Bapotrans (Pty) Ltd v Association of Mineworkers and Construction Union (AMCU) and Others (J666/20) [2021] ZALCJHB 435 (15 November 2021)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Reportable

CASE NO: J 666/20

In the matter between:

BAPOTRANS (PTY) LTD Applicant

and

ASSOCIATION OF MINEWOKERS AND

CONTRUCTION UNION (“AMCU”) First

Respondent

TIMOTHY MTSHEMLA Second

Respondent

TIRISANO TRANSPORT AND SERVICES

WORKERS UNION (TRISANDO) Third

Respondent

UNIVERSAL TRANSPORT AND ALLIED

WORKERS UNION (UTAWU) Fourth

Respondent

THE PERSONS WHOSE NAMES ARE LISTED

ON ANNEXURE “A” TO THE NOTICE OF

APPLICATION Fifth

to Further Respondents

Date Heard: 02 November 2021

Date Delivered: 15 November 2021

JUDGMENT

MANGENA AJ

[1] It is not without reason that it is often said that the issue of costs in legal proceeding is vexed- meaning difficult and problematic. This difficulty is more pronounced and preponderant in labour matters where issues of a person’s livelihood and dignity founded on the right to work are involved. It is inrecognition of these rights that the established rule that costs follow the results does not apply in labour matters. This is not out of overzealous desire to pander to the whims and wishes of the working class but because it is a constitutional imperative. It is an acute and candid acknowledgement of an unequal power relations in the labour market where those who sell their labour for a living are often exploited. Like all those who are vulnerable, the constitution provides the shield and call upon those entrusted with power to adjudicate labour disputes not to unwittingly negate this protection. Does this mean that a court adjudicating a labour dispute can never issue a cost order against another party? The facts of this case call upon me to answer this question.

[2] On the 21 July 2020. Van Niekerk J sitting in an urgent court granted a final interdict against the respondents by consent. Para 4 of the court order stated that “Costs are reserved for determination at a later date in relations to the First, Second and those individual respondents who are members of the First Respondent(AMCU).

[3] The order above emerges out of the following facts: During May 2020 AMCU through its official lodged a grievance with the management of Bapotrans (Pty) Ltd (the company) relating to the allegations of use of vulgar language and insults hurled at the employees by certain specified members of management. It called upon the management to investigate the allegations, ensure that disciplinary steps are taken and be dismissed if found guilty. The company acted on the demand by setting in motion an enquiry to establish the veracity of the allegations. At the beginning the enquiry was intended to be presided over by an executive manager responsible for Human Resources and when objection was raised, the company relented. An external chairperson was appointed to conduct an independent and credible enquiry on the grievance by the employees. AMCU for some reasons failed to participate in the enquiry. This failure is not without significance when regard is had to the fact that AMCU is the union that lodged the grievance. The enquiry nonetheless continued and the hearing was finalised without AMCU’s contribution on this dispute resolution process. The chairperson, Mr Mohau Radebe made his findings on 24 May 2020 wherein he found as follows:

“In light of the unchallenged submissions as well as the absence of any clear admissions from the respondent, I am compelled to recommend that the employer should without any further delay subject Mr Els to formal inquiry unless the employer (is) in a position to propose alternative remedial solutions acceptable to both the complainant party and the respondent.

Joe Joubert and Dion Kotze have been excluded from the outcome of these finding as they were found not to be part of the events that led to the above mentioned grievance as per the dismissal ruling dated 20 May 2020”

[4] Whilst the company was engaging in this process, the employees who were members of the recognised Unions embarked on an unprotected strike causing disruptions in the operations of the company, intimidating other employees and threatening them with violence. The company’s plea to the employees to desist from committing acts of violence were ignored. On or about 08 May 2020, an ultimatum was issued to the employees calling them to make representations as to why they should not be dismissed if they do not return to work by 14h00 on 08 May 2020. It was only after this ultimatum that the employees returned to work. In the dismissal ruling dated 21 May 2020, the chairperson found that Joubert and Kotze were not implicated and he exonerated them.

[5] In the intervening period, there was a flurry of correspondence exchanged between AMCU represented by second respondent and the company in an effort to resolve the dispute as quickly as the circumstances allow. In the cause of these exchange, AMCU changed tack and called upon the company to find that Els, Kotze and Joubert are incompatible with the company and what it stands for. It called upon the company to institute a compatibility enquiry and that the same be chaired by an external person appointed by both parties. The company once again undertook to initiate the investigation and take disciplinary steps” provided there is a prima facie basis for such an action.” It invited AMCU to provide the details regarding incompatibility allegations as well as to propose three names of the people it considers suitable to chair the enquiry. Once again AMCU rebuffed the goodwill gesture from the company and recited its stance that the company is in possession of the information. It refused to provide the names as requested and eventually arrogated to itself the right to do so at the time of its own choosing.

[6] Upon receipt of the report from the independent external chairperson, the company accepted the recommendation that Els be charged and placed him on a precautionary suspension pending finalisation of the disciplinary process. It addressed a letter to AMCU imploring it to respect the outcome and prevail upon its members to allow Joubert and Kotze to report for duty as they were cleared of any wrongdoing. The company once again reminded AMCU of the invitation made to propose three names of the persons to chair the enquiry. The letter recorded the following with regard to its stance on the unruly conduct which I deem necessary to quote in full.

“[7] Should AMCU or its members unlawfully interfere with the company’s operations in any way or prevent Messrs Joe Joubert and Deon Kotze from returning to work or performing of any of their duties or function the company reserve(s) its rights in full to approach the Labour Court for [an] interdictory relief and to hold AMCU responsible for its action and those of its members. The company further reserves the right to recoup from AMCU and its members any loss or damages it may suffer as a result of any interference with its business operations or any form of unlawful conduct by AMCU and its members. The company urges AMCU to provide clear guidance to its members and warn its members of the potential consequences of their unlawful conduct. The company will not tolerate any form of unruly conduct and will take disciplinary action against any employee that commits misconduct.

[7] AMCU was unfazed and signatted its intention to defy the company when it accused her of protecting Joubert and Kotze by acquitting them. It called upon the company to allow them to attend the enquiry despite the fact that they have been cleared. This was an act of disdain to the co-operative and accommodative attitude the company had shown towards AMCU. Nonetheless it submitted the name of Mr Kenneth Dlamini to chair the enquiry.

[8] The company notified AMCU of the date and venue of the disciplinary hearing and advised that Advocate Mzu Mthombeni will be chairing. AMCU was not pleased with these developments and considered the decision to proceed with the hearing as being unilateral in the sense that it was not consulted on the date as well as the appointment of the chairperson. It stated in its letter that “if parties cannot agree with [on] a chairperson, AMCU will not participate in the process let alone our (its) unavailability on Wednesday.”

[9] The disciplinary hearing scheduled for the 3rd of June 2020 was disrupted by AMCU and its members as well as certain unidentified members. This is surprising as AMCU had been on the forefront of the call to have the allegations investigated and if established, disciplinary steps be taken against those implicated. The hearing was rescheduled to 07 July 2020. On 29 June 2020 AMCU shop stewards addressed a letter to the company in which they stated that AMCU and its members had resolved that Els be allowed to return to work. Acting on the basis of this letter, the company uplifted the suspension of Els and called him to report for duty on 1 July 2020.

[10] Upon Els’s return to work, AMCU and its members somersaulted on their earlier advice and convened a meeting whereafter it presented a list of demands to the company. The company sought legal advice from its attorneys of record who addressed a four paged latter to AMCU and other unions setting out the history of the dispute and all the major developments which took place until their involvement. The attorneys sought an undertaking that the trade unions and their members will not interfere with the operations of the company and will respect the due legal process underway regarding the guilt or otherwise of Els. The letter concluded by stating that should the undertaking not be received, the company will approach the Labour Court for urgent interdictory relief and seek a special punitive cots order in this regard. The company will further take disciplinary action against any of its employees that engage in misconduct and such disciplinary action may lead to the summary dismissal of the employees involved. None of the unions gave an undertaking as requested. AMCU on its part re-iterated its unavailability to attend the disciplinary hearing of Els re-scheduled for the 07 July 2020.

[11] The disciplinary hearing of Els continued on the 07 July 2020 and the chairperson rendered a ruling on 15 July 2020. He discharged Els of any act of misconduct. Els reported for duty on the 16 July 2020 and was immediately prevented from performing his duties by the unions and their members who made it clear they were not accepting the findings of the disciplinary hearing. Having exhausted all available peaceful means at their disposal the company approached the Labour Court on an urgent basis alleging that it had no adequate alternative remedy. The court agreed and granted an interdict incorporating order 4 referred to in the preceding paragraph.

[12] Against the above-mentioned background facts, Advocate Malan SC appearing for the company implored on me to find that AMCU, Mr Mtshela and members of AMCU mentioned on the list have conducted themselves in an egregious manner repugnant of the spirit of the collective bargaining. Their conduct deserves of censure by the court in the form of a special punitive costs order. He argues rather forcefully that AMCU, as a majority union has failed in its duties to provide leadership and call upon its members to respect the due process established to investigate the grievance laid by the employees. It is further contended that by its conduct AMCU had been obstreperous and undermined the objectives of the constitution and Labour Relations Act (LRA)[1]. In support of his submissions, he finds legal authority in several case law, noticeably the remarks of Sutherland AJA (as he then was) in Food and Allied Workers Union v IN2Food (Pty) Ltd[2] where he said

“The respondent’s thesis that a trade union, as a matter of principle, has a duty to curb unlawful behaviour by its members

indeed enjoys merit. Indeed, the principle of union accountability for its actions or omissions is beginning to gain recognition….”

The remarks were in supported of those made by Steenkamp J in the same matter where he said: the time has come in our labour relations

history that the trade unions should be held accountable for the actions of their members. For too long trade unions have glibly

washed their hands of the violent actions of their members. (see Tsogo Sun Casinos (Pty) Ltd t/a Montecasino v Future of South African workers Union and Others[3], Verulam Saw Mills v AMCU[4] , Xstrata SA (Pty) Ltd Vamcu and Others).[5]

[13] After the court order was issued with the consent of the unions including AMCU its members continued to disobey the order by blocking Els, Joubert and Kotze from reporting for duty on 20 July 2020. AMCU further failed to ensure that its officials were on site to prevent the potential disruption which may occur. The disregard of the court order viewed in the context of the events preceding the court application lends credence to the view that AMCU and its members were not committed to the labour peace but were rather hell-bent on undermining the dispute resolution mechanism by the company and therefore the rule of law.

[14] AMCU on its part, represented by Advocate Hollander marshalled a defence in opposition of the costs order and argued that: The court as a rule do not grant costs orders in situations where doing so valid imperil or have a chilling effect on the employment or collective bargaining relationship between the parties. He submitted that the applicant has on the facts spectacularly failed to provide the basis justifying the imposition of a special punitive costs order. If anything, so he argued, AMCU acted with the best of intentions in defence of the rights of its members who were subjected to abusive language on the factory floor. As he puts it, AMCU was representing its members without fear, favour or prejudice, playing its role in the best tradition of its calling. The company was the source of the labour unrest as a result of the manner in which it dealt with the grievance. The import of this submission is that AMCU was justified to pursue the grievance and it should not be discouraged by a punitive costs order. He found support for his submission in Member of the Executive Council, Kwazulu Natal v Dorkin N.O[6], where Zondo JP (as he then was) said: The rule of practice that costs follow the result does not govern the making of orders of costs in this Court. The relevant statutory provision is to the effect that orders of costs in this Court are to be made in accordance with the requirements of the law and fairness. And the norm ought to be that cost orders are not made unless those requirements are met. In making decisions on cost orders this Court should seek to strike a fair balance between on the one hand, not unduly discouraging workers, employers, unions and employers’ organisations from approaching the Labour Court and this Court to have their disputes dealt with, and, on the other, allowing those parties to bring to the Labour Court and this Court frivolous cases that should not be brought to Court.

[15] In consideration of issues of fairness, Advocate Hollander raised 10 points which ought to be taken into account in the determination of the issues of costs. Chief amongst them were that the company has unfairly targeted AMCU and its members when on the facts it is not only AMCU members who were involved in the act of disruption. There were other unions involved together with their members some of whom have been identified and mentioned in the list. Accordingly, it would be unfair for AMCU to bear liability for the acts of individuals who were not its members. There was also an issue of double jeopardy in that the company had already instituted disciplinary actions against the identified employees and dismissed them from the company. Imposing a cost order against the union will be double jeopardy in that members have already been penalised with dismissal. The union has lost, membership fees as a result of these dismissals- but also those who did not participate in the unlawful act will be indirectly penalised. Finally, it was submitted that there is an ongoing relationship between AMCU and the company and all factors considered

cumulatively militate strongly against an imposition of a punitive costs order.

[16] The awarding of costs in the Labour Court is governed by section 162 of the LRA which provided that in making orders for payment of costs, the court has to have regard to the requirements of law and fairness. In deciding whether to order the payment of costs, the court may take into account, amongst others the conduct of the parties in proceeding with the matter before court and during the proceedings.

[17] The constitutional Court has in several cases confirmed the correctness of the rule that in labour dispute costs does not follow the results. It is only in exceptional cases that a departure from this rule will be applied. In doing so, the ought to be sufficient justifiable reasons advanced to show that indeed the requirements of the law and fairness were considered. In its latest and recent judgment on the issue, the court made it abundantly clear that the rule derives its foundation in the Constitution and its application is not an act of overzealous generosity. On the contrary, it is an execution of a constitutionally mandated obligation. In this regard I can do no better that to borrow generously from the words of Kampepe J in the case of Union for Police Security and Corrections Organisation v South African Custodial Management (Pty) Ltd[7], where she with profound and logical clarity explained the position as follows: -

“[30] In the labour context, the right of access to the statutory dispute resolution mechanisms created by the LRA guarantees that labour

disputes, which are not infrequently fraught and contested, are resolved in peaceful, regulated and institutionalised fora. It

ensures that parties do not resort to unlawful means of resolving disputes that should be ventilated in the specialised institutions

envisaged by the LRA. Indeed, the priority given by the LRA to the dispute resolution mechanisms that it creates is no more evident than in its proscription of industrial action if the issue in dispute “is one that a party has the right to refer to arbitration or to the Labour Court”. When the very same institutions created by the LRA shut their doors to litigants by too keenly mulcting them in costs, they encourage recourse to industrial action and other proscribed means to air disputes that the LRA demarcates for resolution in those institutions.

[31] Lest I be misunderstood, I must make this clear: the right to pursue industrial action, which is protected by both the LRA and section 23 of the Constitution, is indispensable to our democracy. It is “of both historical and contemporaneous significance”; it enables workers “to assert bargaining power in industrial relations”; and is a key “component of a successful bargaining system” of the nature contemplated in the Constitution and the LRA. Nothing said in this judgment must be taken as suggesting otherwise. The crisp point I am making, rather, is this: when costs orders are too readily made against those who seek to vindicate their constitutionally entrenched labour rights in the specialist institutions created by the LRA, employers and employees alike may be left with no option but to resort to industrial action to remedy disputes that the LRA places beyond the purview of protected industrial action. That would cultivate unlawfulness and be inimical to the foundational value of the rule of law underpinning our democratic order.

[32] It is therefore imperative for our democracy that the doors of labour dispute resolution institutions be kept wide open for litigants to air their grievances, so that unlawful industrial action, and all its potential consequences, is generally avoided. That accords with the scheme of the LRA, which contemplates industrial action only where no other avenues are readily available. The rule against automatic costs orders is an integral part of that scheme in that it ensures access to labour dispute resolution institutions and no doubt enlarges the width by which the doors of those institutions are kept open.”

[18] In Callguard Security Services (Pty) Ltd v Transport and General Workers Union and Others[8], a case in which the facts are almost analogous to the one in casu, where the applicants sought a costs order against shop stewards but not against their co-workers because of the specific role they played in a dispute, Zondo AJ (as he then was) found it unfair to order costs against shop stewards only and not against the rest of the employee respondents in circumstances where the decision to threaten the industrial action was not just a decision of the shop stewards on their own but that of all the employee respondents. He arrived at this decision guided by the Plascon Evans rule applicable in motion proceedings that where it is clear that the facts, although not formally admitted, cannot be denied must be regarded as admitted. On the papers before him, the version by the shop stewards was unchallenged.

[19] At first blush, Callguard may be seen to be on point and supportive of AMCU and Mr Mtshemla who was by anyone standard an advocate of workers’ rights performing his duties in the best tradition of unions’ calling. The decision to embark on the industrial action was not exclusively taken by AMCU and its members but on the applicant’s own version also by other unions and their members. However, upon closer scrutiny and in consideration of the facts, the applicant had in clear and specific terms located AMCU and the second respondent at the centre of the unlawful industrial action. AMCU as a majority union on the factory floor with massive collective bargaining power was accorded respect by the applicant company with a view to get its co-operation in the management and restoration of the grievance laid by its members.

[20] In my view AMCU failed to act responsibly and show leadership when circumstances demanded that it do so. When the applicant threatened court action and called upon her to reign in on its members who were at the forefront of the unlawful activities taking place in the company, AMCU was steadfast in its disregard for due process and went to an extent of disrupting the process which was a product of its struggle. The other two unions co-operated with the process and made their members available to testify in the enquiry. They did so despite the fact that unlike AMCU, they were not offered an opportunity to pick a chairperson of the enquiry. The extent of their blameworthy when considered against the available evidence pales into significance when compared with the central role played by AMCU. On the facts of this case AMCU was a victim on its own success and had clearly abused its majority by frustrating a legitimate process.

[21] When Zondo AJ (as he then was) cautioned against the Labour Court making costs orders against shop stewards and unions, he surely did not have in mind a situation where union officials and its members will threaten the stability and operations of the company in circumstances where the employer is co-operative and accommodative of the union and agree to investigate legitimate complaints by following a due process. I am fortified in my view by this qualification he made when he said: Although I am not prepared to say there can never be a case where it would be appropriate to grant costs order against shop stewards and not against their co-workers because of their specific role in a dispute, I think great care should be taken not to make such an order unless it was really a proper case… (at P391 D-E).

[22] In National Union of Mineworkers obo Violet Masha And Others v Samancor Limited (Eastern Chrome Mine)[9], Mhlantla J made the same point in the following words:

“The applicant’s role is to defend the rights of its members. It cannot be argued that challenging a dismissal alone justifies a costs order. Mulcting the applicant in costs in a labour matter where there is no finding of any untoward conduct on the part of the applicant is intolerable. The costs orders will have a chilling effect on the applicant and may deter it from fulfilling its duty to represent its members without fear of reprisal. This may affect its members’ right to access justice and thus, may infringe sections 23 and 34 of the Constitution. However, there may be instances where a costs order is warranted and in that case, reasons must be provided. (My emphasis).

[23] In the circumstance of this case, it cannot be gainsaid that the conduct of AMCU and its members were disruptive of the labour peace when an employer went out of her way to put in place dispute resolution mechanism to resolve a legitimate grievance. The fact that AMCU did not oppose the court application is a factor to consider and in my mind it does not tilt the scale in its favour. The same holds true with the argument that there is an on-going relationship between AMCU and the company. AMCU by its conduct and those of its members abused this relationship and left it hanging on the cliff. It is therefore disingenuous of AMCU to want to blackmail applicant with the importance of the relationship it has failed to nourish.

[24] In the exercise of my judicial discretion and guided by the noble principles of law and fairness, I am persuaded that a case has been made to depart from the norm that in labour matters costs do not follow the result. AMCU has made itself guilty of an egregious conduct inimical to the good social order expected of role players on the factory floor. By imposing a costs order against AMCU, this court is vindicating the rule of law which we are all bound to observe. To fail to do so will be to invite chaos and celebrate anarchy at the workplace all of which are against the values we hold dear as people.

[25] Advocate Hollander had urged me to consider that an attorney and own client is the most severe form of a cost order to impose against a litigant. He said it is reserved for worst cases where a litigant may have conducted herself dishonourably or conducted litigation in a frivolous and vexatious manner. In casu, AMCU did not oppose the proceedings but only the costs order. This should count in its favour, notwithstanding the events leading up to the court order. I agree. The issue which gave rise to the dispute were weighty and emotional to AMCU and its members and that may explain why the employees were clouded by emotions and failed to follow both logic and reason. I intend to limit my order against the union (AMCU) which represent Mr Mtshemla and its members employed by the applicant. It offends my sense of fairness to impose a costs order on both the union and its members when the union is not capable of carrying out its activities without the involvement of its members. At any rate I have been informed that some of the employees have been dismissed. Mr Mtshemla had post the court order exemplified leadership when he disowned the union members who defied the court order. It may have come too little too late but still it is a factor that weighs heavily with me.

[26] Consequently, it is ordered that the First respondent (AMCU) is liable to pay the applicant’s costs.

M. I. Mangena

Acting Judge of Labour Court of South Africa

Appearances:

For the Applicant: Adv.

L Malan SC

Instructed by: Bowman

Gilfillan Inc

For the 1st and 2nd Respondent: Adv. L Hollander

Instructed by: LDA

Incorporated Attorneys

[1] Act 66 of 1995

[2] (2014) 35 ILJ 2767 (LAC) at para 18

[3] (2012) 3 ILJ 998 (LC) at Para 14,

[4] (2016) 37 ILJ 246 at para 11

[5] (J 1239/13) [2014] ZA LCJHB 58 (25 February 2014) at para 35-40

[6] (2008) 29 ILJ 1707 (LAC) at para 19

[7] (CCT 192/20) [2021] ZACC 26 (7 September 2021)

[8] (1997) 18 ILJ 380 (LC)

[9] [2021] ZACC 16