Mahlangu, J and others v Femco (Pty) Ltd (JA35/98) [1999] ZALAC 18 (1 September 1999)

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[1999] ZALAC 18
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Mahlangu, J and others v Femco (Pty) Ltd (JA35/98) [1999] ZALAC 18 (1 September 1999)

10
IN THE
LABOUR APPEAL COURT OF SOUTH AFRICA
HELD AT
JOHANNESBURG
CASE NO JA 35/98
In the
matter between
J
MAHLANGU AND OTHERS
APPELLANTS
and
FEMCO
(PTY) LTD
RESPONDENT
JUDGEMENT
Nicholson
JA
[1] 104 ex-employees of the respondent brought proceedings in the
Industrial Court in terms of section 46(9) of the Labour Relations
Act, 28 of 1956, for their reinstatement, after being retrenched. A
further 15 employees were added to the number of applicants for
the
said relief, after the consolidation of a case involving employees,
retrenched by the respondent at the same time. The matter
was opposed
by the respondent. After hearing evidence, the Industrial Court
dismissed the application and made no order as to costs
on 30
November 1997.
[2] A notice of appeal was filed on 24 March 1998 - out of time -
and there is an application for condonation for the late filing
thereof. The application for late filing of the notice of appeal is
supported by an affidavit of Sarah Ramaswe in which she states
that
all the applicants in the court a quo, presumably the 119 I have
mentioned, indicated to her that they were desirous of appealing
against the judgement of the Industrial Court and that an attorney
Mr Joep Joubert of the firm Joubert and Carstens was approached
and
he informed Miss Ramaswe of the right of appeal and the costs. Miss
Ramaswe contacted numbers of the erstwhile applicants and
collected
various sums of money to finance the appeal which are set out in
annexure “B” to her affidavit. This annexure contains
94 names
and the amounts paid which vary from R300 to R100, totalling R 24
950.
[3] The respondent has perused the list of 94 names and can only
link 42 to the original 119 applicants, who brought the application
in the Industrial Court. Evidently many of the contributors were not
appellants but well-wishers. The respondent’s attorneys
of record
wrote to the attorneys mentioned above, namely Joubert and Carstens,
on 16 March 1999, explaining that it was not clear
who the
appellants in the case were, given the facts outlined above. By
letter dated 24 March Joubert and Carstens wrote to respondent’s
attorneys and indicated that all the applicants in the court a quo
were appellants, apart from one or two who had subsequently
died.
These were not named.
[4] The rules regulating the conduct of the proceedings of the
Labour Appeal Court were published in GN R1666 of 14 October 1996,
and have been amended by Government Notice R962 in Government
Gazette 18142 of 11 July 1997, with effect from 11 July 1997, and
Government Notice 1101 in Government Gazette 19196 of 4 September
1998, with effect from 4 September 1998. Rule 6(1) of these rules
provides that a power of attorney authorising a representative to
prosecute the appeal or the cross appeal must be delivered
within 10 days of the delivery of any notice of appeal or
cross appeal. This sub-rule applies to appeals from the
Industrial
Court. See
Leonard Dingler (Pty) Ltd v D.D. Ngwenya
1999 (5) BLLR 431(LAC)
at 435D-E
. There are no powers of
attorney in respect of any of the alleged appellants in this case.
There is no explanation for the failure
by the ‘appellants’ to
file any such powers of attorney and no application for condonation
in regard thereto. There is no suggestion
that the list containing
the names of persons who contributed to the costs of the projected
appeal, constitutes a power of attorney.
The list contains no
signatures and does not authorise anyone to prosecute the appeal.
Moreover, many of the persons named on the
list were not applicants
in the industrial court.
[5] The point taken by the respondent in the present appeal is not
merely directed at the non-filing of powers of attorney. Mr
van
Aswegen argued on its behalf that there was no indication of any
authorisation by any of the litigants to the attorneys to
act on
behalf of any of them. Authority is customarily proved by a power of
attorney. Without a power of attorney there may nevertheless
well
be, and normally is, authority to act. Where it appears from the
papers that there is authority to act (although there is
no proof
thereof in the form of a power of attorney) or the adversary does
not dispute the authority of a person to conduct proceedings
on
behalf of a litigant, the court would more easily grant condonation
of the defaulting party’s failure to comply with the rule
relating
to the filing of a power of attorney. There appears to be
uncertainty in the profession about the filing of powers of
attorney
in the Labour Appeal Court. A perusal of the files in the
registrar’s office indicates that no powers of attorney have
been
filed in a large number of appeals, not only from the industrial
court but also from the labour court. In the matters where
no powers
of attorney have been filed and the point has not been taken by
either of the parties the court has required that powers
of attorney
be filed and an application for condonation be brought. I
understand that a practice note will be issued by the Acting
Judge
President in this regard. In this matter no power of attorney has
been filed at any stage nor has condonation been sought.
The point
has been taken and we are therefore obliged to decide it.
[6] In the High Court the failure to file a power of attorney has
led in the past to a divergence of opinion in the Transvaal and
the
Cape Provinces. These cases must, however, be approached on the
basis that at the time no written rule of court governed the
position. In the Transvaal the failure by an appellant to file a
power of attorney has led to the appeal being struck off the roll.
See
Solomons v Allie
1965 (4) SA 755
(T)
and
Combrinck v
Maritz,
1951 (4) SA 288
. In the latter case Price J traced the
practice in the Transvaal court at page 290 B - 291B from
Howe v
Church
1914 TPD 611
and
Gamsu v Kotze,
1914 TPD 294
. In
the last mentioned case the Court stated that it was very
undesirable that any laxity should be shown in this practice and
the
result might be that difficult questions of liability for costs
might arise. An attorney may quite honestly set down an appeal
for
argument in the belief that he has authority from his client to do
so. The case may be heard and the appeal may be dismissed
with
costs. The respondent may then seek to recover his costs from the
appellant to be met with the objection that the appellant
had not
authorised the appeal to be proceeded with. The respondent would
then have to consider whether the attorney was liable
for those
costs and he might find himself unable to bring home the liability
either to the attorney or the client.
[7] This approach was followed in
Dollar v New Eersteling Gold
Mining Co Ltd
1927 TPD 472
, and in
Saley v Julay
1945 TPD
221
. In the latter case the Court laid down that even if the
point was not taken by the respondent's counsel the Court would
itself
order the appeal to be struck off the roll.
[8] In the Cape Provincial Division in the case of
Hopley &
Bronner (Prop.) Ltd v Stephen McQueen,
1931 CPD 263
, it was
held that a written power of attorney is only one form of evidence
of authority and that other evidence may be provided.
In that case
there was a written power of attorney which was dated two days after
the appeal had been set down. The Court granted
relief which in
effect amounted to condonation of the two days' delay. Then in
Finbro Furnishers (Pty.) Ltd v Peimer,
1935 CPD 378
, there
was merely oral authority to prosecute the appeal but the Court
granted relief.
[9] I am of the opinion that the more relaxed Cape approach should
be followed. In the vast majority of cases a representative
has
authority to act on behalf of a litigant even though this may not be
manifested by a power of attorney. The instances where
the winner is
unable to recover costs because the loser demonstrates that an
appeal was conducted without authority, must, in the
nature of
things, be very rare. The harm to be guarded against is not so great
that this court need insist on a rule as strict
as that enunciated
in the Transvaal cases referred to above. It seems to me that where
rule 6 of the Labour Appeal Court rules
speaks of a power of
attorney it is clearly intended that such be in the form of a
document signed by the litigant authorising
an attorney to act on
his behalf. The use of the word ‘delivered’ clearly militates
against any oral authorisation being regarded
as sufficient and the
implication is overwhelming that such a power of attorney should be
signed by the litigant.
[10] Where an attorney’s authority to conduct an appeal is
questioned by the opposing party and he does nothing to prove such
authority by way of filing a power of attorney, there is very little
scope for condoning such failure. Ordinarily the challenge
would
have to be taken up, and in the present case it decidedly should
have been. No power of attorney has been filed in court
in this
matter at any stage. The appeal must accordingly be struck from the
roll. There remains the question of costs. Obviously
the erstwhile
applicants in the Industrial Court cannot be ordered to pay the
costs, as they have not authorised the appeal. The
respondent has
clearly incurred costs and the question which arises is whether the
attorneys must be ordered to pay such costs.
[11] There are several judicial decisions dealing with the
circumstances in which a party litigating in a representative
capacity
will be condemned to pay costs de bonis propriis. See
Blou v Lampert, Chipkin NNO and Others
1973 (1) SA 1
(AD)
. In
that case Holmes JA gave examples of instances where such an order
has been made in our law. These include where he acted in
bad faith,
or negligently, or unreasonably. (See, for example,
Re Estate
Potgieter
1908 TS 982
at page 1002)
.
The learned judge of
appeal went on to say at page 14 C - 15 A
“ Counsel for the trustees earnestly besought us to hold that,
although they may have acted wrongly, their conduct did not fall
within the limits of judicial censure. In my view the matter fells
to be decided on a somewhat different basis. The trustees were
held
by the Court a quo to have instituted the proceedings without locus
standi to do so. See the ratio of the judgment of the
Court a quo
reported in
1970 (2) SA 185
at pp. 200 (last line) to p. 214F. There
is no appeal or cross appeal against that decision. This means
that they had no authority
to represent the insolvent estate in the
proceedings; and that, de jure, the insolvent estate was not before
the Court, and did
not litigate, and cannot be ordered to pay costs.
The right persons to be mulcted in costs for the abortive
application are the
trustees who purported to bring it on behalf of
the insolvent estate without right or authority to do so. This seems
to me logically
inescapable. It was also the approach of the Court
in Ashley v SA Prudential, Ltd.,
1929 T.P.D. 283
, to which counsel
for Harlingen referred us. There the proceedings were brought in the
name of Ashley by one Matthews claiming
to be authorised to do so by
a power of attorney. It was held that the document did not confer on
him the power to bring the proceedings.
TINDALL, J., said at p. 286,
in fin., to p. 287
'Matthews... should not be allowed to escape the consequences of
having sought battle in the motion Court without having made certain
that he was fully accoutred for the fray... I think there must be no
order on the application, and R. T. Matthews is ordered to
pay the
costs personally.'
Similarly, in Town Council of Brakpan v Cohen and Others,
1938
W.L.D. 146
, a petition in the name of the town council was signed by
the acting town clerk by virtue of a resolution authorising him to
apply
for an interdict against the first respondent only. SCHREINER,
J., held that the acting town clerk had no authority to bring
proceedings
against the other two respondents. The learned Judge
added, at p. 149 in fin.,
'In regard to the costs of these two respondents the logical course
would be to make the acting town clerk pay such costs (cf.
Ashley v
SA Prudential,
1929 T.P.D. 283).'
Only the gracious consent of counsel saved the unhappy official from
that exacting fate. See also Toubkin, N.O., v Dönges, N.O.,
1951
(3) SA 72
(T) at p. 75B.”
[12] I have made mention of the rules of the Labour Appeal Court
which require a power of attorney to be filed. No attempt was
made
to comply with rule 6, nor was any explanation given as to why a
power of attorney was not filed. The respondent’s attorneys
drew
the attention of Joubert and Carstens to the uncertainty of the
identity of the appellants. This should have alerted Joubert
and
Carstens to the problem. Despite this no attempt was made to consult
the rules or comply with them. The attorneys must therefore
bear the
costs
de bonis propriis.
[13] I conclude this judgement by remarking that the ‘appellants’
in this case have suffered no hardship. The appeal was ill-advised.
I have never encountered a dismissal for operational reasons which
has been executed with such meticulous fairness and such scrupulous
attention to the retrenchment guidelines. In some respects the
respondent went well beyond what was required of it.
[14] I therefore make the following order
The appeal is
struck off the roll.
The costs of
appeal are to be paid by the attorneys Joubert and Carstens
de
bonis propriis.
__________________
NICHOLSON
JA
I
agree.
__________________
FRONEMAN
DJP
I
agree.
___________________
CONRADIE
JA
Date of hearing: 11 May 1999
Date of judgement: September 1999
Attorneys for Appellants: Joubert and Carstens
Attorneys for Respondent: Sutherland et Grobbelaar Association
Counsel for Respondent: Adv J van Aswegen
This
judgement appears on the internet http://www.law.wits.ac.za