About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Labour Appeal Court
SAFLII
>>
Databases
>>
South Africa: Labour Appeal Court
>>
2020
>>
[2020] ZALAC 21
|
|
Kopanong Local Municipality and Another v Mantshiyane (JA29/2019) [2020] ZALAC 21; (2020) 41 ILJ 1907 (LAC) (28 May 2020)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
no: JA29/2019
In
the matter between:
KOPANONG
LOCAL MUNICIPALITY
First Appellant
THE
MUNICIPAL MANAGER OF
KOPANONG
LOCAL MUNICIPALITY
Second Appellant
and
T
S MANTSHIYANE
Respondent
Heard:
21 May 2020
Delivered:
28 May 2020
Summary:
Costs---Punitive costs in the labour dispute guided by fairness and
equity----fairness dictates that a party be given an
opportunity to
make representations----in the absence of such representations costs
order contravening the principle of natural
justice---Appeal upheld.
Coram:
Waglay JP, Davis JA and Murphy AJA
JUDGMENT
MURPHY
AJA
[1]
The first appellant, the Kopanong Local Municipality, and the second
appellant, its
municipal manager, appeal against a costs order made
by the Labour Court (Rhoodie AJ) ordering the second appellant and
the appellants’
attorneys to pay costs
de bonis propriis
in
an application brought by the respondent to enforce a prior judgment
of the Labour Court (Prinsloo J). The appeal is with the
leave of the
Labour Court and is unopposed.
[2]
The respondent was employed by the first appellant until his
dismissal on 30 July
2009. The respondent referred an unfair
dismissal dispute to the relevant bargaining council for conciliation
and arbitration.
On 24 January 2012, the arbitrator issued an award
ordering the first appellant to reinstate the respondent and to pay
him back
pay.
[3]
The first appellant made application to the Labour Court for a review
of the arbitration
award. On 9 February 2016, Prinsloo J dismissed
the application for review for lack of prosecution, made the
arbitration award
an order of court in terms of section 158(1)(c) of
the Labour Relations Act
[1]
(“the LRA”) and ordered the costs of the application in
terms of section 158(1)(c) of the LRA to be paid
de
bonis propriis
by the first appellant’s attorneys. The learned judge made the
costs order on the basis that the attorneys had been grossly
negligent in the prosecution of the review and had squandered
taxpayers’ money. Leave to appeal against this order was
refused
by the Labour Court and by this court on petition.
[4]
After the respondent was reinstated, a dispute arose regarding the
amount payable
to him as back pay. The respondent obtained actuarial
advice indicating that he was owed R1 909 064 as salary for
the
period 30 July 2009 to 30 June 2013, and
mora
interest in
the amount of R1 341 807.
[5]
On 25 November 2016, the first appellant paid an amount of R1 173 860
(being
R1 981 833 less R807 972 deducted in accordance
with a tax directive from SARS) into the respondent’s bank
account. The respondent was not satisfied with this payment and
instructed his bank to return the money to the first appellant.
[6]
In June 2017, the respondent made an application to the Labour Court
for the enforcement
of the judgment of Prinsloo J.
[7]
On 20 July 2018, in an
ex tempore
judgment of four paragraphs,
Rhoodie AJ ordered the appellant to pay the capital amount it had
previously tendered, interest on
the outstanding capital amount from
the date 1 March 2012 until 26 November 2016, and interest on the
outstanding interest amount
until the date of payment. There is no
appeal or cross-appeal against these orders.
[8]
As mentioned at the outset, Rhoodie AJ awarded costs
de bonis
propriis
and the appeal is restricted to this order. The relevant
part of the order reads:
‘
Costs
on a punitive scale of attorney own client is to be paid by both the
attorneys of record for the First Respondent and the
Municipal
Manager as the Second Respondent, jointly and severally, the one
paying the other to be absolved.’
[9]
The learned acting judge set out the rationale for the punitive costs
award as follows:
‘
It
is trite that an outstanding award will accrue interest and the
applicant employer should at least have endeavoured to pay or
to
calculate the due amount, but it has to date failed to do even the
most basic of exercises in determining what that interest
should be.
As
for the legal advice, I note that the same attorneys that were
slapped with a punitive cost order
de bonis propriis
is still
driving this matter. They were on record as late back as February
2014. As stated by Judge Prinsloo in her earlier judgments
in this
matter. I am equally of the opinion that costs should not be
shouldered by the taxpayer. The municipal manager, as the
Second
Respondent in this matter, should be fully aware of what happened in
the past, and what had been the consequence of the
legal advice that
had been obtained to date in this matter.’
[10]
One cannot fault the learned judge’s sentiments. Too often
organs of state and municipalities
engage in futile, unworthy or
pointless litigation which is wasteful of taxpayers’ money.
Personal costs orders and awards
of costs
de bonis propriis
are
useful means of disciplining officials and attorneys who act in this
fashion. However, section 162(1) of the LRA provides that
the Labour
Court may only make an order for the payment of costs, according to
the requirements of the law and fairness. An order
for personal costs
against a person acting in a representative capacity (be it as an
attorney or as an official) is inherently
punitive. It is
extraordinary in nature and should not be awarded without following
the precepts of fairness. While the municipal
manager was a party to
the proceedings, the attorneys were not. Therefore, in the absence of
any prayer for a personal costs order
or one
de bonis propriis
,
as in this case, it was incumbent on the court when considering such
orders to have acted fairly by first inviting the second
appellant
and the attorneys to make representations as to why such an order
should not be made. There is no evidence that the Labour
Court did
that in this case. The second appellant and the attorneys have been
denied natural justice in accordance with the principle
of
audi
alteram partem
, with the result that the costs order cannot
stand.
[11]
Despite sharing the misgivings of Rhoodie AJ, we consider that
justice and fairness will be adequately
served in this instance by
substituting the impugned order with one requiring the first
appellant to pay the costs of the respondent’s
application to
the Labour Court on a punitive scale.
[12]
In the result, the appeal is upheld, paragraph 5 of the order of the
Labour Court dated 20 August 2018
is set aside and substituted with
an order directing the first respondent in the application (the first
appellant on appeal) to
pay the costs of the application on the
attorney and client scale.
__________________
JR
Murphy
Acting
Judge of Appeal
I
agree
__________________
B
Waglay
Judge
President
I
agree
________________
DM
Davis
Judge
of Appeal
APPEARANCES:
FOR
the appellant:
Adv T Molokomme
Instructed
by Maduba Attorneys
FOR
THE RESPONDENT:
No appearance
[1]
Act
66 of 1995.