IN THE LABOUR COURT OF SOUTH AFRICA
(HELD AT CAPE TOWN)
CASE NO: C374/98
DATE: 2391999
In the matter between:
HAZELEY PIGGERIES WORKERS Applicants
and
HAZELEY PIGGERIES Respondent
J U D G M E N T
____________________________________________________________
BRASSEY, AJ :
1. The applicants in this matter were dismissed for participating
in a strike commencing on 22 June 1998. The dismissal occurred two
days into the strike, that is on 24 June, following on the refusal by
the applicants to heed several ultimatums to return to work. The
applicants now seek relief by way of reinstatement alternatively,
compensation.
2. The issues that I have to decide are firstly, whether the strike
was protected. If it was protected then the dismissal would, by
operation of the law, have been incompetent and thus unfair. The
second issue I have to decide, assuming that the strike was
unprotected, is whether the dismissals were nevertheless unfair.
The third issue I have to decide, which depends upon a positive
finding on the second, is whether the applicants should be entitled
to the remedy of reinstatement and, if not, what by way of
compensation would be appropriate.
3. The facts in this matter were rehearsed before me at
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considerable length. Having regard to the true nature of the issues
with which I am concerned, can be briefly summarised.
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4. The respondent purchased the business, which is a piggery,
several years before the strike broke out. As part of the
transaction the workers employed by the seller were retrenched, paid
their severance pay, and then rehired by the respondent. In the
ensuing years discontent simmered over the conditions of employment
at the respondent's farm. The focus of the discontent varied from
time to time but it is fair to say, I think, that wages and the
conditions of the hostel accommodation were two constant factors in
the discontent.
5. Later in 1996 the workers, through their representatives,
approached a certain Zamile August who ran an advice service in the
area. In consequence of that, Zamile August sought a measure of
recognition as the workers' representative, from the respondent. At
the time the official channel of communication was a workers'
committee and the respondent, anxious about the turn of events,
placed the matter in the hands of the attorneys who act for its
holding company. An acrimonious set of correspondence ensued between
the attorneys and the advice service, the content of which it is
unnecessary here to relay. Suffice it to say that the attorneys, if
one examines the correspondence, took what can only be described as a
legalistic approach to the overtures of the advice service
questioning, inter alia , its status to act as a collective bargaining
representative of workers.
6. The exchange of correspondence culminated in a reference of a
dispute to the Commission for Conciliation Mediation and Arbitration.
dispute to the Commission for Conciliation Mediation and Arbitration.
As the terms of that reference are of consequence to the status of
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the strike it is necessary for me, albeit briefly, to summarise them
here.
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The referring party is described as Eric Salukzana and Others and
their address is given as c/o WECWA, which is the Western Cape
Workers Association, that is Mr Zamile August's advice body of PO Box
301, Athlone, 7760. The alternative contact details identify Mr
Zamile August as the person with whom to liaise and describe him as a
paralegal/organiser.
7. After a description of the respondent, the nature of the dispute
is set out as being as follows:
"Refusal of respondent to bargain in good faith with applicants."
In paragraph 7 the results of the conciliation are set out in the
form as follows:
"7. That the respondent undertakes to bargain and/or negotiate with
workers over disputes that exist between them."
The document is then signed on 25 March 1997 by a number of people
who would appear to comprise most, if not all, of the respondent's
workforce of some 36 people.
8. At the CCMA hearing there was a discussion, not about the duty
to negotiate as it happens, but about the problems that the workers
were confronting within the workplace. Undertakings were given by
the respondent, the exact nature of which was materially in dispute
before me, on the improvement of the facilities on the farm and the
question of negotiation over wages. Regrettably, this was not an
end to the matter however, because in the period from the CCMA
hearing in midApril 1997 through to the end of that year, there was
a refusal by the respondent to deal with Mr August until such time as
3
his union became registered.
9. Mr Nieuwoudt, the IR consultant retained by the company in place
of its attorneys, explained why the company
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took the attitude that it did. Some of what he had to say might
have smacked of formalism, at least in the perception of some people,
but beneath his evidence was a real anxiety that whoever should
represent the workers would be in a position to bind them into any
agreement that might be concluded.
10. In October wage increases were awarded to the workers. They
were significantly higher than might otherwise have been awarded
because the workers had sought, and were granted, the facility of
membership of a provident fund that would be mutually contributory.
What would have been an increase of some 8.75% became an increase of
some 13.75%. The workers were dissatisfied with the level of the
increase and remained dissatisfied with certain of the conditions on
the farm. Meetings ensued in order to deal with complaints. Those
meetings were attended by Mr Nieuwoudt who kept minutes of them and
it is plain from the minutes, at least as I read them, and also from
the evidence of Mr Nieuwoudt, that a genuine attempt was made to come
to grips with the workers' complaints, consistent with the financial
constraints applicable to the company.
11. In consequence of the deliberations the Pension Fund Scheme was
rescinded but, it seems, the workers were allowed to keep the 5%
component of the wage increase attributable to it. Despite these
deliberations the workers remained dissatisfied and the matter was
referred back to the CCMA in December. It was competent to make
that reference because at the earlier hearing the CCMA Commissioner
4
had, as he put it, left his file open so that the parties could
deliberate and seek to resolve their differences informally.
12. At the CCMA hearing the status of the union was once
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again raised and for the first time it was able to produce a
Certificate of Registration indicating that it had acquired that
status in October of that year. In consequence of that, the
respondent gave a commitment to deal with the trade union which, it
was by now abundantly clear, was the representative of an
overwhelming majority, if not all, of the respondent's workforce.
At the hearing the question of wages was raised and the company took
the attitude that it had previously taken, which was that wages had
to be dealt with on the anniversary of employment, namely in October.
That stance, which was by no means unreasonable, was seemingly
accepted by Mr August.
13. In the ensuing six months the workers remained dissatisfied
however. Complaints surfaced in the discussions between the
company's management and the workers' committee and there was
considerable uncertainty as to whether they should properly be
resolved through Mr August or direct with the committee. During the
period, as before, there were thinlyveiled threats of industrial
action unless the complaints were properly attended to. Management,
insofar as one can gather, remained patient in the face of those
threats but nonetheless stood firmly on its position insofar as wages
is concerned.
14. The frustrations, that are obvious from the notes and meetings
of the time, came to a head in a letter dated 2 June 1998 written by
the workers to management. I shall recite the letter, which is
5
important, without attempting to render accurately the spelling. It
states:
"We ask strike on 22 June 1998. Sit down under this reason:
1. Money.
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(a) First group we want to pay R500 start on fortnight.
(b) Second group we want to pay R550 on fortnight.
(c) Third group we want to pay R600 on fortnight.
2. Money of union must not get in right to the office.
3. Hostel must not right after two years.
4. Money of UIF must not right.
5. Apartheid must not finished here.
14. The effect of this note which was briefly traversed in evidence
is relatively clear. The workers are dissatisfied with the low
level of their wages and seek an increase in the minimum wage,
depending on the length of service of the three groups of workers
referred to. The deduction of union dues is to take automatically
and must not be collected on the farm and problems regarding UIF and
attitudes of racism, which are termed "apartheid", must be dealt
with. It is plain from that demand that the workers are concerned
to obtain a substantive improvement in their conditions of employment
and if there were any doubt about that matter, it would be put beyond
uncertainty by the letter from the union of 8 June 1998 which reads
as follows. Again I seek to render its meaning rather than give a
literal rendering of it. It is addressed to the manager of Hazeley
Pig Farms and the text reads as follows:
"We are writing to you on behalf and at the request of our members in
your employment and we hereby demand that they be remunerated R350
6
per week and that the shop stewards or their
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substitutes be given 18 days per annum leave for trade union
activities, on full pay."
A request for a reply within seven days is then made.
15. On the same day, somewhat remarkably, the union writes a further
letter to the respondent in which it states that:
"Members of WECWA hereby give notice to embark on industrial action
in pursuance of demands for wages increase."
The response of management was somewhat predictable, it took the view
that any such strike would be illegal, but by its letter of 10 June
1998 it made it clear firstly, that it was its intention that the
parties should meet to clarify issues like conditions of employment,
including the rights of the union. Secondly, that it had previously
extended the invitations which had not been taken up, for reasons
which were unclear.
16. To this letter Mr August replied on 12 June 1998, in language
that is nothing if not intemperate. He stated:
"Your letter dated 10 June 1998 refers. We do not need clarities,
we have tabled a demand in front of you and we expect a response; do
not waste our time as you could transmit any information by fax to
us, as you have with the letter we are responding to; and objectively
it is management that has always endeavoured to thwart good labour
relations between itself and the workers.
We have always said that you should produce to us a draft code for
consideration and negotiations and up to now you have not done so but
have instead forced upon us codes we do not
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consent to and even your despicable conduct at recent hearings
speaks for itself. Therefore again it is not us who are retarding
any progress at the workplace, the blame should be put on you."
17. The inflammatory tone of this letter is in keeping with an
earlier letter in which Mr August accused members and inspectors of
the Department of Labour of being corrupt ,a statement that he was
subsequently constrained to retract.
18. On 15 June 1998 the workers wrote a further note to the
respondent stating:
"We are here to demand the following complaints before 22 June 1998.
If no reply we are not going to work until we get a reply:
1. Money.
2. Hostel.
3. Union.
4. UIF.
5. Apartheid.
6. Elliot Setlahinga must come to work soon."
The first five items I take to be a reference back to the letter of 2
June, to which I have referred. The sixth item is a reference to a
dismissed employee whom the workers were seeking to have reinstated.
As at this stage therefore it is clear that the workers remain
determined to have their substantive grievances resolved in their
favour.
19. On 18 June 1998 the respondent wrote to Mr August in the
following terms:
"Further to our fax of 10 June 1998 and your response dated 12 June
1998, the following:
1. It seems to management that WECWA is not prepared to settle any
8
differences which the
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parties may have through dialogue and discussion.
2. Your insistence to negotiate wages and other conditions of employment
for implementation with immediate effect is unacceptable as
management made it clear in the meeting that we had on 3 March 1998
that negotiations of wages would take place as from October 1998 for
implementation as from 1 November 1998.
3. Management once again would like the parties to come together to
discuss proposals in order avert the proposed unprotected strike
actions called for by your members.
4. In the event of the parties not being able to reach agreement
over the perceived dispute, management agrees that the dispute be
referred to the CCMA to prevent any unfair labour practice being
committed by any of the parties.
5. Management would like to bring to your attention that the
proposed industrial action called for by your members;
5.1 will be an unprotected strike
5.2 is illegal
5.3 is not conducive to good labour relations, and
5.4 is uncalled for in the light of management's continued
willingness to settle the perceived differences around the
negotiating table.
6. You are further notified that in the event of
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your members going on an unprotected strike, management intends;
6.1 employing casual labour
9
6.2 to take the necessary action, which may include summary
dismissal, against individual employees who take part in the strike
and may be guilty of intimidation and any other form of misconduct
during the duration of the strike.
7. You are also notified that the rule of no work no pay will be
applied throughout the duration of the strike."
It us unclear to me whether Mr August relayed the content of that
letter to the members of his union, but it is clear from the evidence
which is corroborated by an endorsement on a copy of the letter, that
the contents of the letter were read over to workers on the farm.
From that moment onwards there could have been no doubt in the
workers minds what attitude the respondent took to their impending
industrial action.
20. The workers must have appreciated firstly, that management was
open for discussions on matters which included the question of a
proper recognition of the trade union. Secondly, that it considered
the appropriate time for the negotiation of wages to be the
anniversary of the hiring of the workers, that is October, but even
in respect of that it was willing to discuss, as it put it,
"proposals in order to avert the proposed unprotected strike action
called for by the members". Thirdly, that the strike would not have
the statutory protections offered by the Labour
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Relations Act. Workers were pertinently warned that if they
intimidated casual labour, management would take the requisite
action.
21. On 22 June a strike did indeed break out and it was met early on
10
that morning by an ultimatum. The ultimatum states as follows:
"With reference to our correspondence of 18 June 1998 we would like
to state the following:
(a) Management regards your actions as being an unprotected strike
and therefore illegal.
(b) Management declares itself willing to discuss matters with the
union and shop stewards in order that normality may be restored.
(c) All workers are to resume their normal duties by 9:30 on 22 June
1998.
(d) Failure to resume work by 9:30 on 22 June 1998 will lead to
disciplinary action being taken in accordance with the Labour
Relations Act No. 66 of 1995.
(e) If found guilty of misconduct, in accordance with the law,
workers face instant dismissal."
The evidence before me was that this was read out and translated to
all present among the strikers and that the shop stewards that is
David Safuba and two others stated that they understood the
contents thereof. Despite the ultimatum the strike continued and it
was in consequence necessary for management to give a further
ultimatum, which it did on the following day. It is unnecessary to
read the ultimatum save for the following paragraph:
"Your demand to negotiate wages cannot be acceded
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to for the reasons set out in our various correspondences to
your union and unless you resume work by no later than 14:00 (2
o'clock) this afternoon 23 June 1998, your employment with the
company will automatically be terminated. The reason being that the
pigs are dying in the pigsheds and you are intimidating the casuals
11
not to work."
22. As it happens, the threat implicit in that ultimatum was not
carried out until the following day. It is clear from the evidence
that had any workers come forward overnight and tendered their
services they would not have been dismissed. On the following day
the workers were formally advised of their dismissal and arrangements
were made for the payment of their termination pay.
23. The circumstances surrounding what would otherwise appear to be
a precipitate set of ultimatums were rehearsed in evidence and I
shall return to them in a moment. They bear upon the question of
whether, if the strike is unprocedural, it was permissible to dismiss
the workers.
24. At this stage it is necessary, however, for me to consider
whether the strike was indeed procedural or not, since it is clear
from the evidence that it was for participation in the strike that
the workers were dismissed. In order to determine whether the strike
is procedural or not, it is necessary to consider what the nature of
the demands were and whether they fall within the ambit of the
reference of the dispute some time earlier to the CCMA.
25. On the first question there can be little doubt but that the
dispute was over substantive questions. The letters from the
workers themselves make that clear and so
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does the letter from their trade union. So too does the evidence of
both the witnesses who testified on the applicants' side. The
reference of the dispute to the CCMA, on the other hand, was
concerned with the matter of procedure. It was concerned with the
socalled refusal by the respondent to negotiate with the workers.
12
That is a question of process, quite distinct from the substantive
demands that were being pursued by means of a strike. The attempt
to legitimate the strike by reference to that CCMA referral was, in
my view, nothing but opportunistic. The effort was as unsuccessful,
as most opportunistic ventures are when properly investigated. I
should say, however, that even if I were to find that the issue being
prosecuted by the strike was a matter of procedure, it would still
not fall within the ambit of the reference.
26. The basis of the complaint in the reference was a failure to
negotiate with the workers. The case made out by Mr Fisher, who
appeared on behalf of the applicants, was concerned with the failure
to negotiate with the trade union and for the purpose he dwelt at
some length on the standpoint adopted by the respondent relating to
the status of the union prior to the strike. That problem, I should
say bytheby, had been resolved at the CCMA meeting of December, but
even if the issue remained alive as between the parties at the time
when the strike broke out, and even if I were to find that the strike
was concerned with matters of process, I should still not find that
the demands underlying the strike were covered by the CCMA referral.
27. Negotiating with the workers, which is what the company had been
doing and was content to continue to do, is a matter entirely
distinct from negotiating with the trade
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union as their collective bargaining representative. The
distinction is not a technical one, nor does the making of it fall
foul of the injunction that the Courts repeatedly issue, not to treat
the contents of the CCMA referral too literally. At the time when
Mr August completed the CCMA referral he must have been well aware
13
that the union itself could not apply on behalf of the workers, being
unregistered. Conscious of the deficiencies in the union status, Mr
August must have appreciated that it would be competent for him to
frame the dispute as one concerned with the refusal to negotiate with
the union, albeit unregistered. The fact that he declined to frame
the dispute in those terms is not, in my view, suggestive of some
inadvertence on his part.
28. I conclude, therefore, that the strike was unprocedural and
therefore not such a strike as automatically serves to confer
protection against dismissal under the Labour Relations Act.
29. I turn now to the question of whether, notwithstanding the
unprocedural and thus unprotected quality of the strike, the
dismissals were unfair. I have already described the ultimatum
given by the company as somewhat precipitate. The precipitate
giving of the ultimatums must be seen within its context however.
The context is that unless the pigs are tended to and properly fed,
they die, and the deaths are agonised.
30. A video film was placed in evidence before me and I was
requested to look at it. It had shocking scenes of pigs fighting
with each other and of piglets that were suffering and had died.
Compassion alone would require of management that it took steps and
urgent steps at that to make sure
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that the pigs in the piggery should not be neglected. There are, of
course, in addition financial considerations implicated in such
neglect. It was, therefore, necessary for management to obtain
alternative labour in order to feed the pigs the 40 tonnes of food
14
that they require for their subsistence. Attempts by management to
employ casual labour were, however, frustrated by the striking
workers. The evidence of Mr Jack, who testified on behalf of the
management, and of Mr Nieuwoudt, who did likewise, made it clear that
these acts of frustration amounted to intimidation. The video film
graphically confirmed their evidence. What was clear is that the
strikers, or at any rate a significant majority of them, formed
themselves into a group and toyitoyed through the premises. Some
of the workers brandished sticks and one had an iron implement. A
further worker on a later occasion was seen carrying a tyre, of whose
symbolism nobody who has lived in South Africa, can be under the
slightest doubt.
31. The workers formed in the group that I have described, made it
their practice to surround the individual replacement workers (casual
workers) and by means of threats and imprecations to force the
individual to stop working. There were scenes on the video film in
which workers were seen waving the casual workers away. Mr Jack
testified that he himself was the victim of threats. Those threats
were violent in nature.
32. On the video film I saw interviews conducted with the casual
workers in which they said that they were too frightened to work in
consequence of the threats against their lives that had been uttered
by the strikers. These reports were confirmed by the evidence of
both Mr Jack and
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Mr Nieuwoudt. Whether these threats were actually uttered is a
matter of hearsay. The reports are equally hearsay, save to the
extent that they affect the mind of Mr Jack, as decisionmaker within
15
the company. What was obvious to me was that the workers must have
appreciated that the casuals were in communication with Mr Jack and
with Mr Nieuwoudt and they could have been under no doubt of the
tenor of those communications, given that the casuals were refusing
to work.
In the circumstances they must have appreciated that if Mr Jack was
not to fear further acts of intimidation it would be incumbent on
them to reassure him. Yet no effort whatsoever was made by any of
the workers to do that. Quite the contrary, the workers as is
evident both from the evidence and the video treated approaches by
the respondent with disdain. The attitude that they took was of
passive, surly, recalcitrance. The continued to take that attitude
notwithstanding the grant by this Court of an interdict to restrain
them from further acts of intimidation. For their contempt of
management they can expect little sympathy from this Court, but their
contempt of an order of this Court is one that would deprive them of
any sympathy whatever.
33. In the circumstances it seems to me that there was no
alternative for management but to act as precipitantly as it did.
In argument Ms Stelzner, who appeared on behalf of the respondent,
pointed out that it was not for me to consider what better options
might have been selected by management, but to ask myself on a
conspectus of the events as a whole whether management had acted
reasonably or not. The anxiety underlying that submission, which is
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understandable, was nonetheless misplaced. For my part, I find it
16
difficult to know what more management could have done in the
circumstances in order to avert the suffering of the pigs, and to
prevent financial loss. It seems to me that management was entirely
justified in approaching the matter as it did.
34. In coming to this conclusion, I consider of course the facts
that have been placed before me. In argument one of the
representatives of the workers drew my attention to the fact that
some of these workers have a considerable service with the respondent
and its predecessor. That is a factor that weighs strongly with me.
A second factor that weighs with me is that it appears that the
conditions on the farm, as perhaps is common with farms generally
though on that I can make no pronouncement, are, to say the least,
uncomfortable. The respondent itself made no effort to suggest that
the wages paid to the workers were luxurious.
35. Finally, one must take into account the fact that these workers
are illiterate or semiliterate and therefore can more easily be
expected to fall prey to breaches of the law, through ignorance.
But the workers could not have been under any illusion that it was
necessary to refer the disputed substance to the CCMA before they
embarked upon a strike. Indeed, one of the witnesses who testified
on the applicants' side, made it clear that the reason the dispute
was not referred was that he considered the previous CCMA meetings to
have been futile. Nor can there be any suggestion on the workers'
side that acts of intimidation are legitimate within a strike
context.
36. The significance of such acts should properly be understood.
The respondent did not dismiss the workers for
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17
violence and therefore acts of violence and intimidation do not
provide a basis for a consideration of whether the dismissal was fair
or not. They do, however, provide a context. If collective
bargaining is to be effective it is crucial that the operation of
collective market forces should run its course. On the employer's
side there is the collective comprised by capital. On the
employee's side there is the collective implicit in the withdrawal of
labour as a group. That tussle, as I say, operates within a market
but that market must be regulated and the regulation entails the
exercise of free will and the proper understanding of of market
forces.
37. It is impermissible to distort it by the use of violence on
either side. The experience in the United States in the 1930's
demonstrated palpably the consequences of violence by employers
within a strike context. The acts of violence on the employee's
side, which are all too prevalent within the context of South African
industrial action, are equally to be reprobated.
38. In the circumstances I can find nothing in the company's conduct
in the events leading up to the strike and in its handling of the
strike for which to criticise it. On the contrary, it appears to me
to have acted with patience, tolerance and considerable restraint in
the face of great provocation.
39. On that basis I cannot fault the company's act of dismissal and
therefore conclude that the dismissal was fair. The application
accordingly falls to be dismissed.
40. I turn now to the question of costs. Ms Stelzner is not
seeking the costs of the litigation against the individual
applicants, that is against the exworkers of the
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respondent. She does, however, seek the costs of the application
against the trade union to the extent that they were incurred while
the union was a party to these proceedings. The respondent is
entitled, in my view, to those costs.
41. She also seeks the costs against the attorneys de bonis propriis
in respect of two aspects. The first is the failure by the attorneys
to paginate and index the papers properly by the first day of these
proceedings. Apparently the respondent was ultimately forced to
perform that task itself. The failure to paginate and index the
papers considerably inconvenienced the Court, particularly as its
file at the critical juncture of preparation was no longer in its
possession. In the normal way the application would have been
struck from the roll, but in this case this was inappropriate given
that the workers remain in occupation of the premises, and thus the
respondent is suffering prejudice for so long as there is a delay.
42. The proper way of dealing with this matter, in my view, is to
make the attorneys who are responsible for the failure to perform
their duties, pay the costs of the first day of the hearing de bonis
propriis.
43. The second aspect is concerned with the want of preparation by
the attorneys for the applicants in relation to the pretrial
conferences. The consequence was that no satisfaction could be
obtained in a set of three such conferences. Eventually the
respondent was forced to approach this Court on lengthy affidavit
setting out the facts in order to have the matter enroled. Had
costs been prayed for as part of that application I would have
awarded those costs de bonis propriis against the applicants in
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favour of the respondent. No costs were, however, prayed for so it
appears to me wrong to take that approach. It would, however, be
proper to require the applicants' attorneys to pay de bonis propriis
the costs occasioned by the second and third pretrial conference.
Those costs include such costs as are attendant upon the arrangement
of such conferences, including the correspondence that passed between
the parties. The applicants' attorneys have not been heard in
relation to that aspect of my order. They are entitled to be heard
if they wish to be and therefore that aspect of my order I am going
to make provisional and it will become final only if the applicants'
attorneys give no notice within 10 days of the date of this judgment
of their desire to be heard in respect of the matter of costs.
44. Accordingly I make the following order:
1. The application is dismissed.
2. The trade union that was the applicant to these proceedings
until it withdrew shall pay the respondent's costs occasioned during
the litigation for so long as it was a party to the litigation.
3. The applicants' attorneys shall pay de bonis propriis the
following costs jointly and severally with the trade union;
(i) the costs of the first day;
(ii) the costs attendant upon and implicated in the second and third
pretrial conferences;
4. The order that is made against the applicants' attorneys is
provisional and becomes final only if within 10 days of the
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making of this order the attorneys fail to give formal notice of
their desire to be heard in respect of the order.
20
5. For purposes of clarity I should make it clear that I see no
reason why I should be exclusively the person who can hear any such
application for variation of the costs order by the attorneys. It
will be competent for one of my Brother or Sister Judges to hear that
matter if the Judge President so directs.
BRASSEY, AJ
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