Sneller Verbatim/PJ
IN TJ597.03HE LABOUR COURT OF SOUTH AFRICA
BRAAMFONTEIN CASE NO: J597/03
2003-05-26
In the matter between
IMATU Applicant
and
EKHURULENI METROPOLITAN MUNICIPALITY 1st Respondent
S A MUNICIPAL WORKERS UNION 2nd Respondent
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J U D G M E N T
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LANDMAN J : The applicant in this matter is the Independent
Municipal and Allied Trade Union which seeks an urgent relief
against the Ekhuruleni Metropolitan Municipality, the first
respondent. The South African Municipal Workers Union is the
second respondent. The applicant does not seek relief against
the second respondent.
The matter was adjourned from time to time. One set of
papers was filed. An undertaking was given that the matter
would be held in abeyance until an attempt had been made to
arbitrate the dispute. Such an attempt was made and a
settlement agreement was arrived at. This settlement
agreement essentially repeats the provisions of the collective
agreement which is the basis on which the applicant relied.
The first respondent proposed to the applicant that each
party should pay their own costs. This was not acceptable to
the applicant. The matter was set down today for argument on
the question of costs.
In order to decide the question of costs it is necessary to
take into account the merits of the matter. Although it does
not seem to be
incumbent upon me to go into them in very much detail. See
Jenkins v SA Boilermakers Iron Steelworkers and Shipbuilders
Society 1946 WLD at 15.
The relief which the applicant sought when the urgent
application was launched was for an interdict against the
municipality appointing persons in the Internal Audit
Department pending the resolution of a dispute had prepared
about the municipality's alleged non-compliance with a
collective agreement that had been concluded on 21 August
2002.
In my view, having regard to all the facts which are set
down in these papers, this is not a case where an order for
costs should be made. In the first place it does not seem that
this matter was handled with the dispatch which was required.
It only became urgent because the applicant did not respond
to an intimation made by the Chief Audit Executive, made
some time before November 2002, that all of the positions in
the internal audit department were for so-called “major
change” positions as opposed to “close match” positions.
This position was confirmed in a later letter dated 24
January 2003. The union and the two employees concerned
were informed that the positions had been advertised and that
the shortlist closed on that day. Nevertheless the matter was
not prosecuted until 14 March 2003.
In addition, there is a close working relationship between
the applicant and the municipality. This would be disturbed if a
cost order were to be made. Negotiations took place and the
parties have reached an agreement. The agreement merely
affirms what is set out in the collective agreement, although I
would think that it is implicit in this settlement agreement that
the municipality will not appoint the persons that it might have
had in mind. Instead it will follow the process set out in the
collective agreement which means that it will convene the
placement committee to consider whether a post should be
classified either as “major change” posts or “close match”
posts.
It is also important to take into account the union's
contribution to the dispute. The case for the union is that the
municipality was obstructive in regard to the working of the
placement committee.
During November 2002 the placement committee
referred the dispute in regard to the internal audit department
to the LLC . The LLC attempted to resolve the problem. If the
union wished to have the placement committed reconvened in
order to make a final decision it should have invited the
municipality to do so. The union did not do this. Instead it left
it until the last minute and it sought an interdict to prevent the
municipality from making appointments.
In the result an order for costs is not warranted. The
applicant was forewarned that this would be the municipality's
position. Therefore the applicant is ordered to pay the costs of
today including the costs of the first respondent’s
supplementary affidavit.
SIGNED AND DATED AT BRAAMFONTEIN ON 6 JUNE 2003
_________________
A A LANDMAN
JUDGE OF THE LABOUR COURT OF SOUTH AFRICA
FOR APPLICANT: SAVAGE JOOSTE & ADAMS INC
Mr M van Staden
FOR RESPONDENT: ADV A SNIDER
APPOINTED BY: TSHIQI ATTORNEYS