IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG
CASE NO:J 248/99
In the matter between:
A DHLAMINI AND 27 OTHERS Applicant
and
FILTAMATIX (PTY) LTD Respondent
JUDGMENT
BASSON, J:
[1] The respondent in this matter, FiltaMatix (Pty) Ltd, prays for a costs order against
the applicants in this matter, Andries Dhlamini and 27 others, on the basis that
their urgent application (withdrawn earlier today) was misconcieved and fatally
defective.
[2] It is clear that the application was brought on the understanding that the applicants
were being unlawfully lockedout by the respondent and that this formed the
essence of the relief claimed in terms of the notice of motion (although other
forms of relief that is clearly not applicable or not suitable was also prayed for).
Had there been an unlawful lockout, the applicants could have claimed relief in
terms of section 68 of the Labour Relations Act 66 of 1995 (“the Act”).
[3] It is clear that the applicants were initially under the impression that the actions of
the respondent constituted an unlawful lockout. However, the facts, as it appears
from the respondent’s answering affidavit, show that they were, in fact, dismissed
and were not being lockedout.
[4] When I consider whether to grant an order as to costs in terms of section 162 of
the Act, in the interests also of fairness, the question is, first, whether the
application was misconceived or frivolous based on the facts known to the
applicants at the time when the application was lodged and, second, if the
respondent incurred costs as a result thereof.
[5] It would appear from the papers before the court that the applicants were informed
by the respondent on 18 January 1999, when they reported for duty, that they had
been dismissed and that letters in this regard had been sent to them by registered
post. The allegation
is also made that copies of the letters were offered to them.
[6] However, I am not persuaded that the representative of the applicants, the
Consolidated General Industries Workers Union of South Africa, who acted on
their behalf and was also instrumental in compiling the application before the
court, in acting on their behalf did so with the full knowledge of these facts. I say
this because of a letter contained at page 22 of the documents before the Court.
[7] This is a letter dated 18 January 1999 and it appears to be common cause that it
was received by the respondent before the respondent compiled its answering
affidavit in this matter.
[8] This letter is dated the 18 January 1999, that is, the day on which the applicants
were allegedly informed that they were dismissed:
“Re lockout to our members
We are very much concerned about your actions against our members in your
establishment since last year immediately after joining the union. Your attitude
towards our union is totally unacceptable to us we have received a report that you
have lockedout our members out of your premises after they returned from
leave today and you told them that their jobs have been taken over by new
employees. What does this actually mean? Bear in mind that this is regarded
by myself as an unprotected lockout and we shall apply to the Labour Court for
an interdict. We expect for your answer today, the 18th January 1999 for an
urgent meeting to address this problem in an amicable way as possible”
(emphasis supplied).
[9] It is clear that the union was acting on behalf of its members, the applicants
before the Court, when writing this letter and when taking the decision whether to
bring this application for an interdict. The union sought information as to whether
the employees, that is, the applicants, were being lockedout.
[10] In my view, the respondent should have supplied the necessary information to the
union as it was now made aware of the fact that an interdict would be sought
against it on the basis of an alleged unprotected lockout. It was namely a very
simple task for the respondent to immediately answer this request for information
from the union by stating that the applicants were indeed dismissed and that
copies of their dismissal letters could be obtained from the respondent.
[11] This crucial information, however, was not supplied to the union as there is no
evidence before me that the respondent ever answered this letter by the union.
Instead, the respondent chose to wait until it compiled and served its answering
affidavit to supply the required information.
[12] It would appear therefore that the contention of Mr Ramogale on behalf of the
union today in Court is correct, to the effect that the first time that the union
received this information about the dismissals was when the answering affidavit
was delivered.
[13] Taking into account this fact I do not regard it as fair to make a costs order either
against the unionrepresentative of the applicants before the court or against the
applicants individually for the costs incurred by the respondent in opposing this
application and in filing an answering affidavit.
[14] In the event, I make no order as to costs.
________________________
BASSON,J
JUDGE OF THE LABOUR COURT OF SOUTH AFRICA
ON BEHALF OF THE APPLICANTS : MR B RAMOGALE
: Consolidated General Industries Workers
Union of South Africa
ON BEHALF OF THE RESPONDENT : ADV P KENNEDY
: NamFord Attorneys
: 22 JANUARY 1999
DATE OF JUDGMENT : EX TEMPORE (edited version)
This judgment is available on the internet at http://www.law.wits.ac.za.