IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT CAPE TOWN
Case Number C380/2007

In the matter between: 

NATIONAL UNION OF MINEWORKERS			APPLICANT

and 

BLACK MOUNTAIN – A DIVISION OF ANGLO 
OPERATIONS LIMITED						RESPONDENT

JUDGEMENT

BASSON, J

3)	This is an urgent application for an order –

(i)	declaring that the notice of lock-out issued to the Applicant and its members by the Respondent at 17H15 on 11 July 2007 to be invalid and of no force and effect; 
(ii)	declaring that the Respondent’s lockout of the Applicant’s members with effect from 6H00 on 14 July 2007 to be unprotected under section 68 of the Labour Relations Act 66 of 1995 (hereinafter referred to as the “LRA”); 
(iii)	interdicting and restraining the Respondent forthwith from continuing with the lock-out; 
(iv)	directing the Respondent to permit all of the members of the Applicant who have been locked out in accordance with the lock-out to return to work; 
(v)	declaring that all of the Applicant’s members who have been precluded from working at the Respondent’s operations as a consequence of the aforesaid lock-out are entitled to be remunerated as if they had worked their normal shifts during the period of the lock-out. 

4)	In addition hereto, the Applicant also sought an order declaring that all the acceptance forms signed by members of the Applicant who have elected to resume employment to be void and of no effect and to declare that certain clauses in the acceptance form are unlawful in that they constitute an invasion of the individual worker’s right to strike and are in contravention of the provisions of section 5(3) of the LRA. In its reply the Applicant indicated that it no longer sought these orders in respect of the acceptance forms. As a result the only issue that remained to be decided on the papers was in respect of the legality of the lock-out.

BACKGROUND TO THIS DISPUTE

5)	I do not intend referring to the background to this dispute in much detail in light of my conclusion that the matter is not urgent and that it should accordingly be struck of the roll. Suffice to briefly point out that the parties have for some time been locked in a dispute about the wage gap between certain grades in the bargaining unit. In an attempt to find a solution to this dispute, it was initially agreed that the parties would proceed with a job evaluation programme whereby all the positions within the bargaining unit would be evaluated. The parties were, however, not able to agree on an appropriate job evaluation programme or system which would be used to assist in determining a broad-banded job structure for all jobs in the bargaining unit. 

6)	In September 2005 the Respondent proposed that the so called “JE Manager” system be used in the job evaluation exercise in an attempt to close the wage gap between level 1 and C1. The parties could not agree on this evaluation system. Ultimately the Respondent proposed that the so-called “Proudfoot Organizational Alignment” system be used. This seemed to be acceptable to the union. The parties later came to refer to this system as the “In die Kol”- project. Unfortunately the “In die Kol” project failed and in October 2006 the Respondent took a further initiative and introduced the so-called “Career Development System” (hereinafter referred to as the “CDS”) to progress the outcomes which it had hoped the “In die Kol” project would produce. Again the parties could not resolve the longstanding and ongoing dispute between them and on 15 December 2007 the Applicant declared a dispute. It appears from the minutes of the meeting held on 15 December 2006 that the Applicant had informed the Respondent that they were “no longer prepared to take the immense pressure from there (sic) members regarding the non-delivery of this project. The members gave them a mandate in October to declare a dispute”. 

7)	On 31 January 2007 the Applicant delivered a letter to the Respondent in which it formally declared a dispute in respect of the CDS. Two further dispute meetings were held between the disputing parties in accordance with the Recognition and Procedural Agreement whereafter the dispute was referred to the CCMA. The referral form described the dispute as one relating to the “In die Kol/CDS”. A certificate of non-resolution was issued on 17 May 2007. After the mandatory “cooling off period” of 5 days was observed, a strike notice was issued. Members of the Applicant embarked on protected strike action on 17 June 2007.

8)	According to the Applicant’s papers the strike lasted until 6 July 2007 when Mr. Vass (the deponent of the founding affidavit and the full-time shopsteward of the Applicant) informed Mr. Van der Mescht (the Respondent’s Employee Relations Manager) and Mr. Hans Botha (the Human Resources Manager) that the Applicant was “suspending” the strike. The founding affidavit further states as follows: “The parties had not yet reached agreement, but the return to work signaled intensified attempts by the Applicant to negotiate a settlement.” It was contended by the Respondent that Vass had informed Van der Mescht (the deponent of the answering affidavit) that “[o]ns kom net terug werk toe sodat die manne se mae weer kan vol word. Dan sal ons weer met ons dinge begin”. 

9)	A written lock-out notice was issued by the Respondent on 11 July 2007. In this notice the Respondent demanded, inter alia, the unconditional acceptance of the CDS. This demand corresponds with the dispute which the Applicant had referred to the CCMA and in respect of which a non-resolution certificate was issued. I interpose here to point out that it was the Respondent’s case that the lock-out was lawful in light of the fact that – 

(i) 	more than 48 hours notice of the commencement of the lock-out was given; 
(ii) 	the demand in relation to the lock-out was set out clearly in the notice; and 
(iii)	the demand was in respect of the same dispute that was referred to the CCMA. In this regard the notice stated that the lock-out was for the purpose of compelling the employees to accept this demand and was in response to the strike over the same issues which had been ongoing for three weeks and which had not been abandoned. The lock-out was further in respect of the employees in the bargaining unit. 

9)	It was, however, the case for the Applicant that the lock-out was unlawful and argued that a lock-out cannot be resorted to after a strike had ended or, put differently, in circumstances where there is no longer a refusal to work.

10)	After the commencement of the lock-out the respondent made an offer to all the employees in the bargaining unit. In terms of this offer the Respondent offered to all employees to accept the CDS as set out in the lock-out notice and to return to work in full and final settlement of the CDS dispute. Those employees who timeously accepted the offer would receive 50% of their basic wages that they had lost as a result of the lock-out that had commenced on 14 July 2007. It was common cause that some of the members of the Applicant had accepted the offer.

URGENCY

11)	From the aforegoing it is clear that the lock-out notice was issued on 11 July 2007 with effect from 06H00 on 14 July 2007. What is, however, also clear is that the present urgent application was only filed with this Court on 30 July 2007 which is approximately three weeks after the lock-out notice was issued to the members of the Applicant. Moreover this application was brought on 48 hour’s notice.

12)	It is trite that an applicant who approaches this Court on an urgent basis must make out a case for urgent relief on the papers in sufficient particularity. This much is clear from Rule 8 of the Rules of the Labour Court which expressly states that a party that applies for urgent relief must file an application that complies with the requirements of Rule 7(1); 7(2); 7(3) and if applicable 7(7) of the Rules.  Rule 7(2) expressly requires that the affidavit in support of the application must contain the following: 

(a) the reasons for urgency and why urgent relief is necessary; 
(b) the reasons why the requirements of the rules were not complied with, if that is the case; and 
(c) if a party brings an application in a shorter period that that provided for in terms of section 68(2) of the Act, the party must provide reasons why a shorter period of notice should be permitted. 

13)	Urgency in itself does not relieve a party from this obligation and the Applicant should, in as much detail as possible, place such facts that are necessary before the Court and which will enable this Court to decide whether the forms and service provided for in the rules should be dispensed with. Only once an applicant has persuaded the Court that sufficient grounds exist which necessitate a relaxation of the Rules and ordinary practice, will the Court proceed to consider the matter as one of urgency. The extent to which the Court will allow parties to dispense with the Rules relating to time periods will depend on the degree of urgency in the matter. 

14)	In the present matter the founding affidavit is devoid of any explanation of the reasons for urgency and why urgent relief is necessary. It is also not sufficient to rely on an argument based upon implications and deductions which may be made from allegations contained in the affidavit that the matter is urgent. In fact, the founding affidavit does not address the question of urgency at all: Apart from prayer 10 of the Notice of Motion in terms of which condonation is sought for the Applicant’s non-compliance with the relevant provisions of the LRA and the Rules of this Court, no case has been made out on the papers as to why there should be a departure from the normal rules. More in particular the Applicant does not event attempt to explain why this application was not brought to this Court shortly after the lock-out notice was issued. It is trite that an Applicant cannot create its own urgency by delaying bringing an application. This Court will not come to the assistance of an applicant who has delayed approaching the Court. See National Police Services Union & Others v National Negotiating Forum & Others (1999) 20 ILJ 1081 (LC) at 1092 paragraph [39] where Van Niekerk, AJ stated the following: 

“The latitude extended to parties to dispense with the rules of this court in circumstances of urgency is an integral part of a balance that the rules attempt to strike between time-limits that afford parties a considered opportunity to place their respective cases before the court and a recognition that in some instances, the application of the prescribed time-limits or any time-limits at all, might occasion injustice. For that reason, rule 8 permits a departure from the provisions of rule 7, which would otherwise govern an application such as this. But this exception to the norm should not be available to parties who are dilatory to the point where their very inactivity is the cause of the harm on which they rely to seek relief in this court. For these reasons, I find that the union has failed to satisfy the requirements relating to urgency.”

15)	As already indicated the Applicant in the present matter has launched this application on 48 hours notice to the Respondent approximately three weeks after the lock-out notice was issued to the employees. Yet the Applicant does not tender any explanation for the delay in its founding papers. I am in light of the aforegoing of the view that the Applicant has created its own urgency by the substantial delay. Furthermore, the application does not comply with the provisions of Rule 8 of the Rules of this Court which spells out in clear terms what is expected of an Applicant when he or she approaches this Court on an urgent basis. Consequently, I am of the view that the application falls to be struck of the role on this basis alone.

COSTS

16)	In respect of costs it was argued by the Respondent that costs should be awarded including the costs of two counsel. On behalf of the Applicant it was argued that a costs order will be inappropriate in light of the fact that there is an ongoing relationship between the parties. 

17)	It is indeed so that parties before this Court frequently have an ongoing relationship that will have to survive long after the dispute has been entertained by the Court. In exercising the discretion whether or not the general rule should be followed namely that costs follow the event, it is necessary to have proper regard to all the facts and circumstances including but not limited to the conduct of the parties in bringing this application on an urgent basis before this Court. I am of the view that a cost order is appropriate in the present circumstances: The Applicant has approached this Court on an urgent basis where clearly it has created its own urgency. Moreover, its papers are fatally defective in the sense that it contains no explanation for delaying the application until now.

18)	In the event the following order is made:

The application is struck off the role with costs (including the costs of two counsel).

-----------------------------------
BASSON, J

DATE OF HEARING: 1 AUGUST 2007
DATE OF JUDGEMENT: 2 AUGUST 2007

FOR THE APPLICANT:
 P Gamble SC
H Rabrin-Naicker
Instructed by Cheadle Thompson & Haysom Inc

FOR THE RESPONDENT:
M Wallis SC
ML Norton
Instructed by Edward Nathan Sonnenburg