IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: JR252/20
In the matter between:
NGAKA MODIRI MOLEMA DISTRICT
MUNICIPALITY Applicant
and
SOUTH AFRICAN LOCAL GOVERNMENT BARGAINING
COUNCIL, NORTH WEST DIVISION First Respondent
LINDOKUHLE DLAMINI N.O. Second Respondent
OLERATO PEARL PHIRI Third Respondent
Heard: 11 May 2022 and 13 June 2022
Delivered:22 January 2024 (This judgment was handed down electronically by circulation to the parties’ legal representatives by email, publication on the Labour Court website and release to SAFLII. The date and time for handing-down is deemed to be 10h00 on 22 January
2024.)
REASONS FOR ORDER
PHEHANE, J
[1] This application served before me on 11 May 2022 and on 13 June 2022. On
11 May 2022, I postponed the application to 13 June 2022 and gave
directions as to the filing of pleadings and ordered the third respondent’s legal
representative to pay the wasted costs of the postponement de bonis propriis.
On 13 June 2022 , I handed down an order inter alia, reinstating the review
application, granting condonation for its late filing and the late filing of the
applicant’s notice in terms of rule 7A(8)(b), reviewing a nd setting aside the
2
arbitration award and remitting the matter to the first respondent to be heard
de novo.
[2] On 25 May 2022, the third respondent sought reasons for the order handed
down on 11 May 2022. The brief reasons follow below.
[3] Things came to a head at the hearing on 11 May 2022, with Mr. Scholtz for
the third respondent, arguing on heads of argument submitted by himself on
the morning of the hearing, several points to the effect that the review
application was not properly befor e the Court , was defective and had in any
event lapsed. (The heads of argument do not bear the Court stamp and I take
the view therefore, that they are not properly filed with the Registrar of this
Court).
[4] Adv. Phalane for the applicant submitted that the conduct of the third
respondent amounts to an ambush in circu mstances where the applicant had
sent the set down notice to Scholtz Attorneys on 6 May 2022 enquiring what
their attitude would be on the day of the hearing in the absence of filing an
answering affidavit in the review application. There was no reply from Scholtz
attorneys. This, subseque nt to correspondence from this Court on 17 April
2022 enquiring about the answering affidavit . Had Scholtz attorneys
responded with their current submissions as early as 6 May 2022 , the
applicant would have responded to the submissions and would have
reconsidered its position as it was of the view that the review application
would be heard on an unopposed basis. Adv. Phalane submitted that Scholtz
attorneys must pay the wasted costs de bonis propriis in light of their conduct
in litigating the dispute and serving the third respondent’s heads of argument
containing their contentions an hour before the Court proceedings began
without any regard for the orderly conduct of Court proceedings.
[5] Mr. Scholtz maintained that the email address to which this Court sent
correspondence on 17 April 2022 belonged to an employee who had since left
the firm. He did not deny being a ware of this email correspondence and the
correspondence by the applicant of 6 May 2022. Mr. Scholtz submitted that
3
even if the third respondent filed its heads of argument containing the issues
raised therein 2 days prior, it would not have made any difference as the
applicant would not have brought an application to reinstate the review
application within 2 days. How Mr. Scholtz was certain of this, remains a
mystery. Mr. Scholtz was present in Court and had the opportunity to make
representations as to why this Court should not order him to pay the wasted
costs de bonis propriis and he failed to do so.
[6] Due to the conduct of Scholtz attorneys having no disregard for the orderly
conduct of the Court proc eedings and making callous statements without any
basis regarding how the applicant would have responded had it been aware
before the hearing of the issues as contained in the third respondent’s heads
of argument, I exercised my discretion to make an order as to the payment of
costs de bonis propiis against Mr. Scholtz.
[7] It is apparent that the request for reasons is solely due to the costs order
against Mr. Scholtz and had nothing to do with the third respondent. I say this
as the third respondent complied with the Court order, in that an answering
affidavit was filed in the reinstatement application on 30 May 2022 as per the
Court order of 11 May 2022. I point out that in paragraph 2.1 of the third
respondent’s answering affidavit in the reinstatement application, the
deponent mentions that I upheld the third respondent’s preliminary point that
the review had lapsed and granted an order that the review application had
lapsed. This is misleading. Mr. Scholtz was in Court when the order was
made and he is well advised to refrain from making misleading statements
and to advise his clients properly when affidavits are settled.
M. T. M. Phehane
Judge of the Labour Court of South Africa