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IN THE LABOUR COURT OF SOUTH AFRICA
(HELD AT BRAAMFONTEIN)
BRAAMFONTEIN CASE NO: J440/98
2002-01-29
In the matter between
UNITED PEOPLE'S UNION OF SOUTH AFRICA Applicant
and
EVANDER GOLD MINE Respondent
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J U D G M E N T
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REVELAS J:
1. The applicant, the United People's Union of South
Africa, referred a dispute to this court about the
dismissal of some 262 employees for operational
requirements in October 1997.
1. 1. 2. At the time of the hearing of the matter the
applicant indicated that it wanted to proceed only in
respect of 84 employees who were listed in the document
which was handed to the respondent's advocate and to
the court. It is common cause that at the time of the
retrenchment which affected some 5,278 employees across
three of the respondent's mines, the recognised trade
union at the respondent, now known as Harmony Gold
Mines, was the National Union of Mine Workers, with
whom the respondent consulted widely. Negotiations
with NUM resulted in the conclusion of an agreement on
the retrenchment of NUM's members. Clause 14 of the
agreement provides that:
"The parties agree that the terms and conditions of this
agreement shall constitute full and final settlement of the
retrenchment concluded at EGM."
EGM refers to Evander Goldmine.
3. The applicant's case is that its not party to the
agreement and that the employees in this matter, whom
the applicant had represented all along,(according to
it), were members of UPUSA and not the National Union
of Mine Workers as early as 1996 and consequently no
consultation took place as envisaged by Section 189 of
the Labour Relations Act 66 of 1995.
4. The respondent's case is inter alia that although it
consulted with the applicant in respect of the
employees affected by the retrenchments at its Kinross
mine, it did not consult with the applicant in respect
of employees at its Winkelhaak mine who where
retrenched between 8 and 14 October as the applicant
had not established any membership at that mine.
1. 5. On 1997 the applicant referred a dispute about the
alleged unfair dismissal of 213 employees apparently
from the Winkelhaak mine to the Commission for
Conciliation Mediation and Arbitration, (“the CCMA”).
In 1997 it referred a second dispute which appears to
be the same dispute but this time with a more extensive
list of employees. The two referrals were combined and
the dispute which was essentially the same one, was
conciliated by Commissioner Shongwe, the commissioner
appointed by the CCMA.
6. The respondent raised certain preliminary points before
the Commission. It contended that of the 262 employees
who appear on both lists referred to in the referrals,
217 of them were members of the National Union of Mine
Workers (“NUM”) and bound by the retrenchment agreement
referred to above and consequently could not proceed
with the referral before the CCMA. The respondent also
challenged the applicant's mandate to represent the
employees in the absence of stop order facilities and
the employees not being signatories to the referrals.
7. On 22 January 1997 Commissioner Shongwe found that the
217 NUM members as identified by the respondent in the
list, were excluded from conciliation and the
conciliation should only continue with the remaining 45
employees clearly identified as nonunion members in
'the list supplied by the company.' The respondent
also provided the court with that list which is found
in bundle A of the pleadings. Mr Luthuli who is the
spokesperson for the applicant contends that this list
is a fabrication.
1. 8. On Monday 28 January 2002, some four years after the
ruling of Commissioner Shongwe, the applicant served an
application for the review of the ruling referred to
above. While the ruling stands, the referral is
invalid in respect of 217 employees.
9. Mr Luthuli does not seek a postponement pending the
review application. Mr Luthuli asserted that the late
filing of the application for review must be condoned
because the ruling came to the attention of the union
only on 25 January 2002, in other words, last week.
10. There is also an attempt to bolster this explanation by
some confirmatory affidavits which in my view just
serves to underline the lengths to which the applicant
would go in this matter to deceive the court and
undermine the respondent.
11. Even though it is patently clear that the employees
were represented by UPUSA officials during the
proceedings before Commissioner Shongwe, and the
application for review is brought on the basis that
someone of the applicant was present there, Mr Luthuli
at one stage during argument suggested that the
proceedings never took place and argued that
Commissioner Shongwe should be called upon to give
evidence in this regard. Here is another example of
how Mr Luthuli, in an attempt to impress his clients
(all sitting in the back of the court), would make
scurrilous allegations by placing into question the
integrity of persons for no reason, and all to serve
the applicant's own purposes.
1. 12. At page 264 to 265 of bundle “B” of the record
there is a written notice of objection to Commissioner
Shongwe's ruling purportedly signed by Mr Luthuli, who
denies emphatically that he ever signed it. However,
this document was clearly served by UPUSA. It was sent
on 28 January 1998. There is also a response to the
notice, by the respondent dated 29 January 1998 at page
266 to 268 of Bundle B.
13. Subsequent correspondence confirms that the applicant,
and particularly Mr Luthuli, was well appraised of
Commisioner Shongwe's ruling and the respondent's
concern about applicants persistence in continuing with
the case in respect of 217 NUM members. Mr Luthuli
held forth that any such letters were fabrications. He
even went as far as to suggest that copies of letters
signed by him were written by a person not from the
applicant, on UPUSA letterheads stolen by someone.
Clearly the innuendo was that it was someone from the
respondent who had allegedly conducted themselves in
this way.
14. The explanation proffered by the applicant for the late
filing of the review applicant is rejected as false. It
is an attempt to mislead the court. The degree of
lateness is inordinate, it is four years. The
prospects of success are nil and the application is
mala fide . Consequently the application for review is
dismissed and Commissioner Shongwe's ruling is upheld.
1. 15. In the matter of Metal Workers of South Africa &
Others v Driveline Technologies (Pty) Ltd & Another
(2000) 21 ILJ 142 , the Labour Appeal Court per Zondo
AJP (as he then was), held that Section 191(5) of the
Labour Relations Act:
"imposes the referral of a dismissal dispute to conciliation as a
precondition before such a dispute can either be arbitrated or
be referred to the Labour Court for adjudication. " (at
paragraph 73).
16. In the present case the dismissal dispute has been
referred for conciliation and a certificate of outcome
was issued. The Labour Court has jurisdiction to
adjudicate the dispute as long as the certificate of
outcome has not been set aside on review. (See:
Fidelity Guards Holdings (Pty) Ltd v Epstein N.O. and
Others (2000) 21 ILJ 238 (LAC) at par. 11 per Zondo JP.
This has not been done and the application for review
has been dismissed.
17. Commissioner Shongwe ruled that the collective
agreement concluded with NUM was binding on its
members. Effectively it is a jurisdictional bar to the
217 NUM members proceeding against the respondent. In
the circumstances this matter can only proceed in
respect of the 45 nonmembers as identified by
Commissioner Shongwe in his ruling.
1. 18. The respondent has also drawn my attention to the
fact that UPUSA attempted to withdraw from this matter
and argued that on that basis, the matter should only
proceed in respect of four of the employees, who are
identified at this stage only by virtue of the
affidavits they attached to the statement of case filed
by the applicant. However, it is not certain at this
stage what the union's position is and therefore the
matter may proceed in respect of all 45,whoever they
may be. It has not been clearly demonstrated that any
of them should be precluded. It may very well be that
at a later stage, when they are identified, that they
are also not on the list of 84 employees.
19. On 7 December 2001 the applicant filed a notice of
amendment to amend the citation of the applicant on the
basis that:
"UPUSA was wrongly cited at the beginning of the case and it
is not a party to the application."
20. This is not a simple amendment under rule 22(4) of the
Labour Court rules but an attempt to withdraw as a
party. This is another example of the scant regard the
applicant has to the court procedure. It is quite plain
that the applicant saw a punitive cost order looming
because of the manner in which it pursued its client's
interests. This was becoming very evident in the
correspondence of the respondent. The applicant
attempted to escape those consequences with this notice
of amendment. Such amendment is not granted.
21. The applicant acted on behalf of the employees before
court all along. Repeated requests for their identity
and other requests were ignored on the basis that it,
the union, acted on their behalf. The union was a
party to both referrals and the certificate of outcome
was issued in its name. It also filed the statement of
claim and other documents.
22. The point in limine is therefore upheld against the
applicant.
1. 23. The matter may proceed in respect of the 45
employees referred to in Commissioner Shongwe's ruling.
The applicant's opposition to the point in limine was
based on lies and false accusations levelled against
innocent parties. Some of the individual employees
perjured themselves on affidavit to support a mala fide
case. I am however not certain to what extent they
were induced to do so by the applicant who apparently
has no scruples about the manner in which it litigates.
One thing however is certain and that is that this
matter warrants a punitive costs order against the
applicant.
24. I therefore make the following order:
1. The application for the review of the ruling dated
22/01/1998 is dismissed.
2. The point in limine is upheld
3. The referral application in respect of the 217 NUM
members identified by Commissioner Shongwe, is
dismissed.
4. The matter may proceed only in respect of the 45
employees identified by Commissioner Shongwe in his
ruling.
5. The Applicant (UPUSA) is to pay the Respondent’s costs
on a scale as between attorney and client.
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E. Revelas
On behalf of the applicant: Adv. A T Myburgh
Instructed by Deney Reitz Attorneys (Santon)
On behalf of the respondent: Mr. E. Luthuli of United Peoples’ Union of South
Africa