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BIFAWU v African Bank (J4457/01) [2001] ZALC 167 (11 October 2001)

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JUDGMENT


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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

___________________________________________________________

J U D G M E N T

___________________________________________________________

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 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.



_____________________

A A Landman

Judge of the Labour Court of South Africa

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