Moloi K M and others v T M G Euijen (JA54/98) [1999] ZALAC 16 (12 August 1999)

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[1999] ZALAC 16
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Moloi and Another v Euijen and Another (JA54/98) [1999] ZALAC 16; [2000] 5 BLLR 552 (LAC); (1999) 20 ILJ 2829 (LAC) (12 August 1999)

15
IN THE
LABOUR APPEAL COURT OF SOUTH AFRICA
Held at
Johannesburg JA 54/98
In the
matter between
MOLOI
KM
FIRST APPELLANT
NATIONAL
ENTITLED WORKERS’ UNION
SECOND APPELLANT
and
T M G
EUIJEN
FIRST RESPONDENT
ASAHI
INVESTMENT CC
SECOND RESPONDENT
JUDGEMENT
NICHOLSON
JA
[1] The second respondent, who was represented by a member Ms Yen,
runs a Japanese restaurant in Rosebank, Johannesburg. Ms Yen,
acting
in her capacity as member of the second respondent, terminated the
services of first appellant, who was employed as a cashier,
on 15
November 1996. On 6 December the first appellant referred the dispute
about the fairness of her dismissal to the Bargaining
Council having
jurisdiction. On 17 January 1997 the said Council issued the
certificate to the effect that the dispute remained unresolved.
[2] The first respondent, at the time an advocate at the
Johannesburg bar and part-time commissioner with the CCMA,
arbitrated
the dispute on 18 April 1997 and gave an award in favour
of the second respondent, upholding the fairness of the dismissal.
[3] The first appellant reviewed the decision of the first
respondent in the Labour Court on a number of grounds. The first
appellant
was represented by Mr Maluleke, in the Labour Court, an
official of the second respondent, which is a trade union which is
registered
in terms of section 96(7)(a) of the Labour Relations Act,
No 66 of 1995 (‘the Act’). The review was dismissed and the
Labour
Court ordered the first and second appellants to pay the
costs of the review, jointly and severally, the one paying the other
to
be absolved.
[4] The dismissal by the second respondent arose from the absence
from work of first appellant on 3 November and thereafter from
6
November 1996, without valid reason. Although, initially, during the
arbitration there was some dispute about a short-fall in
the petty
cash box and some evidence concerning retrenchment, the absence from
duty was found to be the sole reason for dismissal.
The review
application sought an order setting aside the first respondent’s
award, an order that the Labour Court determine the
dispute and
costs.
[5] The first appellant challenged the findings of the first
respondent in the award and alleged that he acted ‘as [second
respondent’s]
defence counsel’ by advising second respondent,
not to rely on the short-fall in the petty cash. First appellant
also alleged
that first respondent was biassed, did not have an
open mind, conducted the proceedings in a ‘domineering and
high-handed’
way, and prejudged the matter by suggesting to second
respondent that it rely on ground of absenteeism alone.
[6] Perhaps the most serious allegation against the first respondent
was that he had a ‘secret meeting’, in the absence of
first
appellant and Mr Maluleke, with Ms Yen for ‘substantial minutes’
after the arbitration concluded, in the room in which
the
arbitration was heard. First appellant alleged that the secret
meeting ‘created the impression of [a] lack of impartiality
and
improper obtaining of an award.’ The first appellant went on to
say ‘[a]lthough on 16
th
April, 1997 the arbitration
award was reserved, I knew in my heart that I had already lost the
case due to,
inter alia
, this aforesaid meeting.’
[7] In his answering affidavit in the review the first respondent
denied that he acted ‘as [second respondent’s] defence counsel’
by advising second respondent, not to rely on the short-fall in the
petty cash. First respondent denied that he was biassed, and
did
not have an open mind, and that he conducted the proceedings in a
‘domineering and high-handed’ way, and prejudged the
matter by
suggesting to second respondent that it rely on the ground of
absenteeism alone. Little turned on these matters. He explained
that
he was clarifying the issues and it seems to me that there was every
advantage, from the first appellant’s point of view,
in having
fewer grounds for her dismissal.
[8] First respondent explained the circumstances of the ‘secret
meeting’ in his replying affidavit to the review application,
as
follows
“45 The applicant and her representative were the first to leave
the room in which the arbitration proceedings were conducted,
at the
conclusion thereof. At that stage I was packing my brief case.
46 I was in the process of leaving shortly thereafter, when Ms Yen
spoke to me. I can no longer remember exactly what she said.
I
remember saying to her that I did not wish to speak to her in the
absence of the other party. She then said she wished to ask
me a
question unrelated to the dispute, and that as she was a foreigner
she did not know who else to approach. Ms Yen then asked
me whether
I could recommend to her an attorney specialising in labour law to
deal with any future dispute with which she may be
faced. I wrote
down on a piece of paper the names of three reputable attorneys’
firms with labour law departments and I gave
this to Ms Yen. Ms Yen
then asked me which one I would recommend. I replied that she should
be guided by fee structure and convenience.
I then left.
47 If the [first appellant] had raised any concerns at the time
these erroneous impressions were manifesting themselves in her
mind,
they could and would have been easily and swiftly dispelled.”
[9] In reply to this first appellant states the following:
“50(1) It is a misconduct and gross irregularity for
commissioners to hold secret meetings in the absence of other
opposite
parties.
I now strongly believe that I
have lost my case mainly due to this secret meeting between the
deponent and Ms Yen.”
[10] It is clearly wrong to stigmatise the meeting as ‘secret’
in that it was known to the appellants. The content of any

conversation was not known. It is clear from the first appellant’s
reply that she does not dispute the explanation by first respondent
that the meeting could not have prejudiced the first appellant in
the arbitration award and that the conversation, which took place
between first respondent and Ms Yen, was entirely innocent. In the
absence of any evidence to challenge the explanation given by
first
respondent, one would have expected the first appellant to abandon
the review at that stage.
[11] The court a quo granted the costs order for three reasons:
firstly, as there was no relationship between the Appellant and
the
Second Respondent, secondly, because the first appellant attacked
the first respondent’s integrity and thirdly that her case
was
presented and argued on the basis that he was dishonest The union,
second appellant herein, was liable to pay the costs as
the
representative of the first appellant. The Labour Court granted
leave to appeal to this court on the costs award alone.
[12] Mr Maluleke, who appeared for both appellants, applied for
condonation for the late filing of the record, which was granted,
as
good cause was shown. He also applied to lead further evidence, but
it became apparent that, what he sought to introduce as
evidence,
was already on record. He then abandoned the application to lead
further evidence. With regard to the sole issue on appeal
namely the
propriety of the costs order, Mr Maluleke argued that section 162,
empowering the Labour Court to make orders of costs,
did not permit
a joint and several judgement, such as was made by the court a quo.
Section 162 reads as follows
“(1)
The Labour Court may make an order for the payment of costs,
according to the requirements of the law and fairness.
(2)
When deciding whether or not to order the payment of costs, the
Labour Court may take into account
(a)
whether the matter referred to the Court ought to have been referred
to arbitration in terms of this Act and, if so, the extra
costs
incurred in referring the matter to the Court; and
(b)
the conduct of the parties
(i)
in proceeding with or defending the matter before the Court; and
(ii)
during the proceedings before the Court.
(3)
The Labour Court may order costs against a party to the dispute or
against any person who represented that party in those proceedings
before the Court.”
[13] Section 161 of the Act provides that ‘in any proceedings
before the Labour Court, a party to the proceedings may appear
in
person or be represented only by a legal practitioner, a co employee
or by a member, an office bearer or official
of that party's
trade union or employers' organisation and, if the party is a
juristic person, by a director or an employee.’
[14] Mr Maluleke emphasised that the provisions of section 162(3)
provided that a costs order could only be made against a party
or
any person representing that party but not both. In other words
he submitted that the provisions were disjunctive and not
conjunctive.
It is clear that in a certain circumstances the word
‘or’ can mean ‘and/or’ and the context in which it appears
in legislation
is the determining factor. See
Bouwer v Stadsraad
van Johannesburg
1978 (1) SA 624
(W) at 632A
. Mr Maluleke drew
attention to the provisions of section 17(12) (a) of the present
Act’s predecessor, the Labour Relations Act,
No 28 of 1956, which
read as follows
“
The industrial court may in the performance of any of its functions
under paragraph (a) or (f ) of subsection (11), make an
order as to
costs according to the requirements of the law and fairness.
(b)
Any order as to costs in terms of paragraph (a) may also be made
against a trade union, employers' organization, office bearer
or official acting on behalf of or in any manner assisting any
person.”
[15] Sub section (12) in the form it stood at the time of its
final repeal was introduced by section 5 (h) of Act 83 of 1988.
The
use of the word ‘also’ appears to me to mean ‘in addition’
or ‘as well as’ and in that sub-section means that an
order
could be made against a party as well as a trade union or employers’
organisation. It seems clear that a joint order for
costs against a
representative and a party was competent under the old Act. The
point which is not entirely clear is whether the
legislature
intended changing the situation under the new Act.
[16] A union has locus standi to bring an application not only where
it is directly involved in the cause of action, for example,
where
the cause of action relates to a breach of a recognition agreement
or other agreement between the union and the particular
employer,
but also where it acts as the representative of its members. See
Amalgamated Engineering Union v Minister of Labour
1949 (4) SA 908
(A).
National Union of Metalworkers of SA & Others v
Standard Brass, Iron & Steel Foundry Ltd t/a Malleable Castings
(1989) 10
ILJ 951 (IC) at 957 G
.
[17] Where a trade union is not a party to the action or
application, it is clear under normal circumstances, that the only
basis
for an order of costs against it is where such are awarded
de
bonis propriis.
See
National Union of Metalworkers of SA &
Others v Standard Brass, Iron & Steel Foundry Ltd t/a Malleable
Castings
op cit 958 G. In
Shishava v West Rand Consolidated
Mines Ltd (1991) 12 ILJ 1382 (IC)
at page1386E - G Jacobs AM
said the following
“The
learned authors Cameron Cheadle & Thompson The New Labour
Relations Act at 193 suggest that my discretion [to order costs
against a union official] should be sparingly employed. They point
out that trade unions and employers' organizations may very
often,
through the deployment of their greater resources and experience,
ensure that individual litigants are not prejudiced by
their lack of
resources and that justice is done. Officials and office bearers
through their experience and expertise may
assist the court in the
proper presentation of evidence and argument and the curtailment of
proceedings. The requirements of fairness
would not be served by
penalizing the institutions or their officers for their mere
assistance and representation in unfair labour
cases. With all this
I agree. However, they go on to say that 'this discretion should be
exercised only in circumstances where
the trade union or employers'
organizations are the real litigants and the individual litigants
merely front as stratagems to
avoid a costs order'. While I agree
that those circumstances justify the exercise of discretion to award
costs I do not agree that
they are the only circumstances. In my
view circumstances where the trade union or employers' organization
conducts the litigation
in an improper manner also justify the award
of costs against it.”
[18] I leave aside the situation where a union abuses the court’s
process by litigating through employees, in cases which are
in
reality being fought for and on behalf of the union. Although there
are two appellants in this appeal, the original arbitration
related
to the first appellant (the employee) and the second respondent (the
restaurant) and the subsequent application for review
cited the
arbitrator as a first respondent. In the Numsa case cited above
Maritz AM held at page 958B-D
“I
believe that it is necessary in each matter to consider whether an
applicant union so appeared as a true party or whether it
appeared
in its representative capacity. The reason for the need to make
this distinction is, as will appear later, that there
is in our law
a different test to be applied before costs are granted against a
representative to when an award is made against
the parties.
In
the present matter the cause of action was the dismissal of the
second to fifth applicants, the joinder of the union caused no
additional costs to those which would have been occasioned the
respondent by the bringing of the action by the dismissed workers
and the union sought no relief for itself but only for the dismissed
workers.
Under
these circumstances I have no doubt that the first applicant
interceded on behalf of the dismissed workers and must be held
to
have acted not for itself but on behalf of the second to fifth
applicants.”
[19] Although Mr Van der Riet, who appeared for the first
respondent, argued in the review that the second appellant (union)
had
acted so closely with the first appellant that it had, so to
say, made the case its own, that was not the basis for the finding
of the Labour Court. Indeed there was no evidential basis for
holding that the union had any particular interest in the matter,
apart from assisting a member, who had been dismissed. The case did
not seek to establish any new principle, nor did it hold out
any
particular advantage for the union. The Labour Court held that the
second appellant was liable essentially on the basis that
Mr
Maluleke had attacked the integrity and honesty of the first
respondent to such an extent that costs
de bonis propriis
were
justified.
[20] Given the manner in which section 162 is framed I am of the
view that the general principle is that when making orders of
costs
the requirements of law and fairness are paramount. There may well
be cases where the losing party deserves a cost order
against it,
given the nature of the claim or the defence and the other relevant
factors. In addition there may be instances in
the same case where
the representative, be it a legal practitioner or the other persons
permitted by statute to represent a party,
behave or conduct the
case in a manner which justifies an order
de bonis propriis
.
In that instance it would be manifestly fair to grant a joint order
against the party and the representative. The Labour Court
has the
status of the High Court in its particular field. It would therefore
be anomalous that a body such as the Industrial Court
could make
such an order and yet the Labour Court could not.
[21] Sub-section (2)(b) provides that when deciding whether or not
to order the payment of costs, the Labour Court may take into
account the conduct of the parties in proceeding with or defending
the matter before the Court; and during the proceedings before
the
Court. This sub-section falls under the general rubric of fairness
in making cost awards and relates to parties alone. This
sub-section, in my view, indicates some of the circumstances when
costs orders will be justified. In stating that the Labour Court
may
order costs against a party to the dispute or against any person,
who represented that party in those proceedings before the
Court,
the sub-section is not expressly excluding a costs order against
both.
[22] The question which needs to be answered is whether it is a
necessary implication that an order against both is excluded. It
seems to me that, given the enhanced status of the Labour Court and
the desirability of joint costs orders in certain instances,
that it
would do an injustice to the paramountcy of the principle of
fairness of costs orders, to limit the section in the manner
suggested by Mr Maluleke. Such a narrow construction would limit
powers which the court would have if sub-section (3) was not

present. In my view the wording of sub-section (3) does not exclude
a joint order against a party and a representative.
[23] The sole remaining question is whether the order was justified.
Mr Maluleke was constrained to concede that the order against
the
first appellant was unassailable. The order against the second
appellant could only have been made on the basis that it was
justified as an order
de bonis propriis
.
[24] As I have mentioned section 161 of the Act provides that
representation may be by a legal practitioner or by ‘a co employee
or by a member, an office bearer or official of that party's
trade union or employers' organisation and, if the party is a
juristic person, by a director or an employee.’
[25] Legal practitioners have had the advantage of studying the law
and the principles of ethics. Hopefully the process continues.
They
are aware of the manner in which litigants and their representatives
should present their cases in court. They are subject
to discipline
by their professional bodies and in the final instance are subject
to removal from their profession if they cease
to be fit and proper
persons. Trade union officials, directors of companies or
co-employees have no such training, nor is their
appearance in court
or professional life subject to the same discipline.
[26] Non-lawyers must realise, however, that if they want to appear
in the Labour Court and indeed, this Court, they must represent
their clients and behave in a manner which is appropriate and
fitting. In this regard it is appropriate to recall the remarks of
Landman P in
United People's Union of SA on behalf of Mkala &
others v Fraser & Alexander Trailings (1994) 15 ILJ 1123 (IC)
at page 1128H- 1129E
“The
duties and the conduct expected from other persons such as trade
union officials, officials of employers' organizations,
labour
consultants and the like, have not been spelt out in any
authoritative manner. It seems to me desirable to make certain
observations in regard to at least two of the duties which govern
the conduct of the latter category of representatives in this
court.
The purpose of engaging a representative, whether that
representative appears as a benefit of the membership of an
organization,
or because the representative is remunerated for doing
so, is for the representative to assist a party to prepare his or
her case,
to place the relevant facts before the court, and,
although this is not entirely essential, to refer the court to
relevant authorities
and to advance reasons and make representations
in regard to the matter before the court. Essentially the purpose of
a representative
is to assist a party who by reason of a lack of
skill, lack of confidence, lack of knowledge or linguistic ability,
is unable to
present his or her case, or who simply desires such
representation. It must follow as a basic premise that a
representative of
the kind under discussion will not at law enjoy
any greater rights in regard to the court than that which the party
represented
would have enjoyed had that party appeared unaided. Two
of the duties flowing from this basic premise (there are of course
others,
but they need not concern us in this matter) are the
following:
1 The duty to assist the court in arriving at the truth of the
matter, which requires a party to act honestly in regard to their
dealings with the court.
2 To
interact with the court in a courteous, civilized manner and to
refrain from contemptuous conduct.
The
duty to act honestly in regard to the court will of course include
some of the following. The party or his or her representative
must
refrain from perpetrating a fraud on the court, and must refrain
from misleading the court or placing false evidence before
the
court.”
[27] Costs
de bonis propriis
are awarded against legal
practitioners in cases which involve delinquencies such as
dishonesty, wilfulness or negligence in a
serious degree. See
Cilliers Law of Costs
(2 ed) para 10.25.
Shishava v West
Rand Consolidated Mines Ltd (1991) 12 ILJ 1382 (IC)
at page1386B
NUMSA v Standard Brass
op cit at 958. Mr Van der Riet quite
fairly and properly in my view conceded that the second appellant
through its official Mr
Maluleke did nothing to justify a costs
order
de bonis propriis
. It cannot be shown that Mr Maluleke
acted dishonestly in his dealings with the court nor did he indulge
in contemptuous conduct.
He perpetrated no fraud on the court, nor
did he mislead or place false evidence before the court. His conduct
did not smack of
wilfulness or negligence in a serious degree.
[28] It will be recalled that the first appellant alleged that the
first respondent acted ‘as [second respondent’s] defence
counsel’ and was biassed, did not have an open mind, conducted
the proceedings in a ‘domineering and high-handed’ way, and
prejudged the matter. There was also mention by first appellant of
the ‘secret meeting’. Once the first respondent explained
the
circumstances, Mr Maluleke did not introduce false evidence to
contradict the allegations and in effect accepted them.
[29] Mr Maluleke argued on the facts as put up by first respondent
that it was misconduct and a gross irregularity for commissioners
to
hold secret meetings in the absence of other parties. This legal
conclusion was not justified on the evidence disclosed in
the
affidavits.
[30] The above allegations were made in affidavits by the first
appellant. Whatever suspicions one might have as to whether she
independently conceived them or was aided and abetted by Mr
Maluleke, the fact remains that she signed the affidavit and took

responsibility for them. Mr Maluleke can be criticised for carrying
on with the review when the first respondent explained the

conversation which took place at the ‘secret meeting’ and the
other matters complained of. In the absence of any countervailing
evidence he should have counselled the first appellant against
proceeding with the review. But a review application is a complex
matter especially when it involves allegations of bias and
irregularity. He showed an error of judgement which should be
censured
but does not deserve an order of costs
de bonis
propriis
.
[31] I am of the view that the costs order was not properly made
where it included the second appellant. As the second appellant
is
not entitled to a costs order with regard to the appeal no such
order can be made.
[32] In the result the appeal succeeds in part. The order of the
court a quo is altered to read
“The
costs of the application for review are to be paid by the
applicant.”
__________________
NICHOLSON
JA
Date of hearing: 20 May 1999
Date of judgement: 12 August 1999
Representative for Appellants: Mr Maluleke of Newu
Attorneys for Respondents: Cheadle Thompson and Haysom
Counsel for Respondents: Mr van der Riet.
This
judgement appears on the internet http://www.law.wits.ac.za