempore
judgment in matter J446/2016, between
the Johannesburg City Parks and Zoo, the applicant, and the South
African Municipal Workers
Union (Samwu), the first respondent, and
the second and further respondents.
[2]
In this matter today, by agreement, a draft order was made an order
of court.
[3]
The order reads as follows:
“
By agreement
between the parties, the court makes the following order:
1. The rule
nisi of 4 March 2016 is discharged.
2. The
respondents undertake not to participate in or promote any strike in
relation to the issues identified in annexures
A and B to the
Founding Affidavit pending the finalisation of the referral process
in the Bargaining Council.
3. The
question of costs will be determined by the court.”
[4]
Both parties addressed the Court.
[5]
This is the judgment on costs in terms of the agreed court order.
[6]
Section 162 of the Labour
Relations Act
[1]
(the LRA) prescribes that a cost order may be made according to the
law and fairness. The generally accepted legal position
in the
civil courts is that costs will follow the result.
[7]
“Fairness” requires a consideration of a number of
factors. Section 162 further specifies that the conduct
of
the parties in proceedings with or defending the matter in court
should form part of the considerations of a costs order. The
section
reads as follows:
“
162. Costs.—
(1) The Labour
Court may make an order for the payment of costs, according to the
requirements of the law and fairness.
(2) When deciding
whether or not to order the payment of costs, the Labour Court may
take into account—
(a) whether the
matter referred to the Court ought to have been referred to
arbitration in terms of this Act and, if so, the
extra costs incurred
in referring the matter to the Court; and
(b) the conduct of
the parties—
(i) in
proceeding with or defending the matter before the Court; and
(ii) during
the proceedings before the Court.
(3) The Labour
Court may order costs against a party to the dispute or against any
person who represented that party in those
proceedings before the
Court.”
Analysis
[8]
I attempted to summarise the conduct of the applicant and the conduct
of the respondents pursuant to the submissions made and
as I gained
it from the papers in order to determine an appropriate order for
costs in this matter.
[9]
For the sake of convenience, I have divided the issues into three
rubrics. The first is the applicant’s conduct
complained
of, secondly, the respondents’ conduct and lastly other
considerations.
[10]
I first deal with the conduct of the applicant.
The
conduct of the applicant
[11]
One of the main complaints against the conduct of the applicant is
that it did not comply with the 48 hours’ notice prescribed
in
terms of section 68 of the LRA when calling the respondents to court.
[12]
The applicant submits that it sent a letter on 3 March 2016
forewarning the respondents. The respondents did not respond thereto.
[13]
The respondents say that they did not receive it. There is a dispute
of fact on this issue.
[14]
It is common cause that the applicant issued the formal notice about
three hours prior to the application being heard.
The
respondents raised this as a second relevant consideration.
[15]
The applicant, in respect of the short notice, explains its conduct
in terms of the reasons for urgency set out in its founding
affidavit. Those considerations were considerations such as that live
animals had to be fed, water having been turned off and,
most
importantly, also that the public was negatively affected by what is
common cause was to be an unprotected strike.
[16]
Further, in justification of the three hours’ formal notice,
the applicant says in this paragraph that the short notice
was
precipitated by the respondents by conducting or engaging in an
unprotected strike without any notice whatsoever.
[17]
The respondents complain (in this regard) that the purpose of the 48
hours’ notice, is for the parties to have sufficient
time to
reflect, especially the respondents in this case, on whether the
conduct should proceed or what their response should be.
[18]
On the facts, it appears to me that it is improbable that any
reflection would have resulted in a solution. The strike,
notwithstanding the interim order of 4 March 2016,
continued until 6 March 2016 and it is unlikely, looking at it
coldly,
that any reflection would have made any difference in this
regard. It is therefore likely that the respondents did not suffer
any
prejudice as a result of the short notice.
[19]
The further conduct of the applicant that I have regard to is that
the allegations in the founding affidavit are thin in respect
of who
participated in the strike and the premises where the strike
occurred.
[20]
It appears to me that some of the second and further respondents were
joined merely because they were members of the first
respondent
without any specific information that they were participating in a
strike. In addition, the applicant filed a
replying affidavit
that contained information that should have been in its founding
affidavit.
[21]
The procedure that the applicant adopted with its replying affidavit
is an incorrect procedure, although I do not believe that
the whole
of the replying affidavit should be disregarded. One issue, for
instance, is the participation of IMATU. The respondents
raised the
participation of IMATU for the first time in the answering affidavit.
The applicant then dealt with this matter in the
replying affidavit.
It is an overstatement that the Court should disregard the whole of
the replying affidavit and then take that
into account in making a
cost order. The contents of the replying affidavit is a factor that
the Court takes into account.
The
conduct of the respondents
[22]
As far as the respondent’s conduct is concerned, I rely mainly
on the founding affidavit and the answering affidavit
without
particular reference to the replying affidavit.
[23]
The respondents say there was no strike action and if there were
something that looked like strike action, it was contained
to the
Johannesburg Zoo and Springfield and it did not affect the other
depots.
[24]
The strike was unprotected. The strike commenced without any
compliance with any of the prescripts of the LRA. The strike
commenced without any strike notice of whatever form.
[25]
The strike placed at risk the wellbeing and lives of the animals. The
strike affected the public such as, for instance, the
school children
arriving in buses on a pre-planned and arranged school outing for
which they had paid. The applicant turned them
away due to the
conduct of the striking employees participating in the unprotected
strike.
[26]
The conduct of the respondents in denying any strike action until
11 March 2016 (that is today) before giving an
undertaking
counts against them. The first respondent has not yet formally called
the strike off.
[27]
Today, on the return date, the first respondent was still opposing
the matter on the basis that there was no strike. It is
likely that
the Court might have confirmed the interim order, albeit in a much
more restricted format, in the absence of an undertaking.
Other
considerations
[28]
There are also other considerations for purposes of a cost order.
[29]
Ordinarily a party, advancing appropriate facts, is entitled on an
urgent basis and on shorter notice, to approach the Court,
especially
if members of the public are affected or life and limb are endangered
by the unlawful and unprotected conduct.
[30]
Secondly, the Court in this case, determined a shortened and urgent
return date so that the matter was ripe for a hearing within
a week.
This obviated a postponement of the matter or an arrangement for
papers to be filed.
[31]
Thirdly, the respondent was not deprived of its right to strike. The
respondents embarked upon an unprotected strike.
[32]
Fourthly, the purposed of the interim order was to stop the unlawful
conduct. The first respondent failed to stop the unlawful
strike and
on the papers today is still denying any strike action.
[33]
Lastly, the parties have agreed to the undertaking that I have read
into the record.
[34]
Both parties have achieved substantial success in that the order was
discharged but also that the unlawful action was terminated.
[35]
Having regard to all of these factors, in the exercise of my
discretion. I conclude that I should not make any order as to
costs
in favour of any of the parties. Each party should pay its own costs.
Order
[36]
I make the following order:
1. There is no order as to
costs.
____________________
F.
Coetzee
Acting
Judge of the Labour Court of South Africa
Appearances
For
the applicant:
Attorney C Beckenstrater
of Moodie & Robertson
For
the Respondent:
Adv S Shangisa
Instructed
by:
Madlela Gwebu Mashamba Attorneys
[1]
Act 66 of 1995 (as amended).