Court throws out BMWU case

BAME PIET
Staff Writer | Tuesday July 8, 2008 00:00

Justice Tapiwa Marumo struck down the case on the grounds that the application was flawed as no attempts were made to describe other parties. 'The deponent is silent on the remaining 677 other applicants, and has not sought to establish a relationship, if any, between the first applicant and 677 other applicants. For the record, therefore, we do not know who the applicants are, nor whom they are represented by,' she said.

The judge added that even attorney Patson Yamikene, who appeared for the applicant, failed to pick up on the vital defect. 'In addition, the founding affidavit has not described the respondents nor established any relationship between the applicants and the respondents. Reference is made to 'employees', who have not been identified for the record. This is a fundamental flaw in the evidence of the applicants because in the absence of this information the court and the respondents do not know whom they are dealing with,' said Marumo.

She said it was clear that someone who has no legal training prepared the application. She, however, said in the interest of justice, she had set aside strict rules and procedure to give the applicants the opportunity to review their case, and to 'file fresh and properly crafted papers', be it by statement of case or by notice of motion. 

'I am strengthened in my decision, by the fact that the applicants are now ably represented by an attorney, who should be able to provide legal advice going forward in the matter. I shall also put the parties on strict terms regarding the management of any further case filed because of the urgency that is alleged,' she cautioned. The applicants were given the opportunity to reinstitute the case before the 25th of this month and that each party shall bear its own costs in the application.

BMWU is seeking that it (the court) declare that: the respondents did not follow the proper procedure in demobilizing their employees; order that all applicants be given six months compensation; direct that the respondents pay each applicant relocation allowance of P5,000; order and declare that the respondents did not consult with the employees and their trade union before a decision was taken to terminate their employement; declare that the demobilisation constitutes unfair retrenchment and it is in breach of the applicants' contracts; and that the respondent be ordered to pay the costs of the application.

The third and fifth respondents are contractors appointed on the project and the labour force was recruited from rural areas in the vicinity of the project. Hatch Africa (Pty) Ltd acted as an intermediary between the contractors and their employees and was responsible for seeing to it that the contractors complied with the laws of Botswana and that the employees working on the project were not offered employment on terms less favourable than those set out in the Project Labour Agreement (PLA).

In their responding affidavit the respondents, among other things, expressed shock at the immediate suspension of the Activox project, and that it was beyond their control, as they had not foreseen it.