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Basebi and Others v Puma Botswana (Pty) Ltd (IC. F121/06) [2006] BWIC 18; [2006] 1 BLR 662 (2 June 2006)

MMB Advocates > Uncategorized  > Basebi and Others v Puma Botswana (Pty) Ltd (IC. F121/06) [2006] BWIC 18; [2006] 1 BLR 662 (2 June 2006)

Basebi and Others v Puma Botswana (Pty) Ltd (IC. F121/06) [2006] BWIC 18; [2006] 1 BLR 662 (2 June 2006)




IN THE INDUSTRIAL
COURT OF BOTSWANA

HELD AT FRANCISTOWN

CASE NO. IC. F121/06

IN THE DISPUTE
BETWEEN:

BUTI
BASEBI & 45 OTHERS ……………………….
APPLICANTS

AND

PUMA
BOTSWANA (PTY) LTD ………………………. RESPONDENT

___________________________________________________________

CONSTITUTION OF THE COURT

M. EBRAHIM-CARSTENS INDUSTRIAL
COURT JUDGE

T.E.K PHEKO
NOMINATED MEMBER (UNION)

B.S. TSAYANG NOMINATED
MEMBER (BOCCIM)

FOR THE APPLICANT

MR. S. MANDEVU FAST BEAT LABOUR RELATIONS

CONSULTANTS

FOR RESPONDENT

MR. S. THAPELO
S. THAPELO ATTORNEYS

PLACE AND DATE OF PROCEEDINGS

FRANCISTOWN
31ST MAY 2006

Urgent application – whether applicants satisfying
requirements of Section 20(5) of the Trade Disputes Act-whether
reading of section
20(5) means that urgent application not possible
once matter has been mediated

RULING

[1] The
applicants in this case moved an urgent application for an order in
the following terms:

1. That a Declaratory be and
is hereby issued that the lock out of the Applicants by the
Respondent is unlawful and constitutes unfair
practice.

2. That the Respondent should
reinstate the Applicants to their positions.

3. That the 1st
Respondent should pay to the Applicants wages that was due to the
Applicants had they not been locked out.

4. That the Respondent should
address the grievances raised by the Applicants, being:

Wage increase

Lack of protective clothing

The locking of the factory
during working hours while employees are on duty.

OR

5. That if the Respondent has
terminated the Applicants’ contract of employment, the termination is
unlawful.

6. That the Applicants are
entitled to some compensation for the unlawful termination of their
employment contracts.

7. That the Applicants be paid
compensation equivalent to three (3) months salary as compensation
for unlawful termination and fortnight
wages as notice.

8. That the Respondent pay the
Applicants all their terminal benefits, i.e., a fortnight salary as
notice, all outstanding overtime,
leave accrued but not taken and
hours worked up to the day of the lockout.

And further take notice the
Affidavit of one of the Applicants signed by
Buti
Basebi
hereto shall
be used in support of this application…………………

[2] The brief founding affidavit
of Buti Basebi deposes to the effect that the applicants raised some
grievances on 13th March 2006 regarding wages, lack of
protective clothing, and being locked in during working hours. He
alleges that management failed
to address their grievances and
instead locked them out of the factory on 27th March 2006.
The matter was referred to the Labour Officer and a mediation hearing
was held on 6th April 2006. The Mediator found that the
respondent failed to follow the procedures for a lock out under the
Trade Disputes Act. In
his affidavit, Buti Basebi submits that this
matter is urgent for the following reasons:

3.1
The Respondent has locked us out of the factory thus leaving us not
clear as of our contractual status. Whether we are still
employees
of the Respondent or not.

3.2 Should this lock out
continue, we stand a chance to loose on production time thus may
lead to retrenchments.

3.2.1 If the Respondent has
closed business as the Personnel Manager has stated at the hearing,
we may loose on our terminal benefits
and wages worked for, or fail
to trace the whereabouts of the Directors as they have another
branch of the company operating in
Zimbabwe……………….

[3] Unlike the Applicants’
factually scant papers, the Respondent’s account of events is
extremely detailed. In his answering affidavit,
the Respondent’s
Director Michael Taylor Paxton, denies a ‘lock out’ and deposes that
the Applicants were dismissed en masse on 29th
March 2006 following a strike which the Applicants continued
throughout the 27th March 2006, despite meetings with the
worker’s committee and the advices of Mr. Moathodi and Ms. Modiga
of the Francistown District
Labour Office that the strike was
illegal. Prior to the intervention of the Labour Officers, the police
were called in to prevent
violence. He deposes further that on the
morning of 28th March 2006, the Applicants were informed
of the Respondent’s decision to take disciplinary action against them
individually for their
participation in the illegal strike. The
Applicants insisted they be dealt with as a group, this making it
impossible for management
to conduct any disciplinary hearings. The
Applicants were all summarily dismissed by letters addressed
individually on 29th March 2006, and handed their terminal
payments which they signed for. These documents are all appended to
his affidavit and have
not been disputed.

[4] In his affidavit, Paxton
reasons that the factory was closed as there was clear and imminent
danger of the Applicants disrupting
operations and since it was
impractical to operate with the remaining number of staff. The
Applicants immediately registered a dispute
of unfair dismissal with
the labour office claiming notice pay and compensation.

[5] The sole issue before the
mediator being unfair/ unlawful dismissal, it is contended by
Respondent that the issue of ‘lock out’
only surfaced following the
intervention of mediator Ms. I. Tafa at the mediation hearing of 5
th
April 2006. It is further alleged that the mediator was biased and
should have recused herself from the matter, as she is the sister
to
one of the Applicants, Ms. Tshekiso Tahla.

[6] I have set out at length
the facts above as deposed to by the Respondent to give a clearer
background to this matter since the
founding affidavit filed on
behalf of the applicants leaves much to be desired. Besides, the
applicants failed to file any papers
in reply to the respondent’s
answering papers. When the court enquired about the absence of any
replying papers, Mr. Mandevu stated
that the matter had already been
set down when the opposing papers were filed. The record shows this
to be factually incorrect.
Respondent’s papers were filed on 20
th
April 2006 within a week of receiving the application; whilst the
notice of set down was issued on 2
nd
May 2006. The applicants had more than adequate time to file replying
papers, but failed to do so. Moreover, in urgent applications
the
Court will more often than not, accept papers filed out of time. When
this matter came before me therefore, the Respondent’s
affidavits
stood undi
sputed.

[7] At the commencement of the
hearing of the application, Mr Thapelo
advised
that the business was running and 26 of the applicants were
re-employed by the respondent. Mr Mandevu confirmed this but stated
that these new contracts for the 26 applicants were only for a short
period of six months and that his instructions were to press
on with
the application despite these new developments.

[8] Mr Thapelo raised
a
point in limine that
the applicants had failed to comply with the requirements of Section
20(5) of the Trade Disputes Act in that
they had failed to set forth
the circumstances which rendered the matter urgent, and the reasons
why they could not be afforded substantial
redress at a mediation by
the Commissioner in due course; notice of which he had filed on 24
th
May 2006.

The Law Regarding Urgent
Applications

[9] I must admit to having
several reservations with the nature of the Order sought by the
applicants, but that is overtaken by the
point in limine raised and I
will say no more about the former aspect of the matter. Section 20
of the Trade Disputes Act deals
with applications generally and in
particular:

20. (3) Notwithstanding the provisions of Section 6,
7, 8 and 9, a party to a trade dispute may make an urgent application
to the
Court for the determination of a trade dispute.

(4) An urgent application under Subsection (3) shall be
brought on notice of motion supported by an affidavit as to the facts
upon
which the applicant relies for relief.

(5) The applicant shall set forth, in the affidavit,
explicitly the circumstances which he avers render the matter urgent
and the
reasons why he claims that he could not be afforded
substantial redress at a mediation by the Commissioner in due
course.”

[10] Urgent applications are no
ordinary remedy and parties moving same must come to court in good
faith, making full disclosure of
the facts upon which they rely for
relief. Section 20(5) enjoins an applicant who brings an urgent
application to set forth (1) the
circumstances which he avers render
the matter urgent, and (2) the reasons why he claims he could not be
afforded substantial redress
at mediation by the Commissioner in due
course. It is trite law that both limbs of Section 20(5) above must
be satisfied.

The Circumstances Which
Render The Matter Urgent

[11] The only grounds for
urgency before the court are those contained in Basebi’s affidavit.
However, appended to the court bundle
was a separate unnumbered
application for urgency in the matter of Bareki Evans & 10 Others
against the same respondent supported
by various affidavits, and
filed more than a month after the original application currently
before me. Mr Mandevu alleged that one
of the registry staff had
indicated to him, after allegedly confirming with the Registrar, that
the two applications could be consolidated.
This matter was not
allocated any case number, had not been set down, and was not
supported by any application for consolidation.
Even the cause of
action is not the same as that of the applicants currently before me.
Mr Thapelo indicated that he had only recently
been served with these
papers. In the circumstances I directed at the outset that this
matter of these 11 other employees was not
properly before me and
would be disregarded in so far as the current application was
concerned.

[12] I have already set out the
sole reasons for urgency advanced by the applicants at paragraph 2 of
this ruling. Regarding the reason
advanced at paragraph 3.1 of
Basebi’s affidavit, I find that it is unnecessary at this stage to
come to a conclusion on whether
the applicants were locked out or
not. What is material is the fact that the applicants originally
registered a dispute of unfair
dismissal. They knew full well their
contractual status, that they had been dismissed, but failed to
reveal the existence of the
dismissal letters to the court in their
founding papers. Even the report and findings of the Mediator I.B.
Tafa fails to disclose
this but simply states that “all production
employees were sent away since 27th March 2006…” I
agree with Mr Thapelo for the respondent that it is therefore
disingenuous of the applicants to aver that they
are unaware of their
contractual status. Indeed, by signing new employment contracts, the
26 applicants who have returned to work
have thereby acknowledged
that they were dismissed in March 2006. Needless to say, I find no
merit in the ground of urgency at paragraph
3.1 of the founding
affidavit.

[13] Paragraph 3.2 of the
founding affidavit avers possible future redundancies due to possible
loss of production. It contains no
facts but mere arguments, the
basis for which is purely speculative and imaginary. Besides, the
respondent is back in business. I
also find no merit whatsoever in
this ground.

[14] Paragraph 3.2.1 contains an
extremely odd ground for urgency; that the directors may be
untraceable as the respondent has a branch
in Zimbabwe. The
applicants were employed by the respondent company and not by any
directors. Paxton has deposed to the fact that
he is a Botswana
citizen, the respondent company is locally registered, and that it
has substantial assets both moveable and immovable.
His affidavit
stands uncontroverted and I find no merit in this ground either.

[15] At paragraph 3.2.1 the
applicants also allege that they may lose their terminal benefits and
wages worked for. It is clear from
the papers, and it was conceded
by Mr. Mandevu, that the applicants had already received their dues
long before the founding affidavit
was even sworn. The contents of
the affidavit in this regard are untruthful and misleading.

[16] I find therefore on the
papers before me, that the applicants have failed to make out any
plausible grounds for urgency.

Substantial Redress in Due
Course

[17] Section 20(5) requires that
an applicant in an urgent application must set out the reasons why he
claims he could not be afforded
substantial redress “at a mediation
by the Commissioner in due course”. The applicants having failed to
satisfy the court on
the circumstances which render the matter
urgent, I need not say much about this second limb of the requirement
for urgent applications.
Besides, this matter has already been
mediated. I have in previous matters of this nature raised the
question whether the reading
of this section means that an urgent
application is not possible once a matter has already been mediated
since the new Act came into
force removing the old two tier mediation
system. I do not believe that the legislature could have intended
such a reading which
in my view gives rise to a clear absurdity. The
similar High Court provision, Order 12 Rule 13, speaks of the reasons
why an applicant
claims he could not be afforded substantial redress
at “a hearing in due course.” This to me should be the
appropriate reading
of Section 20(5) of the Trade Disputes Act.
However, in view of my findings above, it is not necessary for me to
decide this point.

[18] In the final result I find
that the applicants have not made out a case for urgency and that
this application stands to be dismissed.

Costs

[19] Mr Thapelo prayed that I
grant costs against the applicants since the urgent application was
an abuse of the urgency provisions
and simply an attempt at jumping
the queue. Costs in the Industrial Court are awarded in exceptional
cases. Section 29(1) provides
that “No costs shall be awarded by
the Court except against a party held by the Court to have acted
frivolously or vexatiously,
or with deliberate delay in the bringing
or defending of a proceeding”
.

[20] The applicants originally
registered a termination dispute and claimed compensation for unfair
dismissal. This is clear from
the undated Mediation Hearing Report :

CONCLUSION

Employees demanded to be
compensated with three months salary each and to be paid a fortnight
in lieu of notice for unfair dismissal
and this was rejected by
Management. The matter was referred to Industrial Court.

[21] I find that the applicants
were to a large extent misguided by the findings of the Mediator in
this case. The Mediator in this
case issued a Savingram dated 10
th
April 2006 to the Registrar of the Industrial Court setting out
further findings and containing a ‘prayer’ that the court invokes
the urgency provisions under the Act. A mediator should not be an
interested party in any application. See the judgment of OBK Dingake
J, in the matter of

E.
Moloi & 232 Others v. Diaparo International
IC.
94/03 of 23 May 2003 (J890) at page 2 of the typed judgment:

Whilst
still on the affidavit of the Labour Officer, I must express my
discomfort at the emerging trend or tendency of Labour Officers
to
champion the cause of one of the parties (more often it is the cause
of the employees) by filing supporting affidavits in support
of one
of the parties. By so doing the Labour Officers compromise their
statutory role as impartial mediators. In my view this
practice
should be discontinued.

[22] Whilst
I am unaware whether the Minister has published a Code of Ethics for
Mediators as required by Section 12 of the Trade
Disputes Act, I set
out in some length the requirement of impartiality by mediators in
the
case of Stanley Moleki v.
Kiwi Canopies
Case No
IC. 198/02 of 7 February 2003 ( J818).
I therefore fully understand why the respondent has taken the
point on recusal on the basis of nemo judex in causa sua , and
on bias, but it is not an issue I need decide.

[23] I find that the applicants
were misdirected in moving this application. Warranted they were
represented by a Labour Consultant
who
should have known better. However, the law relating to strikes and
lockouts is a not a simple area to traverse. No doubt the applicants
have probably paid good money to their consultant. In the instant
case therefore the applicants are extremely fortunate that I do
not
grant costs against them.

[23] This Ruling being on a
point
in limine,
and on the affidavits before me, I alone have considered the issues
and signed.

RULING

In the final result I make the
following ruling:

1 The respondent’s point in
limine is upheld as the applicants failed to make out a case for
urgency.

2. The application for urgency
is therefore dismissed and this matter is to follow the normal
course and procedures for hearings.

3. No order is made as to costs.

Dated at Francistown this 2nd
day of June 2006

……………………………………….

M.
EBRAHIM-CARSTENS

INDUSTRIAL
COURT JUDGE





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