---

IN THE
INDUSTRIAL COURT OF BOTSWANA

HELD AT
GABORONE

 
CASE NO. IC. 354/2006

IN
THE DISPUTE BETWEEN

Botswana
Savings Bank Employees Union ………………………. APPLICANT

AND

 

BOTSWANA
SAVINGS BANK ………………………. RESPONDENT

——————————————————————————————–

CONSTITUTION
OF THE COURT

D.
J. de VILLIERS INDUSTRIAL COURT
JUDGE

B.
N. GAITHOBOGE NOMINATED MEMBER (UNION)

N.
P. MOROKA NOMINATED MEMBER
(BOCCIM)

FOR
THE APPLICANT:

MR S. D. MOSWEU
OF MOSWEU AND COMPANY LEGAL PRACTICE, GABORONE

FOR
THE RESPONDENT

MR
S. A. ZIGA OF ARMSTRONGS ATTORNEYS

GABORONE

PLACE
AND DATES OF PROCEEDINGS

GABORONE 2
AND 5 MAY 2006

Return
date of rule nisi
which granted an interim interdict.

Court
finds that respondent’s announcement to all employees that it is
going to pay non-unionised members a 6% increase before completion
of
wage negotiations is in breach of parties’ new agreement –
respondent acted in bad faith.

Also
further acted in bad faith by implementing this increase while this
matter was being argued in court.

JUDGMENT

Background

[1] The applicant
is Botswana Savings Bank Employees Union, a trade union registered as
such in terms of the relevant laws of Botswana.
The respondent is
Botswana Savings Bank, a statutory corporation, incorporated in terms
of the Botswana Savings Bank Act (Cap.56:03)
as an independent
national financial institution, wholly owned by the Government, for
purposes of providing banking and financial
services to all the
people of Botswana under supervision of the Bank of Botswana. The
respondent is governed by a board of directors.

[2] On 8 March
1999 the respondent and the applicant entered into a Recognition and
Procedure Agreement, hereinafter referred to as
the recognition
agreement, in terms of which the respondent, inte
ralia, agreed:

(a) to recognise
the applicant as the sole representative and negotiating body for the
respondent’s employees who are its members;

(b) not to
recognise “any other
union, association or organisation of employees as purporting to
represent the employees who are eligible for representation
by the”
applicant.

[3] As to union
representation the respondent’s acting managing director states as
follows in paragraph 10 of his answering affidavit,
which was not
disputed by the applicant:

“The
Applicant, represents 93, out of a total of 136 employees from bands
1 to 3 who
are eligible for Union Representation. Managerial staff and other
members of staff who are not eligible for representation by
virtue of
their positions (HR, Internal Audit and Security Staff) constitute a
total of 25 employees. 43 of the non unionized staff
are eligible for
representation, and have elected not to. The Respondent also has 18
temporary employees, who are not eligible for
representation.”

[4] It was common
cause that the parties commenced the annual salary negotiations for
the financial year 2006/2006 at a negotiating
committee meeting on 4
April 2006. As a start the respondent proposed a 2% increase while
the applicant made a counter proposal
of 18% increase. At the end of
the meeting the parties had not reached concensus on the salary
increase for the said period. This
meeting was then adjourned to a
future date to enable the respondent to consult further with its
Board. Before the said adjournment
the respondent had proposed a 3%
increase and the applicant had proposed a 17% increase.

[5] The meeting
reconvened on 10 April 2006 but at this meeting the parties were
still unable to reach consensus on an appropriate
salary increase for
the said period. After a caucus meeting the applicant made a final
proposal of 10% increase and the respondent
replied that their final
offer, as per their mandate, was an increase of 6%. The parties
agreed that a deadlock had not yet been
reached “because
avenues for resolving the problem have not been exhausted. The
parties had to prepare a joint statement —-. The parties
agreed to
meet on 21^st
April 2006 to continue with the resolution of the dispute as the
procedure requires.” (According to the
minutes of this meeting)

[6] It was common
cause that on the very next day, 11 April 2006, the respondent’s
acting managing director convened a meeting with
all the respondent’s
employees, i.e. unionised and non-unionised employees. At this
meeting he announced that management had decided
to effect a 6%
salary increase to its non-unionised employees with effect from 1
April 2006.

[7] The
applicant’s officials went to see their attorney who, on that same
day, 11 April 2006, wrote to the respondent stating inter
alia:

“In
the premises we demand that you stop the intended implementation of
the salary increments forthwith to enable the collective bargaining
process to take its course, failing which we are under instructions
to seek a court interdict to compel you to accede to our demand.”

[8] The following
day, 12 April 2006, management replied to this letter, stating inter
alia:

“However,
we wish to bring to your attention that the BSB Union represents
their members only. The Union has no other mandate to represent
employees who are not its members. The interests of such
non-unionized employees are represented by themselves individually
and
the Bank’s Management (including the Board of Directors). In
view of the aforesaid, it is our considered opinion that the decision
taken by the bank to make an award to the non-unionized employees is
not inconsistent with the law and best practice.”

[9] The applicant
thereupon brought an urgent application to this court, in terms of
section 20 (3) of the Trade Disputes Act, no.15
of 2004, on 20 April
2006, which was heard by Legwaila, J.P. The court found in a
reserved judgment, dated 25 April 2006, that the
applicant had proved
urgency and further stated:

“The
court is not, at this moment, seeking to make any ruling as to
whether the respondent’s decision should be set aside. It is
simply saying that the applicant has made out a prima facie
case justifying an order calling on the respondent to show cause why
such a final relief should not be awarded to the applicant.
The
balance of convenience favours such order.

ORDER

[22] In
consequence of the foregoing, IT IS HEREBY ORDERED THAT:

1. A
Rule Nisi do hereby issue returnable on the 2^nd of
May 2006, calling upon the respondent and other parties who have or
may have substantial interest in the matter to show cause
why, if
any,

1.1 Respondent’s
decision to effect a salary increment on its non-unionised employees
cannot be set aside as irregular and /or unfair;

1.2 The
purported increment of non-unionised staff salaries cannot be
suspended until the conclusion of the salary negotiations between
the
applicant and the respondent;

2. Prayer
1.2 should operate as an interim relief pending the full and final
determination of this matter or the conclusion of the
negotiations,
whichever is earlier;

3. Third
parties (e.g.. non-unionised employees) who have or may have a direct
and substantial interest in any order the Court might
make on the
final determination of this matter be joined to the proceedings as
necessary parties;

4. This
Order be served on the said necessary parties by Counsel for the
applicant through respondent’s management.”

[10] It is also
common cause that while this urgent application was being argued
before this court on 20 April 2006, the respondent
implemented its
aforesaid decision and paid out this 6% salary increase to all
non-unionised employees.

Point in limine

[11] In his
answering affidavit, which was filed on 4 May 2006, the respondent’s
acting managing director raised a point in
limine that
the aforesaid recognition agreement had terminated and that its
provisions were no longer applicable to or binding on the parties.

Mr Ziga, for the respondent, requested that this point in
limine be dealt with first and the court
to give a ruling thereon before the rest of the application be
argued. Mr Mosweu opposed this
request. The court ruled that this
application should be argued in
toto
by both Counsel.

[12] The court
will deal firstly with mr Ziga’s submissions on this point in
limine, for
which he is relying heavily on the provisions of clause 16.1,
especially clause 16.1 (f), of the said recognition agreement, which
last mentioned clause provides as follows:

16.1 This
Agreement shall remain in force and in effect, in whole and in part,
unless and until:

1. – (e)
   – – – – -; or

6. the
   expiry of two (2) years from the date of the signing of this
   Agreement. However, if neither party has, within three (3) months
   of the expiry of the two (2) years, signified to the other that it
   wishes to alter or replace this Agreement in part or in whole,
   it
   shall be deemed to have been renewed for a further period of two (2)
   years by tacit mutual consent.”

[13] The
respondent’s interpretation of the said clause 16.1 (f) is set out
as follows in paragraphs 11 and 12 of the said answering
affidavit:

“11 In
terms of clause 16.1, of the Recognition Agreement, it would remain
in force and effect in whole or in part and last until the
expiry of
two years from the date of signing of the agreement. However if any
of the parties had within three months of the expiry
of the two
years, signified to the other that it wished to alter or replace the
agreement in part or in whole it would be deemed
to have been renewed
for a further period of two years by tacit mutual consent.

12 The
initial period of the agreement was from the 8^th of March
1999 to the 7^th March 2001 and since neither party,
signified that it wished to alter or replace the agreement in part or
in whole, it was deemed
renewed by tacit mutual consent for a further
period of two years terminating, on the 7^th of March 2003.
This agreement was neither renewed nor replaced after such
termination and it is legally, no longer of any force
and effect.
Full legal argument in this regard, will be advanced at the hearing
of this matter by the Respondent’s attorneys of
record.”

[14] The aforesaid
two clauses in the respondent’s answering affidavit was then also
the basis of mr Ziga’s submissions. He submitted
that the said
clause 16.1 (f) is clear and unambiguous and that its provisions are
mandatory because of the use of the word “shall”
in the said clause. He said that after the
first two years, this agreement can be tacidly renewed for a further
two years, without
the parties doing anything. Thereafter the
recognition agreement will automatically lapse unless it has been
replaced by a new agreement
by mutual agreement of the parties in
terms of clause 16.1 (c ). He submitted that as this agreement has
not been replaced by a
mutual agreement of the parties and as the
said clause 16.1 (f) makes no provision for any further renewal after
the said initial
4 years, this recognition agreement lapsed on 7
March 2003.

[15] Mr Ziga
further submitted that in terms of the definition of a “collective
labour agreement” in section 2 of the Trade
Disputes Act, no.15 of 2004, a recognition agreement falls within
such definition. In terms of section
38 (1) of the said Act a
certified copy of any collective labour agreement shall be lodged
with the Commissioner of Labour, who shall
register such collective
labour agreement in the prescribed manner. He said that as there is
no evidence before the court that the
said recognition agreement was
ever registered, it cannot be enforced, even if it had not lapsed.

[16] In reply to
the applicant’s allegation that the respondent acted in bad faith
by breaching the provisions of the said recognition
agreement, Mr
Ziga submitted that there is no merit in this allegation because it
is based on a wrong premise. It is based on the
premise that the
said recognition agreement is still valid. He said that he has
already shown that the said recognition agreement
was no longer valid
and therefore the applicant’s aforesaid submission about bad faith
must crumble.

[17] In reply mr
Mosweu expressed his dismay at the respondent taking this point in
limine at such a late stage. It was
mentioned for the first time in the said answering affidavit filed on
4 May 2006, which was one day
before submissions were made on the
return date of the said rule nisi.

[18] He submitted
that he finds it strange that the respondent is now saying that the
said recognition agreement has lapsed when there
is ample proof in
the application papers that both parties intended and agreed that the
provisions of the said recognition agreement
would govern their
2006/2007 wage negotiations.

[19] Mr Mosweu
referred the court to inter
alia the following extracts from the
application papers to substantiate his submission:

(a) The following
appears in the opening remarks of the minutes of the first
negotiation committee meeting on 4 April 2006:

“The
Chairperson observed that last year the parties agreed to suspend
clause 9.3.1 of the Recognition and Procedure Agreement to
enable the
parties to proceed with negotiations for 2005/6. He informed the
parties that this year’s salary negotiations also
come at the time
the parties have not completed revision of the Memorandum of
Agreement (Recognition and Procedure Agreement). He
therefore, proposed to the parties to renew the agreement in order to
commence 2006/7 salary negotiations.

The
Union agreed
and indicated that the Memorandum of Agreement should not prescribe
time frame for the agreement, arguing that it should be in force
until such time that the Recognition and Procedure Agreement has been
reviewed.” (The court’s underlining)

(b) On 11 April
2006, the same day on which management informed all employees of its
decision to grant a 6% wage increase to all non-unionised
employees,
the union’s attorney wrote to management stating inter
alia:

“3.
In terms of the collective labour agreement (Recognition and
Procedure Agreement) currently regulating the relations between the
Bank and the Union, in particular, Clause 10 thereof, the parties are
required to prepare a joint statement reflecting the respective
positions of the parties.”

(c) The acting
managing director of the respondent replied the following day and in
his letter he stated inter
alia:

“Dear
Sir,

RE:
INTENDED IMPLEMENTATION OF SALARY INCREMENT TO BSB NON-UNIONIZED
EMPLOYEES

We
acknowledge receipt of your letter ref:SDM/0010 dated 11^th
April, 2006, on the above matter.

We
confirm that:-

• The
  parties have reached a stage where the parties could not agree on
  the increment to be implemented.

• The
  Parties have not deadlocked..

–
– – – – –

As
indicated earlier the Bank is committed to the relevant provisions of
the Recognition and Procedure Agreement
and we dismiss the notion that the position that we have adopted to
adjust the remuneration of non-unionized employees is an indication
that the Bank is no longer willing to negotiate or bargain with the
Union.

We
wish to state that our decision is in no way intended to prevent the
collective bargaining process from proceeding as it should.
In-fact,
the Bank has made it clear to the BSB Union that the bargaining
process will take its course as outlined in the Recognition
and
Procedure Agreement
and the various pieces of relevant legislation in the country. We
therefore maintain our decision to implement the salary adjustments
to non-unionized members with effect from 1^st
April 2006.” (The court’s underlining)

[20] In reply
hereto mr Ziga submitted that when the parties commenced their
2006/2007 wage negotiations they were both under the
mistaken belief
that the recognition agreement was still valid and in force. He said
that such mistaken belief could not breathe
life into a lapsed
recognition agreement – it was dead and no longer enforceable. Mr
Ziga submitted that a cardinal principle
of the law of contract is
that once an agreement has terminated it cannot be renewed. Even if
the parties think they are renewing
it, as in this case, they are in
fact entering into a new agreement. In the present case this new
agreement would have been a new
recognition agreement, which would
have been unenforceable, as it was not registered by the Commissioner
of Labour, as stated above.

[21] The court
does not agree in
toto with the last mentioned submissions
of mr Ziga. In light of the view taken by the court in respect of
this point in
limine, the court finds it unnecessary to
make a definite finding on the validity or otherwise of the said
recognition agreement. For purposes
of argument the court will
however accept that the said recognition agreement had lapsed in
terms of the said clause 16.1 (f), so
as to deal with the rest of Mr
Ziga’s submissions on this point in
limine.

The new
agreement

[22] The court
agrees that the parties entered into a new agreement at their first
negotiation committee meeting regarding the 2006/2007
wage
negotiations on 4 April 2006. The court does not agree that, because
the said original recognition agreement had lapsed, therefore
this
new agreement of 4 April 2006 must be a nullity. This new agreement
would not renew the lapsed recognition agreement but as
an agreement
it would have some force and effect, in terms of the principles
applicable to the interpretation of contracts.

[23] E. A.
Kellaway, Principles of Legal Interpretation of Statutes, Contracts
and Wills (1995), states at page 418:

“In
earlier interpretation of instruments the trend was to look first to
the language used as the dominant determining factor, and
then to
other possible considerations, for instance whether the literal
meaning led to an absurdity. What I consider to be the proper
approach to the interpretation or construction of all instruments is
embodied in what I have termed the triple synthesis; of the
language
used in context; the intention of the parties; and the purpose of the
transactions. This is
not a sequential approach to the interpretation of any instrument,
and it would appear that the Earl of Halsbury, aforementioned,
would
have supported this submission.

What
is important is that it is not the correct approach to say that if
step one (for example, having regard to the language used)
is
believed not to be decisive of the meaning, then step two is to
follow (for example, having regard to the context of the language),
and if that is not decisive, then step three (for example, examining
the purpose of the contract), and so forth.

Indeed,
it may be destructive of any proper interpretation or construction of
a contract to apply any rigid order of considerations,
allowing any
stage reached to be decisive of the meaning of the contract without
further consideration and testing. For instance,
on reading the
language of an instrument an interpreter following the literalist
approach may immediately settle for its meaning,
but if he takes into
account the clear purpose of the transaction he may find that it
conflicts with what he has wrongly assumed
to be the intention of the
parties, and hence the incorrect meaning.

It
will be appreciated from what follows that in recent years,
particularly in South Africa and England, courts have examined the
whole instrument, taking their stand as to its meaning on any one or
more of the aspects making up the triple synthesis even if the
language the parties have used appears to be clear.

The
essence of the triple synthesis approach is to combine these separate
elements of thought (pertaining to what the parties committed
to
writing, with what contractual intention they acted, and for what
purpose they concluded the contract) into one whole, each being
relative and correlative to the other.

Interpretation,
it is submitted, cannot be exact if each factor or aspect of the
triple synthesis is taken in isolation and reliance
is placed on any
one without consideration of the others; the true meaning of a
contract or instrument is determined when the combination
of all the
aspects of the triple synthesis points to its meaning.”

The above
principles of legal interpretation of contracts are derived from the
Roman Dutch Law, which is the common law in South Africa
and in
Botswana. Kellaway, op. cit. states at page 20:

“The
conclusion to be drawn is that any suggestion that in matters of
statutory interpretation the South African judiciary must, to
the
present day, apply English law principles of interpretation and not
those emanating from Roman-Dutch law, is untenable, and such
a
suggestion has no validity.”

This court will
therefore also apply the abovementioned principles of interpretation
when interpreting the aforesaid new agreement.

[24] In applying
the aforesaid triple synthesis approach the court will start with the
second factor of this approach, namely, what
was the intention of the
parties when they agreed to “renew”
the original recognition agreement.

[25] The court
finds that the parties said new agreement is not contained in a
single document, but that it is one transaction contained
in several
documents, namely in the minutes of the said two negotiation meetings
and in correspondence between the parties. As to
such a situation
Kellaway, op. cit.,
states the following in paragraph 47 at page 473:

“47
One transaction contained in several documents

A
contract may not only consist of the terms and conditions contained
in it, but it may also be made subject to the rules and conditions
contained in some other document without attaching such rules and
conditions but expressly referred to in the contract, such as the
contract being subject to the rules of a mutual insurance company or
the London Stock Exchange and such-like.

When
interpreting such a contract, the document expressly referred to
shall be regarded as incorporated in the contract. If a conflict
results between the terms of the contract and the incorporated rules
the accepted principles of interpretation apply, the
dominant purpose being to determine what the parties intend.
(The court’s underlining)

[26] When the
parties entered into this new agreement on 4 April 2006, which was
briefly recorded in the minutes of that meeting,
as set out in
paragraph [19] (a) hereof, the parties expressly referred to another
document, namely the said “Recognition
and Procedure Agreement,” the terms of
which must therefore be regarded as incorporated in the said new
agreement.

[27] On a proper
reading of the said minutes of the meetings and the said
correspondence, the court finds that it was the intention
of the
parties that the said negotiation committee meeting regarding the
2006/2007 wage negotiations should be conducted in an orderly
manner
according to the procedures laid down in the said recognition
agreement. The court finds that it was not the intention of
the
parties to renew the said recognition agreement in terms of clause
16.1 of the said recognition agreement. The reason for so
finding is
because clause 16.1 makes no provision for express renewal of the
said recognition agreement. It only provides for tacid
renewal
(clause 16.1 (f)), amendment thereof clause 16.1 (a)), cancellation
thereof (clause 16.1 (b)) and replacement thereof by
a new agreement
(clause 16.1 (c)).

[28] The court
finds that the purpose of this new agreement is closely related to
the intention of the parties. The court finds that
the purpose of
the said new agreement was to give the parties some guidelines in
writing as to procedures that should be followed
during these
negotiations, should certain eventualities arise.

[29] As to the
first factor of the triple synthesis approach, namely the language
used in the new agreement, which was briefly recorded
in the minutes
of the first meeting, the court finds that the meaning of the word to
be determined, is the word “renew.”
The court finds that if the court should give “renew”
its popular meaning, i.e. its every day
meaning, it could result in a conflict between the new agreement, as
recorded in the minutes,
and the provisions of the original
recognition agreement, for reasons set out in paragraph [27] hereof.
In such a situation the
position will be as set out in the underlined
words in the extract from Kellaway in paragraph [24] hereof, namely
that the dominant
purpose will then be what the parties intended.

[30] The court
therefore finds that the said first factor, namely the language used,
cannot be of any assistance as the word “renew”
cannot be afforded its popular meaning and
this factor should therefore be read in the context of the intention
of the parties and
the purpose of the said new agreement, as set out
above.

[31] The court
consequently finds that the parties are bound to comply with the
terms of the said new agreement, which includes the
provisions of the
said original recognition agreement, even if it was no longer valid
as such, as the parties only adopted the said
provisions to serve as
guidelines during the 2006/2007 wage negotiations. This finding is
supported by mr Ziga’s concession during
his argument that after
the said recognition agreement was no longer enforceable after it
lapsed in 2003, the respondent nevertheless
recognised that there was
this dispute resolution mechanism which they have always implemented
without going to litigation.

Effect of such
guidelines

[32] Mr Ziga had a
lengthy argument on what is required of the respondent in the absence
of a valid recognition agreement. He submitted
that what is required
of the respondent is to engage in negotiations with the union with
the honest intention to try and reach an
agreement on wage increases.
He said reference must therefore be made to the minutes of the said
two meetings and to correspondence
between the parties after the
second meeting, which clearly show that the respondent did have such
honest intention. There is no
reason why the court should doubt such
intention by the respondent. The court consequently accepts that the
respondent did have
such intention, but in view of the court’s
aforesaid finding that, even on the assumption that the said
recognition agreement as
such was no longer in force, the provisions
thereof shall still serve as guidelines for their negotiations, the
court finds that
the aforesaid argument does not take this dispute
any further.

[33] Mr Mosweu
submitted that the respondent acted in bad faith and in contravention
of clause 10.8 of the recognition agreement by
making known the
position of the negotiations to all employees in the absence of the
union on 11 April 2006 before deadlock had been
reached. Although
the court has assumed that the said recognition agreement as such was
no longer in force, the court finds that
mr Mosweu’s aforesaid
submission is still relevant. It is relevant because clause 10.8 is
one of the provisions the parties agreed
would be followed as to
procedure during their negotiations.

[34] The said
clause 10.8 provides as follows:

“10.8 Both
parties agree that they will not issue statements to the media, or
make known the position of negotiations, until:

1. A
   meeting of the NC has been successfully concluded; or

2. A
   meeting of the NC has ended in deadlock and declaration of the
   dispute has been noted.”

[35] It was common
cause that the parties had not reached deadlock at the end of their
second meeting on 10 April 2006. Respondent
indicated so in its
letter of 12 April 2006 that collective bargaining will go on as far
as unionised employees are concerned. Mr
Ziga set out the difference
between deadlock and impasse as follows. He said the parties can
reach an impasse before a deadlock
is reached or declared. He also
submitted that in clause 10.8 deadlock is used in the sense that
until such point is reached after
negotiations, the parties cannot
before then avail themselves of the provisions of the Trade Dispute
Act.

[36] Mr Ziga
submitted that in the present case, although deadlock had not yet
been declared, the parties had reached an impasse at
the end of the
second meeting as set out in the answering affidavit. He referred
the court to a judgment of the Court of Appeal
in South Africa,
National Union of Mineworkers v East Rand Gold and Uranium Co.
Ltd., [1991] ZASCA 168; 1992 (1) S. A 700 (A), in which the court endorsed the
principle that where impasse has been reached, unilateral changes may
be made.

[37] According to
the definition in South African Labour Glossary by Frans Barker and
Maggie Holtzhousen an impasse is a temporary
deadlock (Afrikaans –
tydelike dooiepunt) and is defined as follows:

“impasse
(tydelike dooiepunt) A stage in negotiation where a continuation of
the bargaining session would not culminate in an agreement, or
where
this is the perception of one or both of the parties. See also
deadlock.”

A deadlock is
defined as follows:

Deadlock
(dooiepunt) A stage in negotiation or during conciliation
when the parties are in dispute and no progress towards
settlement of the dispute seems likely. See also impasse.”

[38] According to
the said definition an impasse (a temporary deadlock) can be reached
at the end of a “bargaining
session.” The parties in the present case
had two bargaining sessions, namely on 4 and 10 April 2006 when an
impasse was reached. The court
finds that the aforesaid Appeal Court
case would have been applicable in this case if it had not been for
the wording of the said
clause 10.8, which makes no mention of an
impasse but sets out what the parties may not do “until
a meeting of the NC [negotiating committee] has ended in deadlock.”

[39] Having found
that the parties had agreed in their new agreement on 4 April 2006
that they would follow the procedures in the
said recognition
agreement and having found that the parties had not reached deadlock
at the end of their second negotiating meeting,
the court finds that
it is immaterial that they had already reached impasse twice with
reference to clause 10.8.

[40] Mr Ziga
submitted that, even if the said recognition agreement was still in
force, there was no merit in mr Mosweu’s submission
that the
respondent acted in bad faith by failing to comply with the
provisions of the said clause 10.8. He submitted that clause
10.8
should be interpreted to mean that both parties shall not divulge the
mentioned information to third parties and that it does
not apply to
divulging of the said information to employees.

[41] The court
does not agree with such interpretation and finds that from the
wording of the said clause 10.8, the issue of statements
applies only
to media but the making known of the position of the negotiations
applies to any third party as well as employees.

[42] Mr Ziga also
referred the court to an article in the Industrial Law Journal by
Alan Rycroft, with the title of The Duty to Bargain
in Good Faith,
(1988) 9 ILJ 202. The author states that the duty to bargain in good
faith is an international norm of collective
bargaining. At page 205
he sets out conduct which weakens the bargaining process, and
mentions inter alia
“management dealing
directly with employees.” He continues as
follows at page 206:

“The
only circumstances allowing a unilateral alteration in terms and
conditions are when negotiations have reached an impasse or when
there is a bona fide business reason for such immediate
action.”

[43] The court
agrees with the aforesaid exposition of the labour law, but finds
again, as set out above in paragraph [38], that the
first
circumstance mentioned could have been applicable in this case, if it
had not been for the wording of the said clause 10.8,
which makes no
mention of an impasse, but only refers to a deadlock. As regards the
second circumstances, no reason whatsoever,
let alone a bona
fide business reason, was given for the
immediate action to implement the 6% wage increase for non-unionised
members.

[44] In his
answering affidavit the acting managing director stated that even if
the recognition agreement had not lapsed it would
have been in favour
of the respondent and he referred to clause 7.2 of the said
recognition agreement to justify the said payment
of the 6% wage
increase to non-unionised employees, which clause provides as
follows:

“The
Bank undertakes not to implement any negotiable matters without prior
negotiations having been held with the Union.”

The acting
managing director then continues by stating that the said clause does
not state that implementation can only take place
after deadlock has
been declared.

[45] The court
finds that there is no merit in this submission, as clause 7.2 has to
be read with clause 10. “Prior
negotiations” do not mean just at any state
during the negotiations, without having followed the procedures laid
down in clause 10, should a dispute
arise.

[46] The acting
managing director also referred to clause 13.1 of the recognition
agreement which he said would also have been in
the respondent’s
favour. Clause 13.1 provides as follows:

“13.1 The
Bank reserves the right to communicate and consult
directly with all its employees and through whatever medium and
acknowledges the Union’s right to report back to its members.”
(The court’s underlining)

The court finds
that this section does not negate the provisions of clause 10.8 which
deals with matters that have to be negotiated
at a negotiating
meeting, whereas clause 13.1 deals with matters that only need
consultation.

[47] The acting
managing director stated in his founding affidavit and mr Ziga so
argued that clause 10.8, even if the recognition
had not lapsed, was
not applicable to the announcement made by the respondent to all
employees on 11 April 2006, “as
the 6% increase was to non-union members and did not emanate from the
negotiations. It had been mandated by the Board on 2
March 2006,
prior to commencement of negotiations.”

[48] The court
agrees with mr Mosweu’s submission and finds that such information
regarding 6% increase did in fact emanate from
the negotiations. The
following appears in the answering affidavit of the acting managing
director as to what the staff were told:

“28 The
Respondent then convened a meeting of all the staff members on the
11^th of April 2006 in terms of which they advised the
staff that:

28.1 an
impasse had been reached, in negotiations with the Applicant;

28.2 a
dispute settlement process would continue, with a hope of resolving
the matter amicably, before a deadlock could be declared;

28.3 pending
such resolution, Respondent would implement, the offer of 6% to
non-unionised members, with effect from 1^st of April 2006.

29. This
announcement was made on the basis that an impasse had been reached
in negotiations. To be best of my knowledge and belief
once an
impasse is reached, the Respondent is entitled to implement an offer.
This would be the case even if the Recognition agreement
is
enforceable (and it is reiterated that it is not).”

[49] The reason
for the court’s finding that the offer of a 6% increase did emanate
form the negotiations, is because at the first
meeting on 4 April
2006 the respondent offered an increase of 2% and after negotiations
on that day it increased its offer to 3%.
It was only at the end of
the second meeting on 10 April 2006 after lengthy negotiations that
they increased their offer to 6%.
There can therefore be no doubt
that the offer of a 6% increase was a result of the protracted
negotiations.

[50] In the
circumstances the court finds that the respondent acted in breach of
the parties’ said new agreement, which also encompasses
the
procedural provisions of the said recognition agreement, by making
the said announcement on 11 April 2006 to all employees that
it is
going to give all non-unionised employees a 6% wage increase as from
1 April 2006. This was in breach of clause 10.8 of the
said
recognition agreement. By so doing the court finds that the
respondent was negotiating in bad faith.

[51] The court
agrees with the following findings of Legwaila, J.P. in his judgment
when granting the rule nisi in this case (Case No. IC. 354/06
(J. 1444) dated 25 April 2006) and also so finds. The first is the
following extract from paragraph
[11] of the said judgment:

“The
respondent knew as early as April11, 2006 that the applicant was
challenging the decision to implement the 6% increment with respect
to a section of its employees, and was served with Court papers by
Counsel for the applicant on April 19, 2006 at 9:40, but went
ahead
and implemented the decision. Indeed by the time the decision was
implemented the matter was being argued in Court. It cannot
say it
acted in good faith.”

The second finding
is the following contained in paragraph [18] of the said judgment:

“[18] The
Court is not unmindful of the fact that the increment was restricted
to the non-unionised employees. I have already explained
why the
applicant’s contention is that the decision cannot be divorced from
the negotiations. That is a point that cannot be lightly
dismissed.
In any case why were all employees called for the meeting if it had
no relevance to some of them? It is clear from the
applicant’s
pleadings, though not in explicit terms, that the circumstances
surrounding the 6% announcement are seen as intended
to undermine the
negotiations by dangling a carrot before the applicant’s members in
the hope that some of them would defect and
accept the offer. Indeed
the statement that the “parties have reached a stage where the
parties could not agree” implies that the respondent was
short-circuiting the procedures for declaring a deadlock. That was a
unilateral act and bad faith
on the part of the respondent.”

Final interdict

[52] The applicant
is now asking that the rule nisi,
granted on 25 April 2006, be confirmed, i.e. that
it is asking for a final interdict. Herbstein and van Winsen, The
Civil Practice
of the Supreme Court of South Africa, fourth edition,
state at page 1064 et.seq
that in order to succeed in obtaining a final interdict, whether it
be prohibitory or mandatory, an applicant must establish the
following:

(a) that he has a
clear right, which must be established on a balance of probabilities;

(b) that an injury
has actually been committed or reasonably apprehended, which “injury”
must be understood in the wide sense to
include any prejudice suffered by an applicant as a result of the
infringement of his rights;
and

(c) that he has no
similar protection by any other ordinary remedy.

[53] From the
court’s abovementioned findings the court is satisfied that the
applicant has established a clear right as a result
of the
respondent’s aforesaid breach. It has also established that it
reasonably apprehends that it will suffer prejudice in the
continuation of the said negotiations. The court finds that there is
no other remedy which can give the applicant similar protection
as
the respondent has already paid out this 6% increase to non-unionised
employees in April 2006 and will keep on paying it out every
month if
this rule is not confirmed. The court therefore finds that the
applicant is entitled to a final interdict being granted.

Costs

[54] Both parties
have applied for an order of costs. Section 29 (1) of the said Trade
Disputes Act gives this court only limited
powers to make a costs
award. Costs can only be awarded against a party if the court is
satisfied that the said party acted frivolously
or vexatiously, or
with deliberate delay in bringing or defending of a proceeding. In
this matter the court cannot find that any
of the aforesaid
circumstances are present. All the court’s findings are on matters
of law and are therefore capable of being
argued differently by the
two parties. The court will therefore make no order as to costs.

Conclusion

[55] Although I
sat with two assessors throughout argument in this matter, it is not
necessary for them to sign this judgment, as
all the findings were on
matters of law and as there were no factual disputes.

Order of court

[56] The court
consequently makes the following order:

1. Paragraphs 1.1
and 1.2 of the rule nisi granted on 25 April 2006, are
hereby confirmed.

2. No order is made
   as to costs.

Dated at Gaborone
this 26^th day of May 2006.

___________________________

D. J. de
Villiers

INDUSTRIAL
COURT JUDGE

---