IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT CAPE TOWN
                                                                  CASE NO:C134/2007

In the matter between:
THE SOUTH AFRICAN BUS EMPLOYERS’
ASSOCIATION	APPLICANT
and 
THE SOUTH AFRICAN TRANSPORT AND ALLIED
WORKERS UNION (“SATAWU”)	1st RESPONDENT
THE TRANSPORT AND OMNIBUS WORKERS
UNION (“TOWU”)	2nd RESPONDENT
THE SOUTH AFRICAN ROAD PASSENGER
BARGAINING COUNCIL (“SARPBC”)	3rd RESPONDENT

JUDGMENT

NEL AJ

In this matter an urgent application was brought and a rule nisi granted by this Court on 27 March 2007.  Underlying the urgent application was the circumstance that the Union parties before this Court, being the first, second and third respondents, had issued notice to the employer organisation party, that is the applicant before this Court, of an intended strike which the Union parties were to embark on.  As a result of that the applicant herein dispatched a letter to all the respondent parties in which it very clearly indicated the grounds and reasons why the intended strike action was regarded by the applicant party as being unprotected.

Subsequent to the rule being issued by this Court on 27 March 2007, the second respondent anticipated the rule, which led to this Court confirming the rule, as far as the second respondent was concerned.  In doing so the Court provided brief reasons for confirming the rule as against the second respondent.  As I said that occurred on the 2nd of April 2007.  

What I believe the Court would be right to say was actually common cause, but to the extent that it may not have been common cause, it was certainly clear that the reason why the respondent union parties gave notice of its intended strike had as the essential purpose the timing, namely that the timing of the strike was to take place over the Easter weekend in order to possibly exercise the maximum economic power which of course is the underlying essence of industrial action.  It is in a manner of speaking a party using its constitutional right to effect pressure and to place and put pressure on the opponent party, in this event the employer party, in order to attempt to induce it to come around to the point of view during collective bargaining held by, in this case, the Union.

In effect the grounds and/or reasons proposed by the applicant party why the strike would be unprotected were procedural in nature, or, putting it differently, they were in effect reasons which were capable of being cured.  Included in those reasons was the fact that it was contended that a particular dispute resolution framework had been agreed on. It was to the effect that a “cooling-off period” should be used by the parties, patently clearly for the purpose of trying to resolve their differences, an equally patently clearly reasonable attitude adopted by what appears to be mature, responsible and reasonable parties who have congregated themselves in a bargaining council for the purposes of collective bargaining.  

In essence accordingly the point of dispute before this Court, in a nutshell, boiled down to the timing of the strike, with the employer simply saying that there ought to be a period of 30 days of cooling off after the parties had, on certain issues, remained in deadlock and with the Union parties, as I said, being hell bent to have their strike action take place over the Easter weekend, because of the fact that that would bring the maximum amount of economic pressure to bear on the employer.

That is a perfectly legitimate tactic and the Union parties are not faulted for that being their tactic.  Again, assuming in their favour, as I do, that it had the genuine and bona fide hope that if they were to be able to embark on protected strike action at that period in time it may have acted as sufficient persuasion to get the employer to agree to its standpoint.  

As it turned out, on the facts and evidence placed before the Court by the applicant and the second respondent, this Court confirmed the order. In effect it accordingly had indicated in the clearest of terms, most certainly to the second respondent, that it was the view of the Court that there was substance in the propositions which already were made to all the parties, that is the Union parties, on 26 March 2007.    

Today the first and third respondents appear before me, not opposing the relief sought, namely the confirmation of the order also against the first and third respondent, but simply to argue costs.

Mr Field who appeared on behalf of the first and third respondents before me reminded the Court of the principles contained in the very well known case of NUM v East Rand Gold and Uranium Company Limited 1992(1) SA 700 AD, and took the Court in his argument through all the principles enunciated in the aforementioned case.  

Mr Kahanovitz on the other hand, appearing on behalf of the applicant, suggested in argument that the Court should have regard to the circumstances prevailing at present and suggested that those circumstances are different than those which prevailed at the time of the judgment referred to supra.  He most certainly did not try to persuade me that the principles contained in the NUM v Ergo matter (supra) no longer finds application.  What I understood him to be saying is that the Court should have regard to the landscape as it is now presented and simply bear in mind that circumstances were considerably different in 1992, when the Ergo matter was adjudicated, than they are today.

I believe that in the present labour relations environment the landscape has changed to the effect that strike action has become constitutionally protected.  I would also daresay that in order to participate in protected strike action, the legislature has also in a certain way simplified the processes and procedures.  The landscape now has the effect that if a Union and its members embark on protected strike action, it effectively means that it is protected from dismissal and it has obviously strengthened the position of Unions to a great extent.  But with that comes the responsibility that Unions and their members must play according to the rules, and obviously the same applies to employer parties in terms of lock-out action.  The rules are very clear. The rules are in the view of the Court not complex, but obviously, as is very often the case, the law has a tendency to present itself continuously against factual backgrounds which require parties to apply their minds in order to make sure that their conduct complies with the law of the moment.  

In the present matter I believe that what effectively happened here was that on the Union parties giving notice of their intention to strike, legal advice was sought and obtained by the employer party, and a very clear view was adopted by the employer to the effect that the intended strike action would be unprotected.  I would imagine, without that clearly being stated before the Court, that the Unions to whom I have ascribed maturity and sensibility, would also have sought legal advice.  

In the event the only fact that is clearly before the Court is that on 27 March 2007 the rule nisi was issued and at that point in time the first and third respondents did not oppose the rule being granted.  It had the opportunity in terms of that rule, which was issued, to file its responding papers, to indicate why it believed that its intended strike action would be protected.  In the event only the second respondent did so, and, as I said, had done it on an anticipated basis and much earlier than actually the agreed timeframe.  

There is no indication before the Court that at any point in time the attitude adopted by the first and third respondents was one of approaching the employer party and saying to them, even if it was with the reservation that it still contended that it was right, but in order to get on with that which they are all about, namely collective bargaining, to then embark on the “cooling off” period and to do what was required of it to be done, also including obtaining the necessary advisory award.  

In fact there is not an iota of evidence before the Court of a change of attitude.  With that I mean that it was clearly never conveyed to the applicant employer in response to its clear message despatched on 26 March 2007, by any of the Union parties, that there was a change of mind and that any one of those Union parties would now continue rather to follow the route of complying with the specific areas in respect of which the employer party had indicated non-compliance would lead to the strike action being unprotected.  In fact what occurred is that clearly the first and the third respondents did approach the applicant party indicating to the applicant that the first and third respondents would agree to the rule nisi being confirmed on the return date being today, in respect of those parties but on the basis of the applicant not seeking costs.

Mr Field handed up an affidavit and attached to this affidavit, submitted on behalf of the first and the third respondents, is a letter dated 26 April 2007, despatched by Mr Field to the applicant’s attorneys of record.  In this letter it stipulates the position of the first and third respondent which in essence is that the applicant may have its order confirmed but that each party should pay its own costs.  

The letter continues to state the following:

“We wish further to place on record that our clients are of the view that this is an eminently reasonable proposal which allows your client to obtain the substantive relief which it seeks.  Notwithstanding that our clients do not agree that your client is entitled to same, but nonetheless maintains the relationship between the parties which could be further detrimentally impacted upon if your client were to be awarded costs.  In this regard we refer you to the well known decision of the reported judgment of NUM vs East Rand Gold and Uranium Company Limited 1992(1) SA 700 AD.”

It accordingly is quite clear in the first instance that the first and third respondents, subsequent to receiving the letter from the applicant’s attorneys of record dated 26 March 2007, did not convey, and there is no evidence before me of these two respondent parties having at any point in time adopted an attitude that they agree with the contentions of the applicant party, that the intended strike action would be unprotected.  If anything, as is apparent from the letter which I quoted a moment ago, the first and third respondents to at least the 26th of April 2007 remained of the view that the applicant party was not entitled to the relief it sought.

The question accordingly is was it reasonable, fair and justified of the applicant party to approach this Court in an effort to protect its constitutional right, namely that in the event of strike action taking place, that it be done in accordance with the law of the land.  There can be no question that the conduct of the first and the third respondent forced the applicant to approach this Court.  It has effectively done so successfully and as Mr Kahanovitz reminded me, with reference to the NUM vs ERGO case supra, as stated by Goldstone JA at that time, and I quote from the judgment at page 739:

“2.	The general rule of our law that in the absence of special circumstances cost follow the event is a relevant consideration.  However it will yield where considerations of fairness require it.”

Mr Field has reminded me that Section 163 of the present Labour Relations Act still stipulates that costs will be determined, having regard to the requirements of law and fairness.  He confirmed, and did not try to persuade me that the successful party will still be a weighty consideration.  He did not concede it to be a weighty one but he certainly did confirm that that is still a relevant consideration.  He referred me to the fact that the parties are still negotiating at this very moment in respect of the substantive issues which they remained in dispute on in terms of the collective bargaining processes.  To the extent necessary he reminded me of the ongoing relationship.  

He also argued that the dispute is a bona fide one and that would be, I imagine, the dispute between the parties as to whether the strike action which the first and third respondents intended embarking on, remains in their minds bona fide a justified approach.  He further suggested that a cost order now granted may have a chilling effect on the negotiations presently taking place, and he finally indicated with reference obviously still to the NUM vs ERGO matter supra that consideration must be had to the conduct of the parties.   He submitted that this was not a wildcat strike, which was accompanied by violence which unfortunately is an occurrence too often occurring and which this Court has personal knowledge of.  His argument was that in essence what the Court here has is a legal dispute and for those reasons he argued the Court should not grant costs against the first and third respondents.  

The Court is of the view that there are no requirements of fairness which under all these circumstances present herein dictate that the approach that the successful party ought to be granted its costs should yield to.  I believe that it is so that this is a matter which centred on the legal issues which the applicant party had conveyed to the Union parties. The fact of the matter is I do not have evidence to the contrary.  In fact every indication would indicate, particularly again with reference to the letter from Mr Field, which I referred to earlier, that the first and third respondents to this moment maintain that their position was the correct one and they still contend that the applicant is not entitled to the relief but it was agreed to, granted it would appear, simply for the purpose of seeing whether it could not avoid the cost order which the applicant persisted in seeking.

I believe that when a party conducts itself in such a manner having in the first instance forced an employer party to have to approach this Court on an urgent basis and where a rule is issued but even more so, shortly thereafter the rule is confirmed in respect of one of the respondent parties, there is no evidence placed before the Court of a change of attitude or conduct on behalf of any of the respondent parties relating to the particular points of law raised by the applicant.  I do not believe that those are circumstances which should induce a Court to then regard the ongoing relationship and the fact that negotiations are still taking place to be sufficiently relevant and weighty to induce it, in the exercise of its discretion, not to grant an applicant who was successful the costs it had to incur in the process.

I do particularly believe that the level of maturity which employer and Union parties have at this point in time of our Labour Relations History achieved, which now has really run a good 27 years, is such that parties should be sufficiently mature that if they wish to cross swords in a court of law because either they themselves or their respective lawyers, on whose advice they depend, have opposing views, they should accept that there may be cost implications. If not so, it may be the very reason why the courts unfortunately are perhaps burdened, or overburdened. The fact of the matter is that whilst it is the very right which parties have to adopt differing views, in the event of a particular party then being held to have been unsuccessful, or its view having been found to have been one which the Court does not share, then as Mr Kahanovitz suggested, parties should no longer believe in and run to the principles contained in NUM vs ERGO thinking that the worst case scenario is that whilst an order may be granted against them, costs would not follow.  By that statement I do not suggest that any of the principles contained in the NUM vs ERGO matter, by which this Court is in any event bound, are no longer applicable.

This Court will continue to consider costs orders on a basis of ensuring that the cost orders granted do not in and by itself become a deterrent for parties to approach this Court.

I do however believe that it is important that litigant parties should approach a matter on the basis of realising that when they adopt a particular attitude, even if it is one based on issues of law, and a finding of Court goes against them, it is more probable than not that the costs would follow the result.  There will have to be special circumstances which overrule the principle (that costs would normally follow the result) to drive the Court not to grant the successful party its costs.

Those special circumstances need to be specifically pleaded and put before a Court for it to consider.  Having considered the matter I accordingly am of the view that no special circumstances are present in this matter, which persuade the Court not to grant the applicant its costs against the first and third respondents as well.  Accordingly the rule is confirmed and the first and third respondents are ordered to pay the applicant’s costs of suit.  

Just to conclude my judgment and to properly record the order, the order that I accordingly make is:

1)	The rule is confirmed;
2)	The first and third respondents are ordered to pay the costs of these proceedings, jointly and severally, with the second respondent, the one paying the other to be absolved.

					
DEON NEL
ACTING JUDGE OF THE LABOUR COURT