Botswana Mining Workers Union v Debswana Diamond Companay (Pty) Ltd (Civil Appeal No. 24 of 204) [2004] BWCA 9 (28 September 2004)

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Botswana Mining Workers Union v Debswana Diamond Companay (Pty) Ltd (Civil Appeal No. 24 of 204) [2004] BWCA 9 (28 September 2004)

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IN THE COURT OF APPEAL OF BOTSWANA HELD AT LOBATSE
CA CASE NO. 24/2004 IC CASE NO. 202/2004
In the matter between:
BOTSWANA MINING WORKERS UNION Appellant
And
DEBSWANA DIAMOND COMPANY (PTY) LTD Respondent
Advocate AJ. Freund (with him Mr. L. Mogobe & Mr. M. Kadje) for the Appellant
Advocate J J. Gauntlett S.C. (with him Advocate AJ.
Myburgh & Mr. B.B. Tafa) for the Respondent
JUDGMENT
CORAM TebbuttJ.P Zietsman J.A. Mosojane AJ.A
TEBBUTTJ.P:

What is in issue in this appeal is the legality or otherwise of a proposed strike by workers in the diamond mining industry in Botswana.

The respondent, Debswana Diamond Company (Pty) Ltd
(hereinafter, for convenience, referred to as "the Company") owns
three diamond mines at Jwaneng, Orapa and Letlhakane in
V Botswana in which it employs several thousand workers. These

workers are all members of, and are represented by, the appellant, Botswana Mining Workers Union (hereinafter referred to as "the Union") a registered trade union. There exists between the parties a so-called recognition agreement which establishes and regulates the collective bargaining relationship between them and in particular imposes certain obligations on the parties in relation to dispute resolution procedures and the resort to industrial action.

In accordance with Clause 5.3 of the agreement a substantive agreement in regard to the terms and conditions of employment for the Union's members with the company is negotiated annually. The negotiations for the 2004/2005 year commenced between the

parties on 18^th March 2004 and they met a further nine times prior
to 16^th June 2004 but were unable to conclude an agreement. The
Union then referred the dispute to the Commissioner of Labour in
terms of Section 7 of the Trades Dispute Act No. 15 of 2004
(hereinafter referred to as "the Act") but as no settlement could
still be reached, the Commissioner issued a certificate of failure to
settle a trade dispute in terms of Section 8(1) of the Act. The
V referral of the dispute to the Commissioner and the circumstances

in which it occurred is one of the aspects in contention in this appeal and it will be referred to in detail later herein. Suffice at this stage to say that by 22^nd July 2004 the parties had failed to conclude a substantive agreement for 2004/2005.

On 22^nd July 2004 a notice was received by the Company from the Union in which it indicated its intention to embark on a strike from 26^th July 2004. This prompted the Company on 23^rd July 2004 to bring an urgent application in the Industrial Court, in terms of Section 42(2) of the Act, for an order
(a)

declaring the contemplated strike an unlawful strike in breach of the Act;
(b) interdicting and restraining

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(i) the Union and its members from
breaching the provisions of the recognition agreement

(ii) the member workers from breaching their contracts of employment by participating in an unlawful strike

(c) ordering the Union to ensure that its members complied with the provisions of the Act and of their employment contracts and/or of the recognition agreement.

The application was opposed by the Union.

After an initial postponement by the consent of the parties on 24^thJuly 2004, the Industrial Court, on 6 August 2004, found that the contemplated strike would not be a lawful strike and therefore fell to be interdicted.

It made the following order

"In terms of Section 42(2)(a) of the Trades Dispute Act, the Court hereby interdicts the contemplated strike called by the Respondent (the Union) at the Applicant's (the Company's) diamond mines at Jwaneng, Orapa and Letlhakane, as it is not in compliance with the provisions of the said Act."

No order was made as to costs.

The court subsequently filed full written reasons for its decision. It is against that decision that the Union now comes on appeal to this Court.

An event that occurred subsequent to the granting by the Industrial Court of the interdict is that on 23^rd August 2004 some workers at all three mines went on strike. It is common cause that this was a "wild cat" and illegal strike. On that same day, i.e. 23^rd August 2004, the Company brought an urgent application in the Industrial Court for the committal to prison of the Union's spokesman, one Chimbidzani Chimidza, and 31 of its members for contempt of the order of the Industrial Court set out above. Before that application could be heard the Union noted the present appeal against the Industrial Court's order interdicting and declaring unlawful the original contemplated strike, and when the contempt application (which is also opposed) came before the Industrial Court that application was postponed sine die pending the outcome of the present appeal.

In their heads of argument Counsel for the Company contended that this appeal is an abuse of process in that it has been brought

for a tactical reason viz as a stratagem designed to avoid the contempt and committal applications. In support of this contention the Company's legal representatives required that the full record of the proceedings to date before the Industrial Court be put before this Court as part of the record in the appeal, designating it as Volume 2 in that record. It consists of some 360 pages. At the hearing of the appeal, however, this contention that the Union had abused the process of the Court was not pursued and no reference was made to Volume 2. No more need therefore be said by this Court in regard to this contention, save on the question of costs which will be dealt with when the whole question of the costs of the appeal will be considered.

In its application of 23^rd July 2004, the Company advanced six grounds for its averment that the contemplated strike was unlawful and therefore unprotected.

These grounds are based either upon certain provisions of the Act or of the recognition agreement or, in one instance, on certain provisions of the Union's Rules and Constitution. The relevant provisions will be set out when they are referred to at the

appropriate stage of this judgment. Each one of the grounds will also be set out in greater particularity when it receives detailed consideration herein. Suffice at this stage to say briefly what the grounds are and what the Industrial Court's finding was in respect of each of them. Its reasons for those findings will also be considered later.

In respect of some of those grounds the court a quo found for the Union and against the Company. In others it found against the Union. It is in regard to the latter findings that the Union's appeal is based. In regard to the former findings i.e. those against it, the Company filed a notice in terms of Rule 22 of the Rules of the Court of Appeal that it intended to contend that the Industrial Court's decision should be varied and/or affirmed by including some of those grounds as well. At the hearing of the appeal, however, Counsel for the Company stated that the Company was not pursuing this contention.

I shall state which party contests which finding when setting out the various grounds.

One further observation must be made before doing so. It is that the present Trades Dispute Act No. 15 of 2004 came into effect on 23^rd April 2004, repealing the former Trades Dispute Act (Cap 48:02). The Company's application having been brought on 23^rdAugust 2004, those proceedings and the proceedings before this court are therefore governed, where relevant, by what one may call the new Act i.e. Act 15 of 2004.

One turns then to the six grounds. Ground 1: Strike Rules:

It was contended that the strike would have been premature as no strike rules regulating the conduct of such strike, as required by Section 39(1) of the Act, had been agreed to or determined. The Industrial Court found against this contention as a copy of such rules, as determined by the Commissioner of Labour, was handed into the Industrial Court at the hearing before it. This finding was one of those challenged by the Company in its Rule 22 notice but which, as stated above, it is now not pursuing. No more, therefore, need be said in regard to this ground.

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Ground 2: Previous Application in the Industrial Court
in regard to payment of a production bonus

One of the contentious issues that led to the Union's intention to call a strike was the question of a demand for a bonus by the workers in 2004. In 2003 an ex gratia bonus payment was made by the Company which was the subject of a dispute before the Industrial Court and in which the latter delivered a written judgment. The Company contended that the demand for a bonus in 2004 was designed to compensate the Union's members for a perceived shortfall in 2003 and therefore was either (a) in contempt of the Court's aforesaid judgment or (b) in breach of a full and final settlement clause in the 2003/2004 Wage Agreement. The court a quo found that the demand for a bonus in 2004 did not relate to the 2003 ex gratia bonus. The Company also challenged this finding in its Rule 22 notice but does not now persist in that challenge and no more therefore need also be said in regard to this ground.

Ground 3: Defective Notice

The Company contended that 48 hours notice of the intended strike, as required by Section 39(l)(b) of the Act, was defective. The court a quo found that there had been substantial compliance with the Act and held against the Company. The Company also challenged this finding in its Rule 22 notice but once more, does not persist therein. It accepts that the notice was a valid one.

Ground 4: Essential Services

The names of those employees required to work on essential services during a strike had to be furnished by the Company to the Union in terms of the recognition agreement. A dispute had arisen between the parties as to the names of the employees, which dispute had not been resolved by 23^rd August 2004. The Court a quo found that the strike would be premature if this issue was not first resolved. It is one of the three major issues which this Court is required to determine. It will be referred to as the "essential services point" in this appeal.

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Ground 5: Non-compliance with the provisions of the recognition agreement:
The agreement lays down in Clause 10 thereof the procedures to
be followed before strike action can be taken. These will be
detailed later herein. The Company averred that the Union had
not followed those procedures; the Union in turn, contended that
the Company had waived its right to require such compliance. The
Court a quo found that the Company had not waived its right and
that the Union had not exhausted the provisions of the agreement
before referring the dispute to the Commissioner of Labour.
Therefore, it held, such referral was invalid, and in consequence,
in terms of the Sections 39(l)(a)(b) and (c) of the Act, the
contemplated strike became unlawful. This finding is the basis for
the Union's major attack on the judgment of the Court a quo. Its
contentions, as well as the relevant sections of the Act and the
provisions of the recognition agreement, will be dealt with fully
hereinbelow in what will henceforth be called the "internal
procedure point".
Ground 6: Ballot:

The Union's Rules and Constitution provide that a decision on the taking of strike action at national level has to be taken by a secret ballot of the whole of its membership, and for the taking of local strike action a secret ballot or show of hands is required. The Court a quo found, firstly, that as all the Company's diamond mines were involved, the contemplated strike would be a national strike and, secondly, that no secret ballot was held nor even a show of hands. This, it held, was a serious breach of its own procedural rules. Section 49(l)(a)(i) of the Act provides that no person may take part in a strike if it is not in compliance "with an agreed procedure." The contemplated strike would, the Court found, therefore not be a lawful strike. This was not one of the grounds of appeal filed in the original notice of appeal but it has been added in terms of a supplementary notice of appeal. It will be called the "ballot point."

The last three issues viz the essential services point, the internal procedures point and the ballot point will now be considered in detail.

Fundamental to the consideration of these issues is the concept of labour relations between employee organizations and employers,

the regulation of those relations and the mechanisms for the settlement of disputes that may arise in the course of the pursuance of such regulation, including recourse to industrial action, in Botswana. Basic to the concept is the furtherance, securing and maintenance of good industrial relations in Botswana, a premise which is enshrined in the legislation dealing with such relations viz the Trades Dispute Act of 2004. The establishment and maintenance of good industrial relations finds its seed-bed in two spheres (i) the recognition as trade unions of employee organizations in the various industries in the country in terms of the Trade Unions and Employers' Organisations Act (Cap 48:01); and (ii) the conduct of negotiations between such trade unions and employers in the industry in all matters bearing upon the relations between the employees in the industry who are members of the trade union and their employers. Such negotiations are hopefully to be conducted by the parties in a spirit of goodwill, harmony and amicability. The achievement of labour harmony and sound labour relations on a collective basis is an ideal to which Botswana, as in many other countries, aims (Van Jaarsveld & Van Eck: Principles of Labour Law p315). It is also expressed by

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the parties herein themselves in the objectives set out by them in
their recognition agreement referred to above, which reads:
"1. OBJECTIVES

The Company and the Union, having met in free and voluntary association, recognizing the desirability of promoting, encouraging and maintaining harmonious working relations between the Company and the Union to the mutual benefit of both parties, and agreeing that such relations can best be achieved through the process of joint consultation and collective bargaining based on mutual trust and good faith.

DO HEREIN SET FORTH matters relating to the regulation of relations between the Company and the Union.

1.1 To promote industrial peace, stability and
fairness within the Company "
Should any dispute arise between the workers and the employer,
described as a trade dispute, that dispute, too, should if possible
be resolved by negotiation and mediation rather than by recourse
to industrial action. The predecessor to the present Act was
passed in its original form in 1982 as Cap 48:02 and provided for
mediation which was to be directed towards helping, in the first
instances, the parties to reach a settlement by their own efforts
(See Section 4(2)). This is still the aim of the present Act which
provides in Part II thereof for the establishment of a panel of

mediators and arbitrators whose mediation in any dispute must also be directed towards helping the parties to resolve any dispute between them principally by their own efforts (Section 6(4).) The Act, however, recognizes that disputes are not always capable of negotiated resolution and affords in Section 39(1) the right to a party to a dispute of interest to strike or lockout. (A "dispute of interest" is defined as "a dispute concerning the creation of new terms and conditions of employment or the variation of existing terms and conditions of employment" - which is the dispute between the parties in casu). That right to strike (we are not concerned with a lock-out here) is, however, not an absolute one or one without limitations but is a qualified one. It is qualified by the procedural requirements contained in Section 39 of the Act and by the prohibitive provisions of Section 42(1) of the Act, to which I shall shortly refer. It is, in my view, clear from the provisions of those sections that the Legislature, while establishing the right to strike, wished to discourage unfettered and precipitate recourse to it by enacting the qualifications referred to. The Legislature was no doubt aware of the far-reaching effects of a strike which not only cause the employer economic harm but also harm the economy of the country, apart

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from bedevilling harmonious industrial relations and inhibiting
collective bargaining and negotiation. The right to strike is one
which must be jealously defended; but it must be one which
should not be used at the mere whim of the employees. Its use is
obvious. By withholding their labour, the employees hope to bring
production to a halt, to cause the employer to lose business and to
sustain overheads without means of recovering them i.e. to cause
the employer economic harm in the expectation that this will
induce him or it to accede to their demands (see Van Jaarsveld
and Van Eck of cit.p316 and authorities there cited). Freedom
to strike is integral to the system of collective bargaining. The
strike is the sanction that impels the parties to bargain collectively
and gives strength to the bargaining powers of the workers. (See
Brassey & Others: New Labour Law p243). The importance
of its role in the process of collective bargaining is undoubted but
it should not be used indiscriminately. As stated by E.M.
Grossskopf in SACCAWU v OK BAZAARS f 1929^ LTD 1995 (31
SA622(Alat628D-H:

"The important role played by the freedom to strike in the system of collective bargaining can hardly be doubted. One should not, however, infer from the undoubted existence of the freedom to strike that an employer may not do anything to dissuade workers

from striking. The ultimate object of collective bargaining is industrial peace. It is one of the ironies of collective bargaining that the attainment of the object of industrial peace should depend on the threat of conflict (Brassey Loc. Cit). The reason for this dependence is a functional one. The freedom to threaten strike action and, if needs be, to carry out the threat is protected because, in an imperfect world, the system of collective bargaining requires it. This does not mean that strikes are to be encouraged. On the contrary. It would be preferable in every respect if the bargaining parties could reach agreement without recourse thereto, and this is indeed recognized by the Act (see, for example, s 65). A strike, it has been said, 'is a blunt instrument and one which damages the public, those who are striking and those against whom the strike is directed' (Heatons Transport (St Helens) Ltd v Transport and General Workers Union; Craddock Brothers v Transport and General Workers Union; Panalpina Services Ltd and Another v Transport and General Workers Union and Others [1972] 2 All ER 1214 (NIRC & CA) at 1233h-i). Although this weapon should be available to workers, it is in everybody's interest that it be used as seldom as possible."

And as held by the full court in STEEL &ENGINEERING INDUSTRIES FEDERATION & OTHERS v NUMSA (1) 1993(4) SA 190 m at 195:

"The legislature, in the Act, has discouraged precipitate strike action by obliging the trade union to attempt to resolve its disputes with employers or employer organizations by bargaining before resorting to industrial action; by providing for 'cooling off' periods; and by requiring a union to enjoy majority support before embarking on a strike."

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In my view the same purpose was in the mind of the Legislature
when it enacted Section 39 (laying down the procedural steps to
be followed before striking) and Section 42(1) of the Act. Section
42(1) imposes certain substantive fetters on the right to strike. It
reads as follows:
"42. (1) No person may take part in a strike or lockout if
(a)      the strike or lockout -
(i) is not in compliance with the provisions of this Part or an agreed procedure, or
(ii) is in breach of a peace clause in a collective agreement;
(b)      the subject matter of the strike or lockout is -
(i)      not a trade dispute,
(ii) regulated by a collective agreement,

(iii) a matter that is required by this Act to be referred to arbitration or to the Industrial Court for adjudication; or

(iv) a matter that the parties to the dispute have agreed to refer to arbitration."

There is no definition in the Act of either "an agreed procedure" or "a peace clause". One must look for their meaning in the context of other provisions of the Act. As set out above there exists between the parties a recognition agreement which establishes

and regulates the collective bargaining relationship between them. This falls within the definition in the Act of a "Collective Labour Agreement" which is "a written agreement relating to the terms and conditions of employment concluded between one or more registered trade unions -— and one or more employers" i.e. in casu the Union and the Company. The recognition agreement imposes certain obligations on the parties in relation to dispute resolution procedures and the resort to industrial action. It is therefore an agreement between the Company and the Union containing procedures which the parties agree to follow in the resolution of disputes and the taking of industrial action and thus, in my view, is clearly "an agreed procedure". It is, in terms of Section 37(1) of the Act, binding on the parties and in Clause 16.1 of the agreement the Company and the Union agreed that the agreement is legally binding on them. It is not uncommon for employees and employers to agree that they will not take strike action or a lockout unless and until certain procedural steps have been taken. That has happened in the present case.

A "peace clause" is said in Barker and Holtzhausen: South African Labour Glossary to be -

"a provision in a collective agreement whereby the parties agree to desist from industrial action during certain periods or under certain circumstances or during the currency of the agreement."

This definition commends itself to me. It is practical in that it
envisages the parties agreeing that there will be no strike action
by the workers or lockout by the employers at certain times say,
for example, over the Christmas holidays or the Easter period or
when, for instance, part of a factory or production plant is closed
for maintenance purposes or some similar occurrence during which
the parties agreed industrial action would be out of place. These
are provisions that there will be no strikes or lockouts i.e. that
there will be "peace" at certain agreed times or under certain
agreed circumstances. However, the requirement that certain
procedural steps or obligations must be taken or followed before a
strike or lockout can occur does not give rise to a "peace" gap. It
is not a "peace clause". It is rather an "agreed procedure".

It is convenient in dealing with the three issues on which the Industrial Court found against the Union to start with the "internal procedures point." That involves a consideration of the recognition agreement between the parties which, as has just

been held, is an "agreed procedure", the terms of which must be complied with or else the contemplated strike would not have been legal and, in particular, a consideration of Clauses 10 and 11 thereof.

Clause 10 provides:
"10 SETTLEMENT OF DISPUTES

The JNCC will meet to resolve or settle those disputes which arise at JNCC level and/or those referred to it by the operations if they arise out of or pertain to substantive or procedural agreement matters.

10.1 Disputes Arising at JNCC Level

Where at the meeting of the JNCC, the parties fail to agree on a matter which was tabled for negotiation, the JNCC will adjourn to allow the parties time to consider each other's position.

10.1.1

The JNCC shall reconvene within 10 days of the first failure to agree in an attempt to resolve the disagreement.

10.1.2

In the case of a further failure to agree, the two parties shall prepare a joint statement setting out the nature of the disagreement and refer such joint statement to their principals.

10.1.3

The JNCC shall convene again within 15 days of the last meeting. Should the dispute remain unresolved the joint statement shall be amended to reflect the positions and desired settlement of

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each party, and deadlock shall be declared.

10.1.4

The parties may after the declaration of a deadlock mutually agree to refer the matter to private mediation.

10.1.5

Should the dispute still remain unresolved after private mediation each party shall then be free to declare a dispute in terms of the Trades Dispute Act of 1983 as may be amended from time to time.

10.1.6

The parties may jointly agree to reduce or extend any time period or omit any stage referred to in this clause/'

In the Court a quo the Company submitted that the contemplated strike would be an illegal strike because of a failure by the Union to comply with the requirements set out in Clause 10 and that for that reason (among other reasons) the interdict should be granted. This submission was upheld by the Court a quo. The Union submits that the Court a quo erred in this respect.

It is common cause that the Agreement is a "Collective Labour Agreement" as defined in Section 2 of the Act. Section 37(1) provides that every Collective Labour Agreement shall be binding upon the parties thereto. Clause 16.1 of the Agreement provides

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also that "the Company and the Union intend this Agreement to be
legally binding on them." Clause 11.1 of the Agreement provides:
"11.1 The Company and the Union agree not to

cause, countenance or support any lockouts, strikes, restrictive practices or industrial action of any kind until the matter or matters in dispute have been dealt with in accordance with the procedures as stipulated under this Agreement, under the Trades Disputes Act of 1982, as may be amended, from time to time or any other relevant legislation."

Section 42(l)(a)(i) of the Act provides:
"42(1) No person may take part in a strike or lock
out if -(a) the strike or lockout -
(i) is not in compliance with the provisions
of this Part or an agreed procedure."
It is common cause that the procedure set out in Clause 10 of the
Agreement was not followed. Despite this fact Mr. Freund, for the
Union, submits that the contemplated strike would not have been
an illegal strike for the following reasons.

His first submission is that Clause 10 need not be complied with in respect of a strike if the provisions of PART VI of the Act are complied with. He relies for this submission on Section 42(l)(a)(i) of the Act which provides that no person may take part in a strike

if the strike is not in compliance with the provisions of Part VI of the Act or an agreed procedure. Mr. Freund lays emphasis on the word "or" and submits that as long as the provisions of Part VI of the Act are complied with the procedures set out in Clause 10 of the Agreement need not be followed.

I have difficulty in accepting this submission. The Act provides how and when a strike can be called. The parties to this appeal entered into an agreement setting out an agreed procedure which must be followed before a strike is called. If Mr. Freund's submission is correct it would mean that before resorting to a strike the Union members need only comply either with the terms of the Act or with the terms of the Agreement. This would mean that in concluding the Agreement the parties intended to provide a procedure alternate to that set out in the Act, and to provide that if the terms of the Agreement are implemented the provisions in the Act can be disregarded, and vice versa. Such an intention is not stated in the Agreement. In my opinion the clear intention of the Agreement was to add to, and not to detract from, the terms of the Act, and Section 37(1) of the Act gives statutory recognition to the Agreement by providing that "Every collective labour

agreement shall be binding upon the parties thereto." Section 42(l)(a)(i) of the Act provides that no person may take part in a strike if the strike is not in compliance with the Act or an agreed procedure. It does not provide that a person wishing to take part in a strike need comply only with the provisions of the Act, and need not comply with the terms of a specific agreement entered into between the parties.

It could not have been the intention of the legislator to provide that an agreement entered into between the parties, and given statutory recognition, could thereafter be ignored by the parties. The use of the word "or" in Section 42(l)(a)(i), which is couched in negative terms, does not indicate this intention and my conclusion is that compliance with Clause 10 of the Agreement was required to add legality to the intended strike. This conclusion is in keeping with the terms of Clause 11.1 of the Agreement which provides that the parties agree not to cause, countenance or support any strikes "until the matter or matters in dispute have been dealt with in accordance with the procedures as stipulated under this agreement —-."

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In the course of his argument Mr. Freund referred to Section 39 of
the Act. This section reads:
"39(1) Every party to a dispute of interest has the right to strike or lockout if -

(a) the dispute has been referred to the Commissioner in accordance with section 7, and, subject to subsections (2) and (3), the dispute still remains unresolved after 30 days;

(b ) after the 30 days has expired, 48 hours notice of the commencement of the strike or lockout has been given in the prescribed form to the Commissioner and the other parties to the dispute; and

(c) the strike or lockout conforms to -
(i) the provisions of this Part, and
(ii) any agreed rules regulating the conduct
of a strike or lockout, or (iii) any rules determined by the mediator in
terms of section 40(1)

Mr. Freund submitted that it is unthinkable that the lawgiver intended, before the right to strike could arise, that there should also have to be compliance, before a referral to the Commissioner was competent, with any procedural provisions contained in a collective agreement. On the facts, the dispute was referred by the Union to the Commissioner on 17^th June 2004, and on 22^ndJuly a notice of intention to strike on 26^th July was given by the

Union to the Commissioner and to the Company. Mr. Freund submitted that the Union had complied with the provisions of the Act and that the contemplated strike would therefore not have been an unlawful strike.

Section 39(l)(c)(i) provides that a party has the right to strike if the strike conforms to "the provisions of this Part." Sections 39 and 42 both form part of Part VI of the Act and Section 42(l)(a) provides that no person may take part in a strike if the strike is not in compliance with the provisions of Part VI of the Act or an agreed procedure.

It is clear, as set out above, that Clause 10 of the Agreement entered into between the parties constitutes "an agreed procedure". The provisions of Section 39(1) of the Act must be read with Section 42(1). My conclusion, as stated above, is that the correct interpretation of Section 42(l)(a)(i) is that the members of the Union could not take part in a strike until there had been compliance with Clause 10 of the Agreement. If in fact Clause 10 had not been complied with the contemplated strike would thus have been an unlawful strike.

Mr. Freund's alternative submission is that in fact the requirements of Clause 10 were complied with. Clause 10.1.6 provides, inter alia, that the parties may jointly agree to omit "any stage referred to in this clause." He submits that by reason of the facts to which I shall now refer, the Company had either waived compliance with the provisions of Clauses 10.1.2 to 10.1.4 or there was a tacit agreement between the parties to omit the stages contained in those clauses.

The facts of the matter are the following. In terms of Clause 5 of the Agreement a joint negotiation and consultation committee (JNCC) was established by the parties. This committee met on several occasions to discuss the terms of employment of the members of the appellant Union. Meetings were held (in the year 2004) on 18^th March, 25^th March, 14^th and 15^th April, 29^th April, 10^thand 11^th May, 26^th May, 10^th June and 16^th June. The position reached at the time of the meeting on 16^th June was that the Company had offered to the Union a cost of living adjustment in the amount of 6.5% whereas the Union had demanded an adjustment of 27%. Negotiations then broke down and it was

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accepted by both parties that a resolution of their dispute by
further negotiation at that stage was not possible. The Company
then proposed that Clause 10 of the Agreement be invoked. In its
founding affidavit the Company alleges that the Union's response
was that it wished to invoke Clauses 10.1.5 and 10.1.6, that it was
abandoning all other steps set out in Clause 10 and that it
considered that it had the right unilaterally to disregard the Clause
10 procedure. The Union's response thereto, set out in paragraph
24 of Chimbidzani Chimidza's affidavit, is the following:

"The allegation that the Respondent (the Company) wished to invoke the provisions of 10.1.5 is correct. However, the parties had themselves expressly or impliedly invoked the provisions of 10.1.6. The provisions of 10.1.6 is not mandatory but permissive and either party was free to invoke the same provisions should the other party not cooperate."

The Union also stated in its opposing affidavit that the proposal by
the Company to invoke Clause 10 "was absurd in that both parties
had long waived the provisions of Clause 10.1.1 to 10.1.4 by virtue
of the multiplicity of meetings not contemplated by Clause 10."
This statement formed the basis of Mr. Freund's submission.
Mr. Freund referred us to the first part of Clause 10.1 which reads as follows:

10.1. where at a meeting of the JNCC, the

parties fail to agree on a matter which was tabled for negotiation, the JNCC will adjourn to allow the parties time to consider each other's position.

10.1.1

The JNCC shall reconvene within 10 days of the first failure to agree in an attempt to resolve the disagreement.

10.1.2

In the case of a further failure to agree, the two parties shall prepare a joint statement setting out the nature of the disagreement and refer such joint statement to their principals.

In his submission Mr. Freund laid emphasis on the words "within
10 days of the first failure to agree" in Clause 10.1.1. His
submission was that Clause 10 was automatically invoked, and the
procedure set out in the clause automatically started to run, at the
very first meeting between the parties if there was any point on
which they failed to agree. He submitted further that at the
second meeting between the parties the provisions of Clause
10.1.2 had to be brought into operation if all issues between the
parties had not been resolved. This was not done in this case.
Instead, further meetings were held. This, Mr. Freund submits,
meant either that the Company had waived the requirement that
the procedure set out in Clause 10 be complied with, or that the

parties had tacitly agreed, in terms of Clause 10.1.6, that the further stages in Clause 10 be omitted.

Mr. Freund's submissions, as stated above, rely on a waiver by the Company or a tacit agreement between the parties.

In order to establish waiver the onus is on the party alleging a waiver to prove, on a balance of probabilities, that the other party, with full knowledge of its rights, decided to abandon those rights expressly or by conduct plainly inconsistent with an intention to enforce them. See e.g. HEPNER v ROODEPOORT -MARAISBURG TOWN COUNCIL 1962(4) S.A. 772 (AV at 778 E-F. In the case of BORSTLAP v SPANGENBERG EN ANDERE 1974 (31 S.A. 695 (A) it was held further that clear proof of an alleged waiver of rights is required especially where reliance is placed on a tacit waiver.

In the present case there was clearly no express waiver by the Company of its right to require that the provisions of Clause 10 be complied with. In fact at the meeting on 16^th June 2004 the

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Company expressly denied any intention to waive its rights and insisted that Clause 10 be implemented.
As regards an alleged implied agreement by the parties that the
various stages referred to in Clause 10 be omitted, this is
specifically denied by the respondent. Mr. Freund's submission is
that at the time of the 16^th June meeting, because several other
meetings had been held by them, the parties had already impliedly
agreed that the Clause 10 procedure would not be followed. This
was not the attitude taken up by the Union at the 16^th June
meeting. Passages from the minutes taken at that meeting
(unconfirmed but not disputed) reflect the attitude of the Union:

"Management explained that they proposed the invoking of Clause 10 of the Memorandum of Agreement not to prompt third party intervention. Instead adopted a legitimate process enshrined in the bilateral agreement allowing for a cooling off period. They added that doing so should provide an opportunity for the parties to re-think their positions. The Union raised its discomfort with the action to invoke Clause 10 of the Memorandum of Agreement, stating that it was a symptom of the need for third party intervention."

"They (the Union) stated that their interest was to avoid the application of Clause 10 of the bilateral agreement. However, given Management's insistence, they proposed that all initial steps in terms of the provisions thereof be waived."

"Management reiterated their position that the provisions of Clause 10.1.1 of the Memorandum of

Agreement be followed

The Union on the other hand stated that their action should not be understood to be a unilateral declaration of a dispute but contextualised it by putting emphasis on the point that they had made an effort for the parties to continue the negotiations without invoking Clause 10 of the agreement. However, given Management's insistence on the usage of the clause referred to above, they advanced the application of Clause 10.1.5 and 10.1.6."

It is clear from these passages that the Union proposed at the
meeting on 16^th June that the procedures set out in Clause 10 be
waived. The Union did not suggest that these procedures had
already been waived, which is the stand taken by the Union in its
replying affidavit and is the basis of Mr. Freund's submission.

It is also interesting to note that the Union referred to the continuation of negotiations without invoking Clause 10. Mr. Freund submitted that Clause 10 envisages the holding of 3 meetings over a period of 25 days. The fact that several meetings were held over a much longer period proves, he submits, that the parties had, in terms of Clause 10.1.6, impliedly agreed that the procedure set out in Clause 10 would not be followed. The Company's contention is that Clause 10 did not preclude the

possibility of negotiations being conducted and meetings being held prior to the coming into force of Clause 10, and that when it became clear to the parties that such negotiations were unlikely to result in an agreed resolution, it was open to either party to insist that the Clause 10 procedure be then implemented.

In passing, it may be noted that Clause 10.1.6 refers also to another possible agreement between the parties, namely an agreement to reduce or extend any time period referred to in Clause 10. If there was any implied agreement between the parties, to be inferred merely from the fact that several meetings were held, could it perhaps have been an implied agreement to extend the Clause 10 time periods, rather than an implied agreement to ignore altogether, or to omit, the procedure outlined in the Clause? However, it is the Company's submission that there was no tacit agreement to alter or omit the terms of Clause 10, and I now deal with this submission.

The purpose of the Act is not merely to legalise strikes but also to give to the parties ample opportunity to settle their differences through negotiation before having to resort to more drastic action.

Mr. Freund's interpretation of Clause 10 would have the effect of limiting the scope for negotiations between the parties to only three meetings before the declaration of a deadlock. This result would conflict with the spirit and intention of the Trade Disputes Act. This is conceded by Mr. Freund but he submits that that is what the parties apparently intended by their agreement.

We do not know from the papers what transpired at the JNCC meetings prior to the meeting of 16^th June and why the procedure set out in Clause 10 was not followed. It is, however, clear from what was said by the parties at the meeting of 16^th June, as reflected in the minutes of that meeting, that up to then the parties were still bargaining with one another with offers and counter-offers being considered by them and that no point of irreconcilable confrontation had been reached and thus a "failure to agree" within the sense and context of Clause 10.1.1.

In my opinion it could not have been the intention of the parties to the Agreement to limit negotiations to three meetings before implementing Clauses 10.1.3,10.1.4 and 10.1.5. What makes the

interpretation of the clause difficult, however, is the phrase "within 10 days of the first failure to agree" in Clause 10.1.1.

Clause 10 is headed "SETTLEMENT OF DISPUTES" and it provides that the JNCC will meet to resolve or settle those "disputes" which arise at JNCC level. In Clause 10.1 the phrase "Where at a meeting of the JNCC the parties fail to agree on a matter which was tabled for negotiation" is used. In Clause 10.1.3 the word "dispute" is again used.

It appears that the phrases "dispute" and "failure to agree" are used interchangeably. Where at a meeting proposals and counterproposals are submitted for the parties to consider it may be co<