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2024
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[2024] ZALCJHB 179
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Ntuli v Welz and Others (JR 1924/19) [2024] ZALCJHB 179 (22 April 2024)
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
Not Reportable
case
No:
JR
1924/19
In
the matter between:
XOLANI
NTULI
Applicant
and
MATTHEW
FLORIAN
WELZ
First Respondent
WARREN
FRANSMAN
Second Respondent
CATHERINE
RENEE
HIND
Third Respondent
PENELOPE
MPHO
OSIRIS
Fourth Respondent
CLICKS
RETAILERS
Fifth Respondent
In
Re:
CLICKS
RETAILERS
Applicant
and
TSHEPANG
VINCENT
MADIKWE
First Respondent
XOLANI
NTULI
Second Respondent
THE
COMMISSIONER FOR CONCILIATION,
MEDIATION
AND
ARBITRATION
Third Respondent
NOMSA
MBILENI
N.O
Fourth Respondent
Heard
:
12 March 2024
Delivered
:
These reasons were handed down electronically by emailing a
copy to the parties on 22 pril 2024 which is deemed to be the date of
delivery thereof.
Summary:
Reasons for an order in which the court made an order
inter
alia
that
“there is no order for costs”
in
relation to which, reasons are specifically sought by the Applicant.
Awarding of costs at discretion of Court.
REASONS FOR ORDER
SHABA, AJ
Introduction
[1]
This is an
ex parte
contempt application, (contempt
application) the rule
nisi
of which, was to be discharged on
the return date of 12 March 2024, and has since been extended to 28
May 2024. The Court rendered
its order on 12 March 2024.
[2]
The Applicant subsequently requested
reasons for part of the order, which states: “There is no order
of costs” which
reasons follow after outlining the material
facts hereunder.
Material facts
[3]
The Applicant filed an
ex
parte
contempt application on 21
November 2023 which was set down for 1 February 2024.
[4]
Makhura J ordered the return date of 12
March 2024 for the discharge of the rule
nisi
ordered on 1 February 2024 for the
Fifth Respondent (and its directors), to show cause why they should
not be found guilty of contempt
of court for failing to comply with
the order of this court dated 22 July 2019.
[5]
The matter served before me on the return
date of 12 March 2024 in which both parties were legally represented.
[6]
The Applicant, without any prior notice, to
the Court, applied for postponement from the bar. The Fifth
Respondent opposed the postponement.
Both parties asked for costs in
their favour.
[7]
The nub of the Applicant’s
submissions in support of its application for postponement from the
bar was that it was not ready
to proceed as the Fifth Respondent
served it with voluminous documents, through e-mail only, on Saturday
of 9 March 2024 at 10:47,
before the return date of 12 March 2024.
Further that it did not have time to read and consider such documents
and that the Fifth
Respondent’s documents did not constitute an
affidavit as directed in paragraph 2 of Makhura J’s order of 1
February
2024.
[8]
The voluminous documents referred to by the
Applicant above, turned out to be the Fifth Respondent’s notice
of opposition
to the Applicant’s
ex
parte
contempt application, service
affidavits, confirmatory affidavit related thereto, notice of set
down of the Fifth Respondent’s
application for reconsideration
and discharge of the
ex parte
order as well as the supporting affidavit related thereto, which
somewhat contained parts of the Fifth Respondent’s explanation
and/or response to the Applicant’s contempt application. All
these Fifth Respondent’s documents, were simultaneously
filed
by the Fifth Respondent’s on Monday (11 March 2024), the day
before the return date of 12 March 2024.
[9]
The Fifth Respondent further submitted
additional unfiled heads of arguments that only came to my attention
on the rule
nisi
return date of 12 March 2024.
[10]
The Fifth Respondent made submissions in
opposition to the Applicant’s application for postponement from
the bar and persisted
with its reconsideration application which also
contained, its opposition to the Applicant’s contempt
application.
[11]
After a lengthy debate between the parties’
legal representatives, which continued for the better part of the
afternoon of
12 March 2024, the Fifth Respondent, subsequently
indicated that it was withdrawing its application for the
reconsideration of
the order made by Makhura J on 1 February 2024.
Further that it will only proceed with its opposition to the
Applicant’s
contempt application based on and only limited to
those parts of its reconsideration documents that, dealt with its
specific opposition,
to the Applicant’s contempt proceedings.
[12]
Despite the Fifth Respondent having indicated its readiness to
proceed limited to only
the above parts of its documents, relating to
its opposition to the Applicant‘s application, the Applicant,
declined to proceed
with its application of contempt on the day,
citing
inter alia
that, the Fifth Respondent must serve it
with a stand-alone explanatory affidavit that is envisaged in
paragraph 2 of the order
by Makhura J of 1 February 2024.
[13]
The Applicant further submitted that it wanted to exercise its right
to reply to the Applicant’s
explanatory affidavit as envisaged
in paragraph 2 of the order by Makhura J above and that the Fifth
Respondent must subsequently
serve it with such a stand-alone
explanatory affidavit that is not combined with or contained in its
reconsideration application.
[14]
It was against the above background that the Court made the following
order on 12 March
2024:
‘
1.
The rule
nisi
issued on 1 February 2024 is extended to 28 May
2024.
2.
The Respondents are to file a non-combined explanatory affidavit
given the withdrawal
of their application for reconsideration, in
compliance with paragraph 2 of the rule
nisi
issued on 1
February 2024.
3.
There is no order of costs.’
Reasons
for the order are limited to “
No order for costs
”
[15]
I now turn to the reasons for the aforementioned order as further
hereunder, suffice to
state upfront that: “No order for costs”
in the context of the order made, means the Court, exercised its
discretion
not to award costs to either of the two parties.
[16]
Section
162(1) of the Labour Relations Act
[1]
(LRA) confers discretion to this Court, to make orders of costs based
on the requirements of the law and fairness.
[17]
The Court has exercised its discretion judicially, based on the above
key requirements
for the awarding of costs by not awarding costs to
either of the two parties for the sitting on the return date of 12
March 2024
as, the manner in which both parties dealt with the matter
on 12 March 2024, contributed to the contempt application not being
proceeded with on that day.
[18]
The Applicant sought postponement from the bar without prior notice
to Court on 12 March
2024 for reasons referred to in
inter alia
paragraph 7 herein above, which postponement, was inherently granted
as, the contempt application, could not be proceeded with
on that
day.
[19]
The
operational word “may” in paragraph 2 of the
ex
parte
order by Makhura J on 1 February 2024 aforementioned and Clause
13.2(b) of the Practice Manual Directive
[2]
,
simply suggests that the Respondents had to be present in Court on 12
March 2024 or file affidavits to explain their conduct and
that if
they do file affidavits, such fact, will not excuse them from being
present in Court.
[20]
Paragraph 2 of the
ex parte
order by Makhura J, further
required the Respondents to explain their conduct by affidavits if
any, on
the date of hearing
or
before
. This can only
suggest that the Respondents are not obligated to file their
explanatory affidavit only before the return date but
may do so on
the return date of the hearing.
[21]
The above being said, the Fifth Respondent, in any event, withdrew
its reconsideration
application during the sitting on 12 March 2024
and was ready to give the Court the benefit of its explanation for
non-contempt,
with or without an affidavit for its conduct. The
Applicant declined to proceed with its contempt application, under
the circumstances
and, insisted that it be furnished with an
explanatory affidavit that is not combined with the Fifth
Respondent’s reconsideration
application.
[22]
Given the above, nothing much should turn on the fact that the Fifth
Respondent served
its reconsideration application that contained its
opposition to the Applicant’s contempt application, on 9 March
2024 and
filed it on 11 March 2024, as it, in any event, withdrew
such reconsideration application and was ready to proceed with the
explanation
for its conduct on the return date of 12 March 2024. The
Applicant declined to have such an explanation proceeded with,
without
a stand-alone explanatory affidavit that, was not part of the
Fifth Respondent’s reconsideration application.
[23]
The Applicant on its own version, did not consider or attend to,
whatever the Fifth Respondent
served and filed between the 9
th
and 11
th
of March 2024 even though it had a working day of
Monday (11 March 2024) before the sitting on the return day of 12
March 2024.
[24]
Even if the Fifth Respondent did not
withdraw its reconsideration application, there was no way in which,
the Court, at least on
12 March 2024, could have considered any such
application and heads related thereto, given their non-timeous
service, filing and
furnishing to Court. Needless to mention that
such a reconsideration application, was not properly before the Court
on such date
given its non-timeous delivery (service and filing) as,
the 12
th
of March 2024, was the return date of the rule
nisi
issued by Makhura J on 1 February 2024 and not for the sitting of the
Fifth Respondent’s reconsideration application.
[25]
Despite the Fifth Respondent having withdrawn its reconsideration
application on 12 March
2024 and accordingly, having indicated its
readiness to proceed with the explanation of its conduct against
contempt or proceed
with its opposition to the Applicant’s
contempt application based on some parts of the content of its
reconsideration application,
the Applicant declined to proceed on the
return date, indicating inter alia that it was not obligated to go
through the contents
of the Fifth Respondent’s reconsideration
application and identify parts therein that, are relevant to its
contempt application
and deal with such parts, without a stand-alone
explanatory affidavit that was not part of such reconsideration
application.
[26]
Even if, it
were to be accepted that the Applicant, inherently, succeeded with
its postponement application from the bar and that
such postponement
was not as a result of time constraints in the late afternoon of 12
March 2024 as the contempt application, could
not be proceeded with
to discharge the rule
nisi
on that day, it is axiomatic that the rule of practice that cost
follow the result does not automatically apply to this Court
[3]
as, it is necessary to always strike a balance between not unduly
discouraging workers, employers (including employer organisations)
and unions from bringing their disputes to court and allowing parties
to defend themselves.
[27]
The
Constitutional Court has once more set the standard that the rule
that costs against unsuccessful litigants automatically follow
the
result, is not applicable in Labour Court matters in
Union
for Police Security and Corrections Organisation v South African
Custodial Management (Pty) Ltd and others
[4]
that:
‘
[24]
The established rule in litigation that costs follow the result does
not apply in labour matters. This
Court has made that abundantly
clear on a number of occasions, not least in its often-quoted
decision in
Zungu
[5]
.
Despite this, however, there is now a concerning pattern of this
Court being requested to overturn decisions of the Labour Court
and
the Labour Appeal Court applying the general rule that costs follow
the result, without more, to matters before those courts.
I deem it
vital, then, to clarify in some detail in this judgment that it is
not merely out of overzealous generosity on this Court’s
part
that we say that costs do not follow the result in labour matters. We
are constitutionally and statutorily obliged to do so.’
[28]
It is for all reasons herein above that this Court exercised its
discretion judicially
and fairly by, not awarding costs to either of
the parties for the sitting on the return date of 12 March 2024.
[29]
Both parties are not unsuited by the contempt application having not
been heard on 12 March
2024 as the rule
nisi
of 1 February
2024 has since been extended to 28 May 2024 by this Court’s
order of 12 March 2024.
Conclusion
[30]
In the premises, after considering papers and arguments made by the
parties, I made an
order
inter alia
that “There is no
order for costs” on 12 March 2024, in relation to which
reasons, have been sought by the Applicant
and furnished herein
above.
S.M. Shaba
Acting Judge of the
Labour Court of South Africa
Appearances:
For
the Applicant:
Ndyebo
Jongwana of NJ Attorneys
Instructed
by:
For
the Respondent:
Adv
Andrew Redding SC
Instructed
by:
Bradley
Conradie Halton Cheadle
[1]
Act
66 of 1995, as amended.
[2]
Practice Manual of the Labour Court of South Africa, effective 1
April 2013.
[3]
M
ember
of the Executive Council
for Finance, Kwa
Z
ulu
-Natal & another v Dorkin NO & another
(2008)
29
ILJ 1707
(LAC)
;
[2008]
6 BLLR 540
(LAC)
at
para 19C
.
See also Ethekwini Municipality v Hadebe
and
others
[
2016
]
8 BLLR 745
(LAC)
;
[2016] ZALAC 14
at 755.
[4]
[2021] 12 BLLR 1173
(CC); (2021) 42 ILJ 2371 (CC) at para 24
.
[5]
Zungu
v
Premier of the Province of KwaZulu-Natal
[2018]
ZACC 1
; 2018 (39) ILJ 523 (CC).
See
also South African Commercial, Catering and Allied Workers Union and
Others v Woolworths (Pty) Limited
[2018] ZACC 44
;
2019 (3) SA 362
(CC).