J4457/01-mc
Sneller Verbatim/mc
IN THE LABOUR COURT OF SOUTH AFRICA
BRAAMFONTEIN CASE NO: J4457/01
2001-10-11
In the matter between
BIFAWU Applicant
and
AFRICAN BANK Respondent
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J U D G M E N T
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LANDMAN J : The Banking Insurance Finance and Assurance Workers Union has
brought an urgent application in which the following the relief is sought:
1. That the matter be heard on an urgent basis.
2. To stay the retrenchment notices issued by the respondent against applicant's
members on 30 September 2001, pending finalisation of an application to be
brought before this court by granting same.
3. That the respondent pay the costs of this application in the event of opposing
same.
4. Further and/or alternative relief.
This application was filed and served on 9 October 2001. Itcame before me
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at 16:00 on that day and was postponed until 14:00 today. At the postponement
Advocate Nel, who appeared on behalf of African Bank, the respondent, provided
an undertaking that no member of the applicant Union would be dismissed on 10
October.
The relief which the applicant seeks relates to a notice which was served on
18 September. It is the applicant's case that the members concerned were not
dismissed on 30 September as contemplated in the notice, but their dismissals
were held in abeyance until 5 October. On the other hand it is the respondent's
case that these members were dismissed on 30 September.
It is unnecessary to decide which is the correct date because the relief that
is being sought is to stay the retrenchment notices and therefore also stay the
dismissal of the applicant's members. This relief can only be granted if the
applicant members have not been dismissed at the time the order is made. If
they have been dismissed, the order is of no effect and cannot be granted.
In the circumstances, on the applicant's own papers, it is clear that the
applicant's members were dismissed on 5 October. The application was brought
too late and unfortunately the applicants are not entitled to any relief.
Mr Nel, who appears on behalf of African Bank has asked for costs in this
matter. This court has a discretion whether or not to grant costs according to the
requirements of law and fairness. Mr Nel properly conceded that there is an
ongoing relationship between the Union and African Bank. He nevertheless
submitted that he would be entitled to costs.
I am of the opinion that Mr Nel is correct, that he is entitled to costs, but I
have a discretion to temper those costs and I therefore award to the respondent
the costs of the appearance on 9 October and the costs of the appearance of
today and those costs alone.
J4457/01-mc
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A A Landman
Judge of the Labour Court of South Africa
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