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[2000] ZALAC 17
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South African Commercial Catering and Allied Workers Union and Others v Registrar of the Labour Court and Another (CA6/98) [2000] ZALAC 17 (21 July 2000)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT CAPE TOWN
CASE
NO: CA 6/98
In the matter between:
SOUTH
AFRICAN COMMERCIAL CATERING
AND
ALLIED WORKERS UNION
First
Applicant
and
XOLILE
NUMOYI AND 32 OTHERS
2
ND
TO 34
TH
Applicants
and
THE
REGISTRAR OF THE LABOUR COURT,
MR H THERON N.O IN
HIS CAPACITY AS
TAXING MASTER OF THE
ABOVE
HONOURABLE
COURT
First Respondent
IRVIN
AND JOHNSON
Second Respondent
JUDGMENT
[1] The
Applicants were Appellants in an appeal against a judgment of the
Industrial Court. The Appeal was prosected before the new
Labour
Appeal Court as constituted in accordance with the Labour Relations
Act 66 of 1995 (hereinafter the Act). Applicants were
unsuccessful
with their appeal and costs was awarded against them and in favour of
the Second Respondent.
[2] The Second
Respondent proceeded to draft its Bill of Costs in terms of the
Tariff as set out in Rule 13(1) of the rules of the
Labour Appeal
Court, which provides that, for the conduct of proceedings before the
Labour Appeal Court the same schedule of Tariff
for fees as the one
which applies for proceedings before the Supreme Court of Appeal will
apply.
[3] On the date of the
scheduled taxation the First Respondent, in his capacity as Registrar
and Taxing Master declined to tax the
bill presented by the Second
Respondent. The basis for his refusal was that the Bill presented by
the Second Respondent should have
been drafted in accordance with the
Tariff of fees as applicable to the High Court. The reasons for
arriving at the objections which
he did appear to be the following:
3.1 The jurisdiction of the Labour Appeal Court
to hear the appeal was pursuant to item 22(5) of Schedule 7 of the
Act. This item
required the Labour Appeal Court to apply the old
Labour Relations Act consequently
the Tariff of fees which had been
applicable in matters heard by the old Labour Appeal Court was
applicable. (The old Labour Appeal
Court was constituted by the High
Court and thus costs awarded were based on the Tariff of Fees as
applicable to the High Court.)
and further that
3.2 in hearing the appeal the Labour Appeal
Court sat as a court of first instance because the appeal was against
the decision of
the Industrial Court which was not constituted as a
court of law. In matters when the Labour Appeal Court sat as a Court
of first
instance then and in such event
Rule 13(3)
of the Labour
Appeal Court provided that when costs was granted to a party the
applicable tariff of fees was the one which applied
to the High
Court.
[4] In due course the
Second Respondent drew up a new bill on the High Court Tariff which
bill was duly taxed.
[5] Applicants seek to
review and set aside the decision of the First Respondent in refusing
to tax the original Bill drawn in accordance
with the Tariff of fees
as applicable to the Supreme Court of Appeal as also the subsequent
taxation of the subsequent Bill drawn
in accordance with the tariff
of fees as applicable to the High Court.
[6] To deal first with
First Respondents second objection,
Rule 13
of the Rules of the
Labour Appeal Court provide the following:
â(1)
Rule 9
,
10
, and
11
(as amended from time
to time) of the rules of the Supreme Court of Appeal of South Africa
regarding taxation and attorneysâ fees
apply with the changes
required by the context.â
(2) ...
(3) When the Labour Appeal Court sits as a
Court of first instance, the provisions of rule 24 of the Labour
Court Rules applyâ.
[7] While it is correct
that the Industrial Court was not constituted as a Court of Law to
argue that in hearing the appeal the Labour
Appeal Court sat as a
court of first instance may be of some merit. What is however
required is to consider rule 13 (3) in the context
of the Rules of
the Labour Appeal Court as a whole. The Labour Appeal Court is unique
in that it also has jurisdiction as a court
of first instance however
before it can entertain a matter as a Court of first instance certain
procedural requirements as set out
in Rule 10 of its Rules are
required to be followed. It is only when there is compliance with
Rule 10 can it be said that the Labour
Appeal Court has sat as a
Court of first instance - no more and no less. Sub Rule 13(3) is
therefore only applicable where the Labour
Appeal Court sits as a
Court of first instance in compliance with Rule 10 of the Rules of
the Labour Appeal Court.
[8] The procedure that
was followed by the parties in prosecuting this appeal was not the
procedure as set out in Rule 10 but the
procedure set out for appeal
ordinarily heard from the Labour Court. In these circumstances the
Registrar was incorrect to insist
that the applicable Tariff of fees
was the one provided for in the sub-Rule 13(3).
[9] With regard to his
first objection, the relevant part of item 22(5) of Schedule 7 of the
Act provides that:
âAny appeal from a decision of the Industrial
Court ...in terms of subsection (1) or (2) must be made to the Labour
Appeal Court
established by section 167 of the Act and the Labour
Appeal Court must deal with the appeal as if the
Labour Relations
Laws
had not been repealed.â (emphasis added).
[10] Item 22(5) of
Schedule 7 of the Act does not enjoin the parties to deal with the
appeal as if the
Labour Relations Act had
not been repealed. It
enjoins the Labour Appeal Court to deal with the appeal as if the old
Labour Relations Act had
not been repealed. The prosecution of the
appeal was therefor clearly proceeding before the new Labour Appeal
Court.
[11] Furthermore the
old
Labour Relations Act does
not deal with the question of Tariff of
fees for costs of proceedings in the old Labour Appeal Court and the
Industrial Court. The
costs are therefore not set out in any âLabour
Relations lawsâ. The Tariff of fees then applicable where costs
orders were made
were regulated by Rules promulgated in terms of the
laws which have now been repealed. These rules were specific to the
functions
of and proceedings before those institutions which
institutions no longer exists.
[12] The proceedings,
which form the subject of the current dispute about the costs were as
a matter of fact not conducted before
the old Labour Appeal Court.
They are proceedings which commenced and continued before the new
Labour Appeal Court and in terms of
the rules of the Labour Appeal
Court.
[13] For the above
reasons the costs of the proceedings before the new Labour Appeal
Court should be the cost as provided for in
s 13(1)
of the rules of
the Labour Appeal Court.
[14] In the result I
make the following order:
14.1. The taxation by the first Respondent on
25 November 1999 of the Second Respondents Bill of Costs in
connection with proceedings
before the Labour Appeal Court, which
Bill was drawn on the High Court Tariff is hereby set aside.
14.2. The decisions of the First Respondent on
3 November 1999 with regard to Second Respondentâs Bill of Costs
which had been
drawn on the tariff of the Supreme Court of Appeal
Tariff is set aside.
14.3 The Bill of Costs presented on 3 November
1999 and which had been drawn in terms of
Rule 13
(1) of the Rules of
the Labour Appeal Court is referred for taxation at a date and time
to be arranged with the Registrar.
-------------------------
Waglay J
Date of Judgment: 21
July 2000