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[2019] ZAGPPHC 380
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Mantsina v Director -General: Department of Labour and Others (12689/2019) [2019] ZAGPPHC 380 (13 August 2019)
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
(1)
REPORTABLE:
NO
(2)
OF
INTEREST TO OTHER JUDGES: NO
(3)
REVISED.
CASE NO: 12689/2019
In
the matter between:
SALVINAH
TENIA MANTSINA
APLLICANT
and
THE
DIRECTOR-GENERAL: DEPARTMENT OF LABOUR
FIRST
RESPONDENT
THE
GOVERNMENT EMPLOYEES' PENSION FUND
SECOND
RESPONDENT
JUDGMENT
KUBUSHI
J
[1]
This application was set down on the
opposed motion roll for the determination of costs occasioned by the
withdrawal of the application
instituted by the applicant in the
urgent court.
[2]
The applicant was injured on duty during
the time when she was employed by the Department of Health and
Welfare as a nurse. The
injury was occasioned by a motor vehicle
collision when the ambulance in which she was tending to patients in
transit was involved
in a collision. She, as a result suffered
serious injuries which resulted in her being declared permanently
disabled and, therefore,
medically unfit to continue with her nursing
duties.
[3]
The applicant subsequently applied for
compensation at the Workmen's Compensation Fund in terms of section
27 of the Workmen's Compensation
Act 30 of 1941 ("WCA")
(now the Compensation for Occupational Injuries and Diseases Act 130
of 1993 ("COIDA")).
Section 100 (2) of COIDA provides for
transitional issues between WCA and COIDA as sucli all actions done
under a provision of
COIDA are deemed to have been done under WCA.
[4]
An award for compensation was granted to
the applicant by the Compensation Commissioner on the basis of a 37%
permanent disablement.
In terms of section 39 (1)
(d)
of WCA the applicant was awarded a
monthly pension payable during her lifetime. The plaintiff's grieve
is that since the award was
made on 5 September 2008 she has not been
able to access the funds nor has she received any payment in terms
thereof.
[5]
Initially the applicant wanted to
contest the findings of the Compensation Commissioner on the basis of
37% permanent disablement
which she was not satisfied with, but
because of her financial position and need for medical care she
decided to go along with
the Compensation Commissioner's findings.
[6]
However, despite numerous attempts by
the applicant to claim the pension, even assisted by her daughter at
times, she was unsuccessful.
When all attempts to access the funds
yielded no benefit, the applicant opted for the legal route. The
applicant approached an
attorney who wrote letters to the first and
second respondents, respectively. Such letters went unanswered and
this prompted the
launch of the current proceedings.
[7]
The first letter sent on 7 February 2019
set out the factual background of this matter and a request for
urgent payment of the award
to the applicant. On 12 February 2019,
and having received no feedback on the letter of 7 February 2019 from
either the first or
second respondent, the applicant's attorney sent
a further letter requesting urgent feedback and in this letter
informing that
if a response is not received by no later than 15
February 2019, the applicant would be left with no option than to
approach the
urgent court for relief.
[8]
Despite these two requests, the first
and second respondents failed, respectively, to communicate with the
applicant's attorneys.
The applicant then, on 25 February 2019,
instituted an urgent application for payment of all the monies held
by the second respondent
under the compensation award. The urgent
application was served on the first respondent on 25 February 2019.
The first respondent
on receipt of the application filed its notice
of intention to oppose the application. After receipt of the notice
of intention
to oppose, the applicant's attorney sent another letter
to the first respondent requesting that they enter into settlement
negotiations
in order to avoid costs of litigation.
[9]
The first respondent, instead of
responding to the applicant's letters, filed its answering affidavit
which was three days out of
time. A response to the letters was,
however, received from the second respondent on 8 March 2019
informing the applicant that
the money sought by the applicant was in
fact being administered by the Government Pensions Administration's
Agency, which is an
entity separate from the first respondent. Based
on the response from the second respondent, the applicant saw it fit
to withdraw
the application. On 12 March 2019, when the parties
appeared in court, the applicant removed the application from the
roll and
the issue of costs regarding the first respondent was
reserved. The parties are now before court for the determination of
the reserved
costs.
[10] The crux is
whether the first respondent is entitled to costs under the
circumstances of this
case.
[11] The argument
by the applicant is that the respondent is not entitled to the costs
of suit because:
firstly, her case contains a constitutional
dimension in that she was requesting money she was entitled to from
the state. In this
regard, the applicant relied on the decision in
Biowatch Trust v Registrar, Genetic
Resources and Others
[1]
wherein the Constitutional Court held that the constitutional
dimension of a case needs also to be taken into account in the
consideration
of an award for costs. Secondly, the conduct of the
respondents (particularly as government institutions) in failing to
timeously
reply to her correspondence, led to her instituting action.
She had to withdraw the action only after the second respondent
responded
to her query and informing her about the correct
institution to approach.
[12]
The applicant, thus, suggests that
because of the constitutional dimension of the case she should not be
burdened with a cost order
and that each party must be ordered to pay
own costs.
[13]
The first respondent concedes that the
applicant's case has a constitutional dimension but contends that in
this instance the difference
is that the award the applicant is
looking for has already been granted. The applicant instituted action
against the wrong institution
since there is no relationship between
the first and second respondents. As regards the conduct of the first
respondent in failing
to respond to the applicant's correspondence,
it is the first respondent's argument that the applicant did not give
it enough time
within which to respond. According to the first
respondent, correspondence in the Department of Labour, because of
its size, takes
a long time to be processed. The applicant was
supposed to have given the first respondent adequate time within
which to respond
to the correspondence instead of rushing to court.
[14]
The general rule is that the party
withdrawing an action is liable, as an unsuccessful litigant, to pay
the costs of the proceedings.
The court, however, retains the
discretion to deprive the successful party of her/his costs. In the
exercise of its discretion
the court should have due regard to the
question whether, objectively viewed, the applicant acted reasonably
in launching the main
proceedings but was subsequently driven to
withdraw it in order to save costs because of facts emerging for the
first time, or
because the relief was no longer necessary or
obtainable. In an appropriate case the court should also have due
regard to the constitutional
nature of the litigation and the public
interest.
[2]
[15]
It has become trite that in litigation
between the government and a private party seeking to assert a
constitutional right, ordinarily,
if the government loses it should
pay the costs of the other side, and if the government wins, each
party should bear its own costs.
[16]
It has been held that it is the State
that bears the primary responsibility for ensuring that both the law
and the state conduct
are consistent with the Constitution. If there
should be a genuine, non-frivolous challenge to the constitutionality
of a law or
of State conduct, it is appropriate that the State should
bear the costs if the challenge is good, but if it is not, and then
the
losing non-state litigant should be shielded from the costs
consequences of failure. In this way responsibility for ensuring that
the law and the State conduct are constitutional is placed at the
correct door.
[3]
[17]
am of the view that this is an
appropriate case where the principle in
Biowatch
should apply. It is not in dispute
that the present case has a constitutional dimension and that in such
cases the applicant as
a non-state litigant should be shielded from
the cost consequences of having lost the case. I do not think that
the first respondent's
contention that this case should not fall
under the
Biowatch
principle
only because the award had already been granted, has substance. From
the evidence of the applicant it is clear that she
had no knowledge
of the correct organisation to approach hence the letters written to
the first and second respondent. If the response
to those letters
came in time the applicant would have approached the correct
organisation.
[18]
Besides, the first respondent's argument
in opposition to the application of the
Biowatch
principle in this instance, does
not, in my view, do away with the fact that the applicant's case had
a constitutional dimension.
Biowatch,
in my opinion, was meant precisely
for cases like this where the non-state litigant would lose her case,
for whatever reason. The
principle finds application as long as the
matter at issue had a constitutional dimension.
[19]
I hold, therefore, that this case falls
squarely within the parameters of the
Biowatch
principle and that the applicant, as
the losing party, must be shielded from cost consequences of losing
the case. The appropriate
cost order in the circumstances is that
each party should bear its own costs.
[20]
I, as result, make an order that each
party pay own costs.
E.M. KUBUSHI
JUDGE OF THE HIGH COURT
APPEARANCES:
Counsel
for Applicant:
Adv. T. J. Jooste
Instructed
by:
Albert Hibbert Attorneys
Counsel
for First Respondent:
Adv. C. B. Kubeka- Manyelo
Instructed
by:
State Attorneys' Office, Pretoria
Date
heard:
14 May 2019
Date
of judgment:
13 August 2019
[1]
2009 (6)
SA 232 (CC).
[2]
Erasmus: Superior Court Practice 2ed Vol 2 pDl-0551- 552.
[3]
Biowatch, above, at page 246 para 23.