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2024
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[2024] ZAGPPHC 134
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Babu and Others v Khosa Chief Executive Officer, SADPMR and Others (45342/21) [2024] ZAGPPHC 134 (16 February 2024)
IN THE HIGH COURT of south africa
GAUTENG DIVISION, pretoria
CASE NUMBER: 45342/21
(1) REPORTABLE: [
Y
/N]
(2) OF INTEREST TO OTHER JUDGES: [
Y
/N]
(3) REVISED: [
Y
/N]
(4) Signature:
Date: 16/02/2024
In
the matter between:
MANGALISO
MAYIBUYE BABU First
Applicant
PATEKA
NOMAPHELO MAKA Second
Applicant
SIBUSISO
ANDREA MANDLAZI Third
Applicant
and
CECIL
KHOSA (KHOSA) First
Respondent
CHIEF
EXECUTIVE OFFICER, SADPMR
ABIEL
MNGOMEZULU Second
Respondent
THE
CHAIRPERSON OF THE BOARD, SADPMR
THE
SOUTH AFRICAN DIAMOND AND Third
Respondent
PRECIOUS
METALS REGULATOR
JUDGMENT
ASL VAN WYK AJ
[1] This application was set down for hearing
before me to determine the relief sought by the First to Third Applicants and
the
issue as regards to costs.
[2] The question of law in this case relates
to the Applicants former employees of the Third Respondent- rights to claim
the
relief herein in circumstances where they instituted proceedings in this
Court after they invoked their statutory remedies by instituting
proceedings in
the CCMA. In determining this matter and the appropriate scale of costs that
should follow in this matter, it is
important to briefly consider the facts of
this matter.
[3] Initially the Applicants claimed the
following relief in their notice of motion:
3.1
First Respondent is directed
to convene an internal appeal process in respect of the dismissal of First,
Second, and Third Applicants
within 30 days of this order.
3.2
The Chairperson of the
internal appeal to be a member of the Pretoria Bar with at least 15 years
experience practicing Labour
Law, selected through the auspices of the Pretoria
Bar via a joint letter from the attorneys of the Applicants and Respondents.
3.3
Pending finalization of the
internal appeal, Applicants are reinstated to their previous positions with
full pay and employment
benefits retrospective to the date of their dismissal,
being 25 June 2021.
3.4
Costs of suit on
attorney/client scale.
3.5
Further and or
alternative relief.
[4] It is common cause that the First to
Third Applicants were dismissed from their employment with the Third Respondent
on
the 25
th
of June 2021.
[5] It is common cause that the First to
Third Applicants referred unfair dismissal disputes to the CCMA on 23 July 2021
and
the matter was set down for conciliation/ arbitration on the 20
th
of August 2021.
The Third Respondent thereafter
objected to the conciliation/ arbitration disputes in terms of Rule 17 of the
CCMA Rules.
[6] Thereafter, the First to Third Applicants
continued to participate in the CCMA proceedings and instituted an application
for
consolidation of their respective unfair dismissal disputes before the CCMA
on 1 September 2021. The Third Respondent objected to
the consolidation of the
First to Third Applicants application on grounds which are not relevant in
these proceedings.
[7] It seems that this application was
issued on 8 September 2021 and served on the First to Third Respondents on 6
October
2021.
[8] After the First to Third Respondents
served their answering affidavit on the Applicants attorney of record on 3
November 2021,
the Applicants essentially distanced themselves from the relief
claimed in the notice of motion.
[9] On 22 November 2021, the Applicants
attorney of record L Mbanjwa Incorporated dispatched an email to the
Respondents
attorneys of record- Nishlan Moodley Attorneys wherein the
following was recorded:
9.1
We refer to the above urgent application and advise as follows: -
9.1.1 The CMA (sic) unfair
consolidated case of our client will be heard on the 30
th
of November
2021.
9.1.2 In the circumstances the
prayer for granting of an internal appeal will no longer be competent in the
High
Court and
we give an undertaking that same will not be pursued
.
9.1.3 The matter will therefore be
set down
mainly on costs and the competency of the declaratory sought will
be relevant in so far as award of costs is concerned
.
9.1.4 In the circumstances kindly
confirm that your client is no longer proceeding with the urgent application
not later
than 11H00 today, the 22 November 2021, failing which we will proceed
to draw our clients opposing affidavit.
We trust that you find the above in order and thank you.
[10] During argument I was requested by Ms
Mbanjwa to consider this matter in its entirety, notwithstanding the clear and
unequivocal
undertaking that Applicants will not pursue the relief claimed in
the letter dated 22 November 2021. I decided to consider this
matter as
requested because the relief claimed by the Applicants remains alive.
[11] I am of the view that the determining
question in this matter is not whether this Court has jurisdiction to preside
on the
rights of affected parties flowing from the termination(s) of a
contract(s) of employment but rather whether it would be competent
for this
Court to preside on this matter in circumstances where the Applicants
unilaterally and effectively
waived or relinquished
their rights to an internal appeal process
by referring their respective
unfair dismissal disputes to the CCMA for determination.
[12] The First to Third Applicants referred
their unfair dismissal disputes months before the institution of these
proceedings.
The determining question that I referred to in paragraph 11
supra
has a direct and substantial impact and effect on the exercising of my
discretion as regards to an award for costs and the scale
occasioned thereby.
[13] I am however in agreement with Ms
Mbanjwa legal representative acting on instructions of the Applicants- that
this Court
may very well be vested with jurisdiction to consider enforcement of
contractual claims flowing from the termination of a contract
of employment.
The aforesaid principle was determined and canvassed in the matter of
Baloyi
v Public Protector and Others 2021(2) BCLR 101 (CC).
However, I am of
the view that this is not the issue for determination before me.
[14] Irrespective of whether Applicants
distanced themselves from the relief sought in their notice of motion on 22
November
2021, the relief claimed remains incompetent under the prevailing
circumstances. I am of the view that the moment the First to Third
Applicants
instituted or commenced proceedings in the CCMA,
they at the very least
waived or relinquished their rights to an internal appeal process
with
the Third Respondent- which was afforded to them. I was informed during
argument that the matter(s) before the CCMA concluded
and the Applicant(s)
instituted proceedings in the Labour Court.
[15]
In paragraph 86 of the Respondents answering affidavit the following was said:
The Applicants have indeed waived
any purported right to an appeal should it have existed when they lodged their
disputes with the
CCMA on 23 July 2021.
[16] As mentioned before, I concur with the
Respondents that the Applicants waived their rights to demand or claim internal
appeal
hearings and/or commencement of such internal appeal proceedings as from
23 July 2021. Objectively viewed, I am satisfied that the
Applicants at the
very least through their conduct
abandoned their respective rights to
demand or claim internal appeal hearings under these circumstances.
[17] In the matter of
Lufuno Mphaphuli and Associates (Pty) Ltd v Andrews and Another
2004 (9) SA 529
(CC)
Kroon J held the following
considering the question of waiver:
Waiver is first and foremost a matter of intention; the test
to determine intention to waive is objective, the alleged intention
being
judged by its outward manifestations adjudicated from the perspective of the
other party, as a reasonable person. Our courts
take cognizance of the fact
that persons do not as a rule lightly abandon their rights. Waiver is not
presumed; it must be alleged
and proved; not only must the acts allegedly
constituting waiver be shown to have occurred, but it must also appear clearly
and
unequivocally from those facts or otherwise that there was an intention to
abandon it, whether expressly or by conduct plainly consistent
with the
intention to enforce it. Waiver is a question of fact and is difficult to
establish.
[18] It follows that the institution of
these proceedings in this Court was incompetent since inception thereof. The
First to
Third Applicants elected willingly to utilize the statutory remedies
available to them under the
Labour Relations Act 66 of 1995
and advanced and
prosecuted their alleged unfair dismissal claim(s) within the framework and
jurisdiction of the CCMA and Labour
Court.
[19] Considering the facts of this matter
and the approach adopted by the Applicants, I am of the view that special
considerations
exist to award a punitive costs order under these circumstances
against them.
[20] In
Nel v Waterberg
Landbouwers Kooperatiewe Vereeniging
1947 AD 597
at
607
the
Appellate Division said:
The
true explanation of awards of attorney client costs not expressly authorized by
Statute seem to be that, by reason of special
considerations arising from the
circumstances which gave rise to the action or from the conduct of the losing
party, the court
in a particular case considers it just, by means of such an
order, to ensure more effectually that it can do by means of a judgment
for
party and party costs that the successful party will not be out of pocket in
respect of the expense caused to him by the litigation.
[21] In consequence I make the following
order:
21.1
The application is dismissed.
21.2
The First, Second, and Third
Applicants are ordered to pay the costs of this application on an attorney
and client scale, jointly
and severally, the one paying the other to be
absolved.
ASL VAN WYK
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
Appearances:
For
the Applicant: ADV O BEN-ZEEV
Instructed
by: NISHLAN MOODLEY ATTORNEYS
For
the Respondent: Ms L MBANJWA
Instructed
by: L. MBANJWA INCORPORATED ATTORNEYS
Date
of Judgment: 16 February 2024