---

IN THE LABOUR COURT OF SOUTH AFRICA

(HELD AT BRAAMFONTEIN)

JS 693/00

ROBERT MALULEKE & OTHERS APPLICANTS

AND

JOHNSON TILES (PTY) LTD RESPONDENT

JUDGEMENT

AC BASSON, J

1. The three Applicants Mr. Robert Malulele, Mr. Dominic Kubhayi, Mr. David Manyike and Mr. Philemon Gabeni (hereinafter collectively referred to as the Applicants) filed a statement of claim on 25 February 2000 claiming that they were unfairly retrenched (both substantively and procedurally). They claim reinstatement and compensation. The individual Applicants were since the inception of this dispute and throughout all the relevant proceedings represented by Mr. Luthuli of THE United Peoples Union of South Africa (hereinafter “UPUSA”).

2. On 20 March 2000 the Respondent filed its answer to the Applicants’ statement of claim setting out in detail the reasons for and the process that was followed during the retrenchment exercise which led to the dismissal of the individual Applicants. On 3 May 2000, UPUSA obo the individual Applicants filed an amendment in terms of which Mr. Gabeni was removed as an applicant.

3. The Respondent commenced leading evidence whereafter the evidence of Mr. Maluleke (hereinafter referred to as “Maluleke”) was led on behalf of the Applicants. The parties thereafter held an inspection in loco at the site of the Respondent’s factory in Olifantsfontein (see paragraph [15] et seq).

BACKGROUND

4. Johnson Tiles (Pty) Ltd (also hereinafter referred to as “the Respondent”) is involved in the manufacturing and production of ceramic tiles and has its manufacturing plant in Olifantsfontein. It was the Respondent’s case, though the evidence of Mr. Lansdell, the Manufacturing Director, (who has been employed since 1992 and who was at all material times, particularly during the period October to 15 December 1999, in that position) that the Respondent had during 1999 suffered a major down-turn in profitability as a result of the fact that the Respondent could no longer compete in the wall tile market simply because extremely low cost imported tiles became increasingly available in South Africa. At that time, these imported tiles retailed for less than it cost the Respondent to manufacture such a tile. This fact also impacted negatively on the distribution network of the Respondent simply because independent retailers preferred the cheaper competitive product over the Respondent’s products. It was also found that the traditional plant which the Respondent used to manufacture its wall tiles was outdated anD inefficient. As a result of the aforegoing problems, in consultation with the principal shareholders in the United Kingdom, the Respondent’s management took a decision to upgrade its Bicottura manufacturing facility by installing a highly sophisticated and mechanized production line and to close down the traditional plant completely.

RECOGNISED BARGAINING AGENT

5. Landsdell testified that BCAWU represented some 80% of the employees in the bargaining unit and UPUSA (of which the Applicants were members and of which Maluleke was a shopsteward) represented no more than 2% of the employees in the bargaining unit. BCAWU was also the recognised trade union. The Respondent had concluded a recognition agreement with the Respondent as far back as 14 October 1985. In addition hereto, the Respondent had also concluded an agency shop agreement with BCAWU. The Applicants had not registered their status as conscientious objectors to participation in the Agency shop agreement. As a result of the aforementioned agreements, the Respondent and BCAWU bargained collectively. BCAWU also bargaining collectively with the Respondent on behalf of all the employees in the bargaining unit including the UPUSA members.

RETRENCHMENT PROCESS

6. Because the entire traditional plant (where the individual Applicants worked) was to be closed, all employees employed in that plant became redundant. After a decision was taken to close the traditional plant, the Respondent embarked on a process in terms of which all employees who would potentially be affected by the closure of the traditional plant were notified. This the Respondent did by posting notices on notice boards at the plant and by attaching copies of such notices to the payslips of the individual Applicants. It was, however, put to Lansdell that no notices had been displayed on the notice boards nor was any notices affixed to the Applicants’ payslips. Landsdell was, however, adamant that such notice were indeed posted.

7. Relevant notices in terms of section 189 of the LRA were also issued. The Respondent thereafter commenced a process of consultation with BCAWU. It is important to point out that in the notices displayed and attached to the payslips of the individual employees, all employees were advised that should they have any inquiries, they were to approach management individually. The Applicants did not avail themselves of these invitations. Furthermore, a notice was also issued in terms of which all other unions (UPUSA and CAWU) were invited to a report back meeting on Saturday 13 November 1999: “All union members BCAWU/CAWU/UPUSA are invited to attend the general meeting to be held on 13/11/99 report!” Neither UPUSA nor the individual Applicants attended.

8. From the evidence and documents placed before the Court it appears that all consultations with BCAWU were minuted. From these minutes it is clear that all relevant topics in respect of the retrenchment exercise, and as required by law, were discussed with the union (BCAWU). It was also specifically agreed to during the consultation meetings that the selection criteria to be applied were to be primary key skills and education levels and only thereafter LIFO. With reference to the agreed key skills criteria, Lansdell testified that the Applicants did not fall within any of the key skills positions identified. Furthermore, because none of the Applicants met the required educational standard which was agreed upon (standard 7), the Applicants were dismissed purely on application of the LIFO principle. Lansdell testified that to facilitate the application of the agreed criteria, the Respondent had conducted an extensive exercise whereby all the potentially affected employees were listed and their key skills, educational levels and LIFO qualification identified. Mr. Luthuli on behalf of the individual applicants questioned this process whereby the employees’ details were recorded for purposes of the retrenchment exercise. Lansdell testified that the Applicants’ details were recorded from the personnel files. Mr. Luthuli put it to Lansdell that the Respondent ought to have consulted the affected employees themselves to determine their skills and education levels. It was further put to Lansdell that the Respondent fabricated the records. Mr. Luthuli further put it to Lansdell that the Applicants in fact had no knowledge of the ongoing consultations and impending retrenchments save for rumors overheard in taxis and that it was on that basis that the Applicants had approached UPUSA to assist them. The evidence on behalf of the Applicants were that they were simply out of the blue approached by a supervisor on the day of their dismissal and told that they were retrenched and that they were no longer working for the Respondent. It was therefore the case for the Applicants that they were not retrenched but merely unfairly dismissed without notice on 15 December 1999.

9. On 26 November 1999, the Respondent and BCAWU concluded a written retrenchment agreement. This agreement incorporated all the prior minutes of the consultation meetings. This agreement also records that the process was lawful and delineates the ambit of the actual retrenchment. This agreement specifically records that the traditional plant would be closed with effect from 15 December 1999 and that the consultation and negotiation regarding the redundancy and severance benefits were done in accordance with section 189 of the LRA and the current Redundancy and Retrenchment Agreement. Clause 11 of the Recognition agreement (between BCAWU and the Respondent) which includes Annexure D (the Redundancy and Retrenchment Policy and Procedure). It is clear from this agreement that the Respondent is required to consult with BCAWU not only as the majority union but also as the recognised union in the event of a retrenchment. Annexure D sets out in great detail the process that must be followed in the event of a retrenchment. In terms of the agreement, it was agreed that some 165 employees were to be retrenched across the board. It should be noted that some of the identified employees included members of management, other monthly paid employed outside the bargaining unit and also a few weekly paid employees who were also not part of the bargaining unit. Retrenchees were therefore selected from the Respondent’s entire operation. The Applicants’ case was that they ought not to have been retrenched because there were employees with lesser service who were not retrenched. On this point it should be pointed out that length of service was but one of the criteria applied by the Respondent and that other agreed selection criteria were also applied. Maluleke, who was a forklift driver, testified that he did not receive any notices; that LIFO should have been applied; he was never before 15 December 1999 informed of the impending retrenchment; that he was never consulted and in any event that he was not bound by the consultation process engaged upon between the Respondent and BCAWU. Maluleke further testified that the rest of the retrenchees were subsequently re-employed and that it was only the Applicants that were left out. Maluleke also testified that there was a conspiracy between the Respondent’s attorneys which was boulstered by the Respondent’s council, to get rid of the four Applicants. More startling was Maluleke’s evidence that the traditional plant was actually still in existence and that it was not demolished and that it was still operating. This evidence of Maluleke is, however, completely discredited by the observations that were made during the inspection in loco (see paragraph [15 ] infra for a summary of the inspection in loco).

10. Landsdell testified that the Respondent did not consult with either UPUSA or CAWU in light of the fact that a collective agreement was concluded with BCAWU in terms of which BCAWU was recognised as the bargaining agent. Furthermore, an agency shop agreement concluded with BCAWU was also in place.

11. Landsdell confirmed that letters were received from UPUSA prior to the actual retrenchment and that these letters were forwarded to the Respondent’s attorneys and responded to. UPUSA was advised by the Respondent’s attorneys as far back as 1999 that the Respondent was not in law obliged to engage directly with UPUSA particularly in respect of the retrenchment exercise. It was, however, submitted on behalf of the Applicants that the Respondent was obliged to consult with UPUSA and/or the individual Applicants notwithstanding the fact that there was a recognition agreement and an agency shop in place in terms of which BACAWU was recognised as the bargaining agent. On this point it should be pointed out that the Respondent, as far back as 20 March 2000, had stated in its reply to the Applicants’ statement of claim, that the Respondent had no legal obligation to consult with UPUSA in light of the recognition agreement and the fact that this agreement required that the Respondent consult with BCAWU in the event of a retrenchment. This is relevant in respect of costs and I will return to this point hereinbelow. It is also relevant to point out that the Applicants’ statement of claim was filed by Mr. Luthuli of UPUSA on behalf of the individual Applicants.

REASON FOR THE RETRENCHMENT

12. Reference was already made to the fact that it was the Respondent’s case that the traditional plant had to be closed down for financial reasons (see paragraph 4 supra). Landsdell also tendered to the Court, at the insistence of Mr. Luthuli, management accounts and audited accounts which clearly support the Respondent’s poor financial position prior to the retrenchment exercise. Compared to the financial position post the retrenchment process, it is clear that the decision to close down the traditional plant had the desired financial effect. It furthermore became clear from the inspection in loco that the traditional plant was not only closed down but that it was completely demolished. The photographic evidence clearly confirmed the extensive process of demolition.

13. The effective date of the retrenchment was 15 December 1999. On that date the traditional plant was also effectively shut down. Although 165 employees were retrenched, the Applicants were the only employees who had referred a dispute concerning the retrenchment to the CCMA. It was put to Lansdell that there were no redundancies because as at 15 December 1999, the individual Applicants were working normally and the plant was productive as usual. It was thus put to Lansdell that there was no real commercial rationale for the retrenchment simply because the plant was in fact still operating. As already pointed out, it was clear from the inspection in loco that the traditional plant no longer existed and that it was in fact demolished soon after its closure.

14. I am satisfied on the evidence that there was a valid and fair reason for the retrenchment. This is patently clear from the evidence that was presented to this Court which consisted of the evidence of Landsdell (which could not be disputed in light of the fact that neither UPUSA nor the individual Applicants ever attended any of the consultation meetings or feedback meetings); the financial statements submitted by Landsdell; the minutes of the consultation meetings; the retrenchment agreement concluded with BCAWU and the inspection in loco which confirmed that the traditional plant no longer existed.

THE INSPECTION IN LOCO

15. The inspection in loco was not attended by Mr. Luthuli who was the representative of the Applicants. The individual applicants however expressly agreed that the inspection continue.

16. The issue to be resolved from the inspection in loco was whether the traditional wall tile manufacturing plant (“the traditional plant”) which the Respondent had operated prior to its shutdown on 15 December 1999 and which, according to the Respondent, had led to the retrenchment of the Applicants, had in fact been demolished or not. It was patently clear from the inspection that it was. During the inspection in loco a bundle of photographs demonstrating the demolition process was also handed into evidence. It is patently clear from the photos that the entire plant was demolished by heavy duty machinery and that absolutely nothing was left of the traditional plant after the completion of the demolition. It is, in my view, totally incomprehensible how the individual Applicants could allege that the traditional plant was not demolished and that it was still in operation.

17. I have already referred to the fact that it was the Applicants’ case that the plant was still in existence and that the whole retrenchment was a conspiracy.

18. The inspection in loco revealed that the traditional plant had in fact been demolished and that it was replaced with a warehousing facility for TAL Adhesives which, until 2006, had been a separate and distinct company from the Respondent. During the course of the inspection Maluleke also, for the first time, indicated that he was actually never employed by the traditional plant but that he was actually employed in the adjacent Bicotura plant which was a highly mechanized plant and which, at the time of the inspection was attended only by a handful of employees. The evidence to the effect that Maluleke was actually employed in the Bicottura plant also only submerged after the Applicants were confronted with the indisputable fact that the traditional plant had in fact been demolished. Maluleke’s new version is also completely contradictory to his earlier evidence that he was still working in the traditional plant as usual on the 15^th of December 1999 when he was suddenly to his utmost surprise informed that they were retrenched.

LEGAL POSITION

19. The Respondent’s case was in essence that there was no legal obligation to consult with any trade union except BCAWU with which it had concluded a recognition agreement. It was further the Respondent’s case that it did in fact, by issuing notices which were attached to the individual employees’ payslips and by displaying the notices on the various notice boards, invited all individual employees, including the Applicants, to approach management and to take part in the consultation process.

CAN AN EMPLOYER ONLY CONSULT WITH A MAJORITY UNION IN RESPECT OF A RETRENCHMENT?

20. Mr. Luthuli submitted that the Respondent was obliged to consult with the applicants individually and that this failure constituted an unfair retrenchment. He further submitted that the collective agreement had nothing to do with the individual Applicants as they were not members of BCAWU. In support of this argument, Mr. Luthuli referred to paragraph 2.3 of the agency shop agreement in terms of which it is specifically stated that the affected employees will not become members of BCAWU as a result of the deduction of the agency fee. It is clear from the argument that Mr. Luthuli misses the point completely. An Agency Shop agreement is defined in section 25(1) of the LRA as follows: “[a] representative trade union and an employer or employers’ organization may conclude a collective agreement, to be know as an agency shop agreement, requiring the employer to deduct an agreed agency fee from the wags of employees identified in the agreement who are not members of the trade union but are eligible for membership thereto.” The reason why the LRA has provided for these types of agreements is to provide for those instances where employees who are not members of a trade union will be bound by the provisions of an agreement entered into by the majority union. The authors in Basson et al Essential Labour Law 4^th edition 2005 at 263 states as follows: “In other circumstances an employer may, in the interest of administrative convenience, extend the provisions of a collective agreement to non-union members. In effect, employees who are not members of a union may derive benefits from a collective agreement entered into by a union”. Because these employees, also referred to as the so-called “free-riders” often derive benefits for free which is the result of the collective bargaining efforts of the majority trade union, they are compelled in terms of an agency shop agreement to contribute financially to the efforts of the majority trade union. It is trite that these free-riders do not, however, become members of the majority trade union. Where Mr. Luthuli misses the point is that it does not matter whether or not the individual applicants were members of the trade union. It is accepted that they were not members of BCAWU. They, however, still benefited from the collective bargaining effort of BCAWU. The evidence of Landsdell (which is supported by a letter written to Maluleke dated 31 March 1998) was that Maluleke had received wage increase even though he was not a member of BCAWU and which resulted from the wage agreement concluded with BCAWU (with which the Respondent has a recognition agreement). The question in the present case is whether or not the Respondent was obliged to consult on the proposed retrenchment with UPUSA and/or the individual Applicants (all of whom are members of UPUSA) in circumstances where there is a collective agreement in terms of which BCAWU is recognized and in terms of which the Respondent is obliged to consult in the event of a retrenchment.

21. Section 189(1)(a) – (d) sets out the hierarchy governing the consultation process. This section reads as follows:

“(1) When an employer contemplates dismissing one or more employees for reasons based on the employer's operational requirements, the employer must consult-

(a) any person whom the employer is required to consult in terms of a collective agreement;

(b) if there is no collective agreement that requires consultation-

(i) a workplace forum, if the employees likely to be affected by the proposed dismissals are employed in a workplace in respect of which there is a workplace forum; and

(ii) any registered trade union whose members are likely to be affected by the proposed dismissals;

(c) if there is no workplace forum in the workplace in which the employees likely to be affected by the proposed dismissals are employed, any registered trade union whose members are likely to be affected by the proposed dismissals; or

(d) if there is no such trade union, the employees likely to be affected by the proposed dismissals or their representatives nominated for that purpose.”

22. During 1999 when the consultations in this case took place, section 189(1) of the LRA also contained a hierarchy similar to the one contained after the 2002 amendments. The only material difference between the 1999 amendment and the 2002 amendment is that pursuant to the 2002 amendment, section 189(1)(b)(ii) of the LRA now requires that an employer must also consult with “any registered trade union whose members are likely to be affected by the proposed dismissal” where there is no collective agreement that requires consultation.

23. On behalf of the Respondent it was submitted that, because the collective agreement that was concluded complies with section 23(1)(d) of the LRA, the Applicants were covered and bounded by the collective agreement that was concluded between the Respondent and BCAWU. In terms of section 23(1)(d) employees who are not members of a trade union will be party to a collective agreement if (i) the employees are identified in the agreement; (ii) the agreement expressly binds the employees; and (iii) the trade union party to the collective agreement holds the majority membership of employees in the workplace.

24. In addition to the fact that there is an existing collective agreement, there is also an agency shop agreement. The evidence of Landsdell to the effect that clause 2 was complied with on a monthly basis further constitutes compliance with the provisions of section 23 of the LRA referred to in the previous paragraph. Furthermore, it was submitted that insofar as the Agency Shop Agreement incorporates the Recognition agreement, the minority is bound by the decisions of BCAWU pursuant to the Agency Shop Agreement. Mr Tiederman for the Respondent argued that it can never be said, in fairness, that the minority union can accept all the benefits of the work of the majority union engaging in collective bargaining with the Respondent in terms of the agency shop agreement such as for example increases in wages and favourable changes to terms and conditions of employment, yet to seek to approbate the result of the majority recognised union’s efforts in collective bargaining.

25. In Sikhosana & Others v Sasol Synthetics Fuels [1999] JOL 5648 (LC), a case in which Mr. Luthuli was a representative for the Applicants, the Respondent’s case was that it only needed to consult with majority unions in terms of section 189(1) of the LRA during a retrenchment exercise. In that particular case the employer had also concluded a collective agreement with a union (CWIU) in terms of which CWIU was recognised. Two other unions were also recognized and the employer consulted with all three unions in respect of the proposed retrenchment. The Court had to consider a similar question and that was whether or not the employer had to consult with UPUSA (which represented the Applicants in that case and a minority union). The Court pointed out that –

“[f]our levels of consultation are set out but the section goes out of its way to stress that only one can be applicable. It does this by making each duty except to fist condition on the inapplicability of its predecessors: paragraph (d) can apply only if (a) (b) and (c) are not, (c) becomes applicable only if (a) and (b) are not, and so on.

It is impossible to believe that this hierarchy of obligations is anything but intentional: care has too obviously been taken in the choice of language to permit the conditional clauses to be dismissed as mere rhetorical flourishes. The interpreter is driven to the conclusion, therefore, that an employer, to satisfy her obligations under the subsection, need only consult the employees likely to be affected by the proposed dismissals (or their representatives) if there is no registered union whose members are likely to be affected by the dismissal, no workplace forum in the workplace in which the dismissal might occur and no collective agreement governing consultation. The union, in turn, need be consulted only if there is no such workplace forum and no such collective agreement, and so on up the ladder. …Section 189(1) quite deliberately renounces dual consultation in favour of the single level of consultation for which it provides.” (At page 9 – 10.)

26. The Court in Mahlinza & Others v Zulu Nyala Game Ranch (Pty) Ltd [2004] JOL 12459 (LC) at page 3 confirmed that it is only where there is no collective agreement in existence which regulates consultations in respect of a retrenchment, that the employer is under an obligation to consult with another registered union or individual employees:

“[13] In this regard, section 189(1) of the Labour Relations Act sets out with whom an employer must consult concerning retrenchments. In this matter there is no evidence of a workplace forum in the workplace and the only thing thaw old excuse the respondent from consulting with SACCAWU, a registered trade union which, to the knowledge of the respondent had members in its workforce, is the existence of a collective agreement requiring the respondent to consult with the other party to the collective agreement about retrenchments. There is not such collective agreement. What the respondent relied upon was the agency shop agreement that it had concluded with NUFACE but that collective agreement imposes no obligation on the respondent to consult NUFACE about retrenchments.

[14] For all of the above reasons the respondent was therefore obliged to consult SACTWU or at least the individual applicants about their retrenchment. It did neither and the respondent’s whole case falls into a vacuum.”

27. It is therefore concluded that where an employer (and more in particular the Respondent in this case) consults, in terms of agreed procedures with the recognised union (BCAWU) in terms of a collective agreement which requires the Respondent to consult with it over retrenchment, the employer (in this case the Respondent) has no obligation in law to consult with any other union nor with any individual employee. This is what happened in this case. Furthermore, if the consultations culminate in a collective agreement which agreement complies with the requirements of a collective agreement, non-union members are bound by the terms thereof. This is exactly what happened in this case.

28. In the event, it is concluded that not only was the retrenchment of the individual Applicants substantively fair but also procedurally fair.

COSTS

29. In terms of section 162 the Labour Court may make an order for payment of costs, according to the requirements of the law and fairness. When deciding whether or not to order costs, the labour Court may take into account, inter alia, the conduct of the parties in proceeding with or defending the matter before the Court and during the proceedings before this Court. The Labour Court may also make an order for costs against a party to the dispute or against any person, who represented that party in those proceedings before this Court. Section 161 provides that “in any proceedings before the Labour Court, a party to the proceedings may appear in person or be represented only by a legal practitioner, a co-employee or by a member, an office-bearer or official of that party’s trade union or employers’ organisation and, if the party is a juristic person, by a director or an employee”.

30. In Moloi & Another v Euijen & Another (1999) 20 ILJ 2829 (LAC) the Labour Appeal Court pointed out that under normal circumstances the only basis upon which an order for costs may be granted against a union that is not a party to an action or application is where such costs are awarded de bonis propriis. In this case reference is made to those instances where a union abuses the Court’s processes through employees in cases which are in reality being fought for or on behalf of the union. The present case is, however, different. Although it is difficult to understand why Mr. Luthuli on behalf of UPUSA advised his members to proceed with this case in circumstances where it should have been patently clear that there is no case and where the legal principles involved are clearly against the Applicants, the fact of the matter is that Mr. Luthuli has been assisting the individual applicants in his representative capacity. The union (UPUSA) is thus not a party to the proceedings. Mr. Luthuli interceded on behalf of the dismissed workers. This distinction is important to draw as it has consequences in respect of a cost order.¹

31. In considering a cost order, the well-established principle is that when making an order of costs, considerations of law and fairness are equally important. Several factors may be considered including but not limited to the manner in which a party permitted by statute to represent a party behaves or conducts itself. It is also trite that certain types of behaviour may even justify a costs order de bonis propriis.²

32. In respect of costs, it was argued on behalf of the Respondent that an order on the attorney own client scale de bonis propriis against UPUSA is warranted in light of the scurrilous allegations advanced by both Mr. Luthuli in respect of the fabrication of records and Mr Maluleke as to the conspiracy and continued existence of the traditional plant which led to a time waste particularly in respect of the inspection in loco. Furthermore, in a letter dated 6 November 2007, Mr Luthuli was specifically forewarned that the Respondent will be seeking a punitive costs order against Mr. Luthuli himself in light of the fact that Mr. Luthuli is acutely aware of the fact, having been the representative in an Industrial Court case UPUSA obo R Maluleke and 6 Others v Johnson Tiles (Pty) Ltd NH 11/2/19687. In this case the Industrial Court found that the Respondent was not obliged to either recognise or negotiate with UPUSA, an unrecognized union which did not have (and never has had) majority representation particular where another union representing the majority had been granted recognition and bargaining rights. Mr. Luthuli was furthermore specifically forewarned that the cost order on an attorney own client scale de bonis propriis will be sought against UPUSA.

33. It is clear from the Applicants’ statement of claim that it was their case that not only was there no reason for the retrenchment but also that the employees were simply interrupted whilst busy working (paragraph 2.12 of the statement of claim) and that the retrenchment was unfair because the Respondent did not consult with UPUSA whilst it (the Respondent) knew that the individual Applicants were members of UPUSA (paragraph 2.11 of the statement of claim). In its reply to the statement of claim, the Respondent in great detail sets out that a recognition agreement was concluded with BCAWU and that the Respondent had no legal obligation to consult with UPUSA. Notwithstanding this and notwithstanding the fact that Mr. Luthuli knew what the legal position is, he persisted with the case against the Respondent.

34. It is also necessary to point out that the averment was made that the Applicants were completely surprised when they were told on 15 December 1999 that the plant was going to close (paragraph 2.8 of the statement of claim). However, if a letter dated 20 November 1999 (which is almost a month before the retrenchment) from Mr. Luthuli to the Respondent is perused the following appears: Mr. Luthuli specifically identifies the Applicants by name in this letter and states: “We have been instructed to act on behalf of our members, who are appointed to be retrenched. Their names are as follows: Robert Maluleka, Philemon Gabeni, Donald Mmboyi, Nelson Mafahla, Egnes Nxumalo, David Manyike and Student Magabeni, Dominic Khubai... I therefore propose the 26 November 1999 at 11:00 to meet with your management, failing which UPUSA still be forced to refer the matter to the Labour Court…” What is patently clear from this letter is that Mr. Luthuli as the representative of the individual Applicants, knew as early as 20 November 1999 that the individual Applicants may be retrenched. Yet, in the statement of case and it was also put to Lansdell, the Applicants were not aware of the retrenchment until 15 December when they were allegedly told to leave. Mr. Luthuli was furthermore advised by the Respondent’s attorney as far back as 26 November 1999 that there was no obligation to consult with UPUSA. Mr. Luthuli was referred to relevant case law (and a case in which Mr. Luthuli was personally involved in), which supports the fact that the Respondent was under no obligation to consult with UPUSA. This Court can come to no other conclusion namely that Mr. Luthuli’s conduct in representing the Applicants was unacceptable. As a result of this conduct the Respondent in this matter had to defend a completely ill-founded case.

35. In light of the aforegoing I am of the view that the conduct of Mr. Luthuli in his representative capacity as an official of UPUSA warrants a cost order being made against UPUSA. In respect of the scale I am of the view that a punitive cost order is warranted for the reasons set out above.

36. In the event the following order is made:

1. The dismissal of the individual Applicants are both substantively and procedurally fair.

2. The claim for unfair dismissal is hereby dismissed.

3. The individual applicants and United People’s Union of South Africa are ordered to pay jointly and severally the costs of the Respondent, the one paying absolving the other, such costs being at the scale of attorney client.

AC BASSON, J

For the Applicants:

Mr E Luthuli: UPUSA

For the Respondent:

Mr. Tiederman instructed by Edward, Nathan, Sonnenberg.

Date of judgment: 18 April 2008

---