Appolo Tyres (Pty) Ltd (Formerly Dunlop Tyres International) Ladysmith (Pty) Ltd v National Union of Metal Workers of South Africa (NUMSA) and Others (D162/09) [2009] ZALCD 2 (29 September 2009)

Appolo Tyres (Pty) Ltd (Formerly Dunlop Tyres International) Ladysmith (Pty) Ltd v National Union of Metal Workers of South Africa (NUMSA) and Others (D162/09) [2009] ZALCD 2 (29 September 2009)

The court held that, although the conduct of NUMSA and its members in embarking on an unprotected strike after being advised of its unlawfulness would ordinarily justify a costs order against them, broader considerations of fairness and the ongoing employment relationship must prevail. The court emphasized that awarding costs could undermine the conciliation process and damage the relationship-building efforts between the parties, particularly as the CCMA had appointed a facilitator to assist in resolving the dispute. The emotive and sensitive nature of the underlying issues, and the reliance by NUMSA on the certificate of outcome, further weighed against a punitive costs order....

Citation
[2009] ZALCD 2
Parties
Applicant: Appolo Tyres (Pty) Ltd (Formerly Dunlop Tyres International) Ladysmith (Pty) Ltd; Respondent: National Union of Metal Workers of South Africa (NUMSA); Respondent: Shadrack Sithole; Respondent: American Xaba; Respondent: Sifiso Mlambo; Respondent: Philani Khoza; Respondent: Bongani Zulu; Respondent: Musa Msimanga; Respondent: Alfred Mchunu; Respondent: Nhlanhla Madonsela; Respondent: Themba Ngubane; Respondent: Elliot Masimula; Respondent: Thokozane Dladla; Respondent: Nkosinathi Shandu; Respondent: Individual respondents set out in Annexure A
Court
Labour Court Durban
Jurisdiction
South Africa
Judgment Date
29 September 2009
Case Number
D162/09
Procedural Posture
Urgent Application / Application for Costs Following Urgent Interdict Proceedings
Outcome
No order as to costs is made.
Judges
Molahlehi
Legal Topics
Unprotected Strike, Costs Award, Section 189a Facilitation, Collective Bargaining, Strike Interdict
Labour Law Civil Procedure Unprotected Strike Costs Award Section 189a Facilitation Collective Bargaining Strike Interdict

Case Brief

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Parties

Appolo Tyres (Pty) Ltd (Formerly Dunlop Tyres International) Ladysmith (Pty) Ltd

Applicant

National Union of Metal Workers of South Africa (NUMSA)

Respondent

Shadrack Sithole

Respondent

American Xaba

Respondent

Sifiso Mlambo

Respondent

Philani Khoza

Respondent

Bongani Zulu

Respondent

Musa Msimanga

Respondent

Alfred Mchunu

Respondent

Nhlanhla Madonsela

Respondent

Themba Ngubane

Respondent

Elliot Masimula

Respondent

Thokozane Dladla

Respondent

Nkosinathi Shandu

Respondent

Individual respondents set out in Annexure A

Respondent

Procedural Posture

Urgent Application / Application for Costs Following Urgent Interdict Proceedings

Legal Issues

  1. 1 Whether the respondents' strike action was unprotected and unlawful.
  2. 2 Whether the applicant is entitled to a costs order against the respondents following the urgent interdict.
  3. 3 Whether the certificate of outcome issued by the CCMA provided a lawful basis for industrial action.

Ratio Decidendi

The court held that, although the conduct of NUMSA and its members in embarking on an unprotected strike after being advised of its unlawfulness would ordinarily justify a costs order against them, broader considerations of fairness and the ongoing employment relationship must prevail. The court emphasized that awarding costs could undermine the conciliation process and damage the relationship-building efforts between the parties, particularly as the CCMA had appointed a facilitator to assist in resolving the dispute. The emotive and sensitive nature of the underlying issues, and the reliance by NUMSA on the certificate of outcome, further weighed against a punitive costs order....

Court Disposition

No order as to costs is made.

Orders

  • No order as to costs.