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[2019] ZAECPEHC 3
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South African Teachers Union v Klub 24 and Others (3095/2018) [2019] ZAECPEHC 3 (19 February 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH
Case
No.: 3095/2018
Date
Heard: 8 February 2019
Date Delivered:
19 February 2019
In
the matter between:
SOUTH
AFRICAN TEACHERS’
UNION
Applicant
and
KLUB
24
First
Respondent
FBSAOU
Second Respondent
GERHARD
BURGER
Third Respondent
MAURITZ
DE
VRIES
Fourth Respondent
JUDGMENT
GAJJAR
AJ:
Introduction
[1]
The applicant, the South African Teachers’ Union (“SATU”),
a duly registered union, brought an urgent application wherein it
sought the following relief:
1.1
an interdict interdicting the respondents, and/or their
members/associates/sympathisers
from disrupting, in any manner, the
proceedings at the 23 National Principals’ Symposium (“the
symposium”) which
was to be held on 9-12 September 2018 at the
Nelson Mandela Metropolitan
University, Port Elizabeth,
which disruption was to include, but not
limited to, the interruption of any of the speakers at the symposium.
1.2
Costs against the third and fourth respondents.
[2]
Although final relief was sought, a rule
nisi
with immediate
effect was issued against the respondents on 8 September 2018 which
was returnable on 25 September 2018.
[3]
On the return day, by agreement between the parties, the rule
nisi
was discharged and the issue of the costs was reserved.
[4]
The only issue thus remaining for determination is costs.
[5]
The first respondent is Klub 42, and the second respondent, Forum vir
Bekommerde SAOU-Lede (“FBSAOU”) which translated into
English reads “Forum for Concerned SATU Members”.
They are voluntary associations. The third and fourth
respondents, Gerhard Burger (“Burger”) and Mauritz de
Vries (“De Vries”) are members of SATU as well as Klub 42
and FBSAOU.
[6]
Burger and De Vries, both school principals, oppose the matter.
They have sought that SATU pay the costs of the application on the
scale as between attorney and client and SATU in turn has sought
costs against them.
Background
[7]
SATU is one of the biggest teachers’ trade unions in South
Africa
with approximately 37 000 members with its main objective
being to promote and protect the interests of all its members.
[8]
During the course of November 2017 a dispute arose between a
non-member
of SATU, a Michael Pashut (“Pashut”) in
respect of his business not being accepted as a sponsor by SATU for
its 2018
symposium.
[9]
Pashut became disgruntled with SATU’s decision and, on its
version,
started a smear campaign described by SATU as being “of
epic proportions” against it, its affiliated organisations and
SATU’s president, Dr Louis Swanepoel (”Swanepoel”)
and its Chief Executive Officer, Mr Chris Klopper (“Klopper”).
[10]
Pashut publicly accused Swanepoel and Klopper of financial
mismanagement, corruption, theft
and the like. When Burger and
De Vries raised concerns about the management of SATU, SATU
associated them with Pashut on
the basis of an email dated 24 May
2018 from Juan Rossouw, also a school principal, wherein he
said the following:
“
I
have no doubt in my belief that a bomb is going to burst in PE.
And it WILL happen in the presence of the media. Wonderful
platform. Just wait ...”
[11]
In light of the accusations made against it by Pashut, SATU on its
own accord appointed
retired Judge Hartzenberg together with two
forensic auditors to investigate the allegations. The
Hartzenberg report
was released during November 2018.
The
actions of Burger and De Vries that led to the application
[12]
Burger and De Vries being disgruntled with SATU’s senior
management formed Klub 42
and FBSAOU as platforms to voice their
concerns against SATU.
[13]
It is common cause that the following correspondence was addressed by
Burger and De Vries
to SATU’s offices:
13.1 On
23 August 2019 Burger, as chairperson on behalf of Klub 42 and on
24 August 2018
De Vries on behalf of FBSAOU
addressed letters to SATU
representatives requesting that they be afforded
a time slot at
the symposium to debate the alleged mismanagement
maladministration and
malfeasance. These requests went unanswered.
13.2 On
4 September 2018 Burger addressed an email to a Gordon Lancaster, the
Mpumalanga provincial chairperson
of SATU, with the
subject matter being Open debate Symposium.
13.3
On 5 September 2018 De Vries addressed an email to Swanepoel
wherein he implored SATU to agree that a time slot be allocated
during
the symposium for question and answers to spare him public
embarrassment.
[14]
During the course of argument, Ms
Morgan
, counsel for SATU,
and Ms
Bands
, counsel for Burger and De Vries, correctly
accepted that the emails of 4 and 5 September 2018 from Burger and De
Vries respectively
assume considerable importance in respect of
SATU’s claim that it had a reasonable apprehension of harm.
The relevant
portions of those emails bear repetition.
[15]
The relevant portion of Burger’s email of 4 September 2018 as
translated into English
reads as follows:
“
From:
Gerhard Burger [mailto:
legdaar@vodamail.co.za
]
Sent: 04
September 2018 11:07am
To:
gordon@laerskoolbergland.co.za
Subject: Open
debate Symposium
“
As Club 42 we
want to assure you that we absolutely do not want to disrupt the
Symposium, but we want to further assure you that
we will NOT allow
the speakers free reign during the Symposium.”
[16]
The relevant portions of the letter of 5 September 2018 from De Vries
to Dr Swanepoel reads
as follows, as translated into English:
“
Dear Dr
Swanepoel
FBSAOU
/ REQUEST FOR A TIME SLOT DURING NATIONAL SYMPOSIUM 2018
1.
We addressed the request more than a week ago to you (Friday
2018/08/24 12:48).
2.
..., FBSAOU be given an opportunity to address the symposium
about aspects that was set out in the correspondence from FBSAOU to
SATU as well as that to individual members
3.
...
4.
More and more SATU members share their concerns and the
symposium is the ideal opportunity to have a question and answer
session
...
5.
...
6.
It is now unavoidable that you as chairperson of
SATU must allow an opportunity for questions and answers to spare you
possible
public humiliation.
7.
It is strongly suggested that the full Standing Committee must
be present. They are first answerable to their respective
provinces
in respect of transparency.
Friendly
greetings
Mauritz
De Vries
FBSAOU
– Convenor
05/09/2018”
The
urgent application and the subsequent correspondence
[17]
The quoted portions of the aforesaid emails together with Burger’s
and De Vries’
failure to have provided SATU with a written
undertaking sought by it that they would not disrupt the symposium
caused SATU to
approach this court on an urgent basis seeking the
relief as aforesaid.
[18]
SATU contends that the emails of 4 and 5 September 2018 must be read
in the context of
the following:
18.1
The symposium is not a union structure/meeting in accordance with its
Constitution to deal with union related matters;
18.2
that it does not and cannot prescribe to school principals with whom
they do business in procuring goods and services for their schools;
18.3 it
came to be in possession of a screenshot of an email sent on 24 May
2018 sent from the principal of the Goodwood Park Primary School
addressed to Burger, Pashut and copied to De Vries.
[19]
In my view,
the question that arises is whether or not the contents of the emails
of 4 and 5 September 2018 from Burger and De Vries
respectively was
sufficient to cause reasonable apprehension of irreparable harm on
the part of SATU to have approached this court
for urgent final
relief. The test for reasonable apprehension is objective.
[1]
[20]
SATU’s case is that premised on its reading of the two
mentioned emails it reasonably
apprehended that Burger and De Vries
would come to the symposium and raise false allegations against it
which would damage its
good name and reputation coupled with their
failure to provide the written undertaking sought.
[21]
It bears mentioning that on 6 September 2018 SATU addressed a letter
to Burger and De Vries
recording that their request for a time slot
was declined and it was also stated that they await the outcome of
the formal enquiry
(the Hartzenberg Enquiry). SATU also noted that in
the event that further discussion was necessary same could be entered
into following
the release of the report.
[22]
Neither Burger nor De Vries responded to SATU’s letter of 6
September 2018.
[23]
On 7 September 2018 SATU’s attorneys addressed a letter to
Burger, De Vries and two
others, a Mr J Smuts and Ms R du Toit
seeking their written undertaking that the members of Club 42 and/or
FBSAOU will in my way
disrupt the proceedings during the symposium
more particularly that none of the speakers at the symposium will be
interrupted or
hindered during their respective presentations.
The undertaking was sought by 11:00 on 8 September 2018.
[24]
Neither Burger nor De Vries provided the undertaking sought, which
prompted the urgent
application.
[25]
I accept that both Burger and De Vries had notice of the
application. SATU’s
email of 8 September 2018 transmitted
to Burger and to De Vries’ email addresses is significant.
It stated that in
the event that their written undertaking not to
disrupt the symposium is given, it would not seek costs against
them. This
email was sent at 15:33 some two and a half hours
before the urgent application was heard. By then SATU had
already incurred
the costs of preparing and finalising the
application.
[26]
On 11 September 2018, three days after the interdictory relief was
granted and in the midst
of the ongoing symposium (it having
commenced on 9 September and was due to conclude on 12 September
2018), the respondents proposed
that the matter be settled on the
basis that the rule
nisi
be discharged with no order as to
costs.
[27]
SATU’s attorney replied on 13 September 2018 recording that the
contents of the respondents’
attorneys letter was referred to
its client for “further instructions”. On 14 September
2018 SATU’s attorney
recorded its client’s rejection of
the respondents’ proposal.
[28]
In my view, the perceptions of the respective individuals clouded
their ability to engage
maturely. Of significant importance is
that the representatives of SATU on the one hand, and Burger and De
Vries on the other,
claimed to be acting in the interests of
their
organisation, SATU. In this regard Burger’s and De Vries’
request for a time slot for a question and answer session
to debate
the affairs of SATU during the symposium, albeit ill-informed to the
extent that the symposium was not the appropriate
forum, cannot, in
my view, be said to have been motivated by malice but rather a
desperate desire to have genuine concerns addressed
and debated.
By contrast SATU, was driven by process in that it did not view the
symposium to be the correct forum to air
and address the respondents’
concerns about its internal and operational matters.
[29]
It is not clear why SATU did not suggest to Burger and De Vries that
they submit their
questions and/or further queries in writing.
In my view, doing so could probably have placated Burger and De
Vries.
I am mindful of the fact that to a limited extent
SATU attempted to do so in its letter of 7 September 2018 to Burger
and
De Vries.
The
principles governing costs
[30]
It is trite
that as a general rule the successful party is entitled to its costs
and this rule should be departed from where there
are good grounds
for doing so.
[2]
[31]
The
determination of costs falls within my discretion which must be
exercised judicially and must be exercised on grounds upon which
a
reasonable person could have come to the conclusion arrived at.
[3]
[32]
Moral and
ethical considerations may enter into the exercise of the court’s
discretion.
[4]
[33]
In
Ferreira
v Levin NO and Others
[5]
the Constitutional Court said the following in respect of costs:
“
The Supreme
Court has, over the years, developed a flexible approach to costs
which proceeds from two basic principles, the first
being that the
award of costs, unless expressly otherwise enacted, is in the
discretion of the presiding judicial officer and the
second that the
successful party should, as a general rule, have his or her costs.
Even this second principle is subject
to the first. The second
principle is subject to a large number of exceptions where the
successful party is deprived of his or
her costs. Without attempting
either comprehensiveness or complete analytical accuracy, depriving
successful parties of their
costs can depend on circumstances such
as, for example, the conduct of parties, the conduct of their legal
representatives, whether
a party achieves technical success only, the
nature of the litigants and the nature of the proceedings.”
[34]
Ms
Morgan
submitted that as SATU obtained the relief it sought
it must be viewed as the successful party and is thus entitled to its
costs.
Measured against this submission I must weigh up that
the rule
nisi
was discharged and that both Burger and De Vries
remain members of SATU.
[35]
Ms
Bands
submitted that not only should the general rule be
departed from but that I should order attorney and
client
costs against SATU on the following grounds:
35.1
absence of urgency;
35.2
absence of well-grounded apprehension of irreparable harm;
35.3
the invitation on 11 September 2018 to settle the matter.
[36]
Regarding urgency, I am of the view that as Burger and De Vries did
not give their written
undertaking as sought by SATU by 15:33 on 8
September 2018, SATU cannot be criticised for approaching court on an
urgent basis.
[37]
Whether or not SATU had made out a case to obtain final relief is, in
my view, open to
doubt. However, given the conclusion which I
have reached, it is not necessary to consider this issue further.
Conclusion
[38]
Considering
all of the above I shall take the course which Swain J (as he then
was) adopted in
Natal
Zoological Gardens (Pty) Ltd and Others v Ezemvelo KZN Wildlife
[6]
,
and in the exercise of my discretion, I am of the view that this is a
case where neither of the parties should be ordered to pay
the others
costs. As the court said in
Natal
Zoological Gardens
.
[7]
“
Although the
applicants did not possess a reasonable apprehension of irreparable
injury, this is not a case where they should be
ordered to pay the
respondents’ costs, due regard being had to the fact that they
were substantially successful, in the sense
set out above.
Likewise, this is not a case where the respondents should be ordered
to pay the applicants’ costs, particularly
as it is clear that
the refusal to furnish an undertaking, was dictated by concern for
the welfare of the animals housed in the
Zoo and Lion Park.”
[39]
Both
parties, in my view, were motivated by a singular concern in this
matter, that being the welfare and integrity of the organisation,
SATU. Fairness demands that that be reflected in the costs
order.
[8]
[40]
Accordingly, I make the following order:
40.1
Each of the parties are ordered to pay their own costs.
G
J GAJJAR
ACTING
JUDGE OF THE HIGH COURT
Appearances:
For
Applicant:
Adv M Morgan instructed by Boyens Attorneys c/o
Erasmus Inc, Port Elizabeth
For
Third and
Adv I Bands instructed by Randell and Associates, Port
Fourth
Respondent:
Elizabeth
[1]
See Pickles v Pickles
1947 (3) SA 175
(W) at 179-180; National
Council of the SPCA v Openshaw
[2008] ZASCA 78
;
2008 (5) SA 339
(SCA) at 347D-E and
397C;
[2]
Pretoria Garrison Institutes v Danish Variety Products (Pty) Ltd
1948 (1) SA 839
(A)
[3]
Herbstein & Van Winsen, The Civil Practice of the Supreme Court
of South Africa, 5
th
edition page 954-955 and the authorities cites there.
[4]
See: Mahomed v Nagdee
1952 (1) SA 410
(A) at 420H
[5]
[1996] ZACC 27
;
1996 (2) SA 621
(CC) at para
[3]
[6]
Saflii case no. 5945/09 (KZN) 13 August 2009
[7]
Supra
at para [23]
[8]
See Rhodes University v Students Representatives Council
[2017] 1
All SA 617
(ECG) para 157