Mias v Minister of Justice and others (CA15/00) [2001] ZALAC 6 (5 January 2001)

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[2001] ZALAC 6
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Mias v Minister of Justice and others (CA15/00) [2001] ZALAC 6; [2002] 1 BLLR 1 (LAC); (2002) 23 ILJ 884 (LAC) (14 November 2001)

18
IN THE LABOUR APPEAL COURT OF SOUTH AFRICA
HELD AT CAPE TOWN
CASE NO: CA15/00
In the matter between:
DAVID FRED MIAS
APPELLANT
and
MINISTER OF JUSTICE FIRST RESPONDENT
PUBLIC SERVICE COMMISSION SECOND RESPONDENT
MINISTER OF PUBLIC SERVICE AND THIRD
RESPONDENT
ADMINISTRATION
PRESIDENT OF THE REPUBLIC FOURTH RESPONDENT
OF SOUTH AFRICA
JUDGMENT
COMRIE A.J.A
:
The
appellant is a practising attorney. Prior to the events which gave
rise
to this appeal, he practised for several years in Port Elizabeth for
his own
account, concentrating on labour law.
During
1997 he saw an advertisement in a Sunday newspaper inviting
applications for the post of State Attorney at
inter alia
Port Elizabeth. The tone of the
advertisement emphasised transformation in the public service,
which led the appellant to
believe that, being a man of colour, his
application might be well received. He applied for the post at Port
Elizabeth and in
due course he was interviewed. At that interview
there was no discussion of relocation or re-settlement benefits;
this was because
the appellant was based there.
3 The appellant was not offered the post at Port Elizabeth. It
went instead
to a Mr Crozier who was on the staff of the State Attorney’s
office in Kwa Zulu - Natal. Some months later, on 2 April
1998, the
appellant received a telephone call during which he was offered the
post of State Attorney at Cape Town. He stated in
evidence that he
was later told that his appointment to the Cape Town office would,
in the light of his colour, be in accordance
with the policy of
transformation, which was desired to be visible near Parliament. The
appellant accepted the offer on the turn
and his appointment was
later confirmed in writing. There was no discussion at that stage of
relocation benefits. Neither the appellant,
nor the person who
conveyed the offer, raised the subject.
On
6 July 1998 the appellant took up his new post in Cape Town. By
then he had already enquired about the costs of re-settling
himself and his family in Cape Town, and correspondence had
passed on this topic. The standpoint adopted by the Department
of
Justice was that in terms of the public service regulations (as
they were then), the appellant was only entitled to the limited
benefits (the chapter F.5 benefits) conferred on a new appointee to
the public service. These were substantially less generous
than
the chapter F.4 benefits payable to existing public servants
on transfer, which Crozier received.
At
a subsequent point the second respondent ( the Public
Service
Commission) asserted that the public service legislation was not
applicable
at all, and that the appellant’s position was governed by the
State Attorney
Act 56 of 1957. That was clearly wrong because s 2 (2) of that
statute
expressly provides that the creation, grading and classification of
all posts
on the establishment of the State Attorney’s office, and any
branch thereof,
and the remuneration and the conditions of service, including
retiring
benefits, of all persons occupying such posts, shall be governed by
the public service laws. This was common cause in the Court
below.
In
respect of his move to Cape Town the appellant received the F.5
benefits
payable to a new appointee to the public service.
In
August 1998, while he was still the State Attorney, the
appellant
launched the present proceedings in the Labour Court, Cape
Town.
He initially cited the Minister of Justice, but later the other
respondents (viz.
The Public Service Commission, the Minister of Public
Service and
Administration, and the President) were joined. The first, second
and third
respondents opposed the application. The President abided the
decision of
the Court.
In
essence the case advanced by the appellant in his statement of case
was that the differentiation between the F.4 benefits
( transfer
of existing employees) and the F.5 benefits (new appointees to
the public service) constituted a residual
unfair labour
practice as contemplated by Part B, items 2(1)(a) or (b), of
schedule 7 to the
Labour Relations Act 66 of 1995
. The schedule has
to be read in conjunction with s 212 (3) of the Act which provides
that:
“
(3) The transitional arrangements in Schedule 7 must be
read and applied as substantive provisions of this Act.”
It may be noted that item 2(1)(a) has since been repealed, with
effect from 9
August 1999, by
s 64
of the
Employment
Equity Act 55 of 1998
which contains provisions similar, but not
identical to the repealed item. The present appeal must, however, be
decided according
to the law as it stood when the appellant was
appointed and as it still stood when he instituted the
proceedings.
The relief
initially sought by the appellant was :
“
An order compelling the [First] Respondent to make payment to
the Applicant of full re-settlement expenditure in terms of
paragraph
F 4.1 to F4. 10 referred to in Chapter F of the
Public Service Regulations 1994.”
In reality, therefore, what the appellant claimed was
payment of the
difference between the F .4 benefits and the F.5 benefits. By
way of
amendment the appellant refined the item 2(1)(a) issue to include
unfair
discrimination in the specific circumstances of this case. He also
added a
prayer for “compensation in such sum as is determined to be
fair and
reasonable”.
10. The details of the F.4 and F.5 benefits respectively are
set out in the
judgment of
Lallie AJ
in the court
a quo
. It
will serve no purpose to repeat
them here in full. It suffices to say that the differences are
marked and, as
observed earlier, that the F.4 benefits are considerably more
generous than
the F.5 benefits. An existing employee, such as Crozier, who is
transferred from one city to another, stands a reasonable prospect
under the F.4 regime of recouping all or most of the costs and
expenses likely to be associated with such a transfer. On the
other
hand a new appointee, such as the appellant, depending on his or her
personal circumstances, may well be substantially out
of pocket
under the F.5 regime if forced to relocate in order to take up the
appointment. One of the F.4 benefits, much debated
in the Court
below, is the cost of interim accommodation while the transferee
seeks permanent accommodation; this is not included
in the
F.5 benefits.
This
is a convenient stage to set forth the provisions of items 2(1) (a)
and
(b) of the seventh schedule as they stood at the relevant
time:
“
Residual unfair labour practices
(1) For the purposes of this item, an unfair labour
practice means any unfair act or omission that arises between an
employer and an employee, involving-
the unfair discrimination, either directly or indirectly,
against an employee on any arbitrary ground, including, but
not limited to race, gender, sex, ethnic or social origin,
colour, sexual orientation, age, disability, religion,

conscience, belief, political opinion, culture, language,
marital status or family responsibility;
the unfair conduct of the employer relating to the
promotion, demotion or training of an employee or relating to
the provision of benefits to an employee;”
The item further provides that for the purpose of sub - item (1)(a)
“employee” includes an applicant for employment.
It
may be recalled that the concept of an unfair labour practice
originated in the previous
Labour Relations Act but
was discarded
in the present statute. It appears that Parliament intended to
enact further legislation such as the
Employment Equity Act, hence
the provision of transitional arrangements
After
hearing evidence
Lallie AJ
held that the aforegoing
differentiation in
re-settlement benefits did not constitute unfair
discrimination on an
arbitrary ground as envisaged by item 2(1) (a) above. With regard
to the
alternative contention, under item 2 (1) (b) above, the Court
declined to
decide the question on the ground of want of jurisdiction. The
Commission
for Conciliation, Mediation and Arbitration (the CCMA), it was held,
was
the appropriate forum to determine such a dispute. The claim was
accordingly dismissed with costs.
The appellant
appeals with leave granted by the Court
a quo
.
In
addition to the documentation, the evidence before the Court
below
comprised the testimony of the appellant and of Mr van Pletzen, who
is a
senior employee of the Department of Public Service and
Administration.
Among the salient points to emerge from the oral evidence
were the
following. By the time the case come to trial in November
1999, the
appellant had tendered his resignation and was due to leave office
at the
end of that month. He conceded that when he was offered the Cape
Town
post, and before accepting it, he could and should have enquired
about
relocation benefits. On the other hand, no such information was
volunteered
to him at the time, and subsequently, before taking up his
appointment, he
experienced considerable difficulty in ascertaining what the
applicable
benefits were. A recurring theme in the appellant’s evidence was
his belief
that chapter F, with its built in differentiation, was a scheme
devised by the
bureaucratic “ old guard” or “white old guard” in
Pretoria to obstruct
transformation in, and affirmative action appointments to the
public service; and that the scheme had a racial objective.
Most
transferees, he reasoned, would be white whereas most appointee
would be black, hence
the difference in benefits adverse to the latter group. It was
pointed out to
the appellant that the 1994 regulations had been replaced by a new
set of
regulations, the result of collective bargaining, in which the
re-settlement
benefits remained substantially as before. The appellant tried to
argue his
way out of this, but eventually conceded the point. It also
appeared that regulations to similar effect had existed for many
years, at least since 1957.
It
emerged that the third respondent had from time to time
allowed a
number of deviations from the prescripts of chapter F, mainly
(but not
exclusively) in respect of interim accommodation for new
appointees.
It became a matter of concern that individual government
departments were
promising such benefits without first obtaining the third
respondent’s approval. A cautionary circular was issued.
Be
that as it may, no request
for deviation in the
appellant’s
case
was made by
the first respondent to the
third respondent. Mr van Pletzen opined that had such
request been
submitted for interim accommodation expenses prior to the
appellant
tendering his resignation, it would have stood a good chance of
approval.
His department defended the case, however, for other reasons : the
appellant
was attacking the legality of the regulations, and was claiming much
more
financial relief than just interim accommodation.
The
rationale for the regulatory differentiation was debated with
both
witnesses at length. Various alternatives were canvassed with the
appellant
in cross-examination. The thrust of the point was this: that the
distinction
drawn in the regulations between transferees and new appointees was
one
of a range of possible reasonable solutions. The appellant adhered
to his
view that the differentiation was at least arbitrary.
Mr
van Pletzen explained how chapter F was applied by his department
in
practice. He drew attention to the opening words in para
F. 1;
“
Purpose
To compensate a person who,
in the interest of the State
and at State expense is transferred or appointed.......for
the reasonable expenditure actually and necessarily incurred

as a result there of.” ( Emphasis supplied).
In the Department’s view there were four categories of public
servants for present purposes. The first was an existing employee
who, for his or her own personal reasons, wished to move from one
town or city to another. That would not be regarded as being
in the
interest of the State, and such an employee would not qualify for
re-settlement benefits. The second category was an existing
employee
who was required or requested by his superior to relocate; this
would be treated as being in the interest of the State.
So too
the third category : an existing employee (such as Crozier) who
applied for, and was granted, promotion but to a new centre.
Fourthly, new appointees also satisfied the requirement
of State interest. The second and third categories were
entitled to F.4 benefits, the fourth category to F.5 benefits.
In
view of the line of argument adopted by the appellant on appeal,
it is
unnecessary to dwell on the justification advanced by Mr Van
Pletzen for the regulatory differentiation. Briefly, it falls

under several heads, the first of which is choice. Subject to a fair
procedure, an existing public servant can be transferred
against
his or her will, even to rural areas. It is fair to recompense
such an employee more or less fully for the costs of
transfer.
Generous relocation benefits also help to avoid resignations. A
potential new appointee has a choice, however
: if the
destination is unacceptable, or the relocation benefits too meagre,
he or she can decline the appointment. Secondly,
cost. The public
service has over a million employees and a budget which,
though vast, is not unlimited. If new
appointees who relocate,
are to be compensated on the F.4 scale, the cost to the State will
be significant. This will impact adversely
on service delivery in
other respects. Thirdly, on the administration of the regulations
since 1994, Mr. van Pletzen stated
that transformation of
the public service was well advanced and that the differentiation
had not, in his view, impeded this
process. Fourthly, service
delivery by public servants in rural areas, especially by those
with experience, was an important
part of the State
policy. In his view the F.4 regime advanced this policy. Finally, as
regards
deviations from the regulations, this should be kept to a minimum,
otherwise an unmanageable precedent will be set.
Although
the issues, and the evidence thereon overlap, I shall
consider the matter in three parts : (i) the item 2 (1)
(a) issue;
(ii) the item 2 (1)(b) issue; and (iii) costs. The appellant’s
heads of argument were prepared by counsel
who appeared for
him at the trial. The appellant, however, argued the appeal in
person. In what follows I shall limit
myself in large measure to
the contentions which were advanced on appeal.
Item 2 (1)(a)
At
the outset of his address the appellant made it plain to us
that he no
longer attacked the validity of the regulation under review; he
confined himself to the contention that the regulation

constituted unfair
discrimination “ in administrative practice”. I have set forth
the provisions of item 2 (1)(a) in paragraph 11 above. It
bears a
close resemblance to
s. 8
of the interim constitution and to
s. 9
of
the final constitution. It was not in dispute that the settled
constitutional jurisprudence on unfair discrimination is
applicable
to the item. In short: Is there a differentiation? If
so, is it discriminatory? If so, is it unfair either directly, on
one
or more of the specified grounds, or indirectly (which
affects the burden of proof).
Harksen v Lane NO and
Others
[1997] ZACC 12
;
1998 (1) SA 300(CC)
from para. [44]. In the
light of the stance adopted by the appellant, it is unnecessary
to recapitulate the principles in
greater detail or to cite the
subsequent constitutional and labour case law.
The
appellant referred us to an article by
Anton Fagan
: Dignity and
Unfair Discrimination: A Value Misplaced and a Right
Misunderstood, SA Journal of Human Rights (1998) vol 14 at 220.
The article is critical of the Constitutional Court’s emphasis
on personal dignity, and the impairment thereof, in the unfair
discrimination analysis. I do not think this criticism takes the
matter much further in the present appeal, for two reasons.
First,
because dignity is not the sole criterion, as appears from the
judgments which the learned author discusses, and as also
appears
from that Court’s judgment in
Larbi-Odam and Others v Member
of the Executive Council for Education ( North - West Province)
and Another
[1997] ZACC 16
;
1998 (1) SA 745(CC).
Second, because
the appellant’s contention on appeal, as will appear,
rests on race or social origin, which are
classic (and specified
)instances of human dignity impairment.
I
proceed to summarise the appellant’s argument on appeal. He
submitted
that while the language of the relevant regulation may be “facially
neutral”,
its application in administrative practice constituted an
“employment
policy sullied with discrimination” by the respondents. The basis
of the
discrimination, he submitted, was race or social origin, both of
which are
grounds specified in item 2(1)(a). The appellant referred to his
evidence
at the trial (which he described as “‘direct and clear”) to
the effect that most of the appointees at the public

service were black while most
transferees were white. He had stated in evidence his belief
that the differentiation in re-settlement benefits was not
accidental; by implication,
this extended to the retention from 1994 onwards of substantially
the same
differences as had previously existed. His view was that the
“white old guard” in Pretoria had deliberately persisted
in
the different re-settlement benefits in order to discourage and
frustrate transformation. While not expressly stated
in
argument, I understand the appellant’s contention to
comprehend an alternative : that whatever the intent, the
impact
of the regulation on black people has in practice been unfairly
discriminatory. The appellant submitted that his evidence
had
established a
prima facie
case on this score which
had not been rebutted by the respondents in the documentation
or through the evidence
of Mr van Pletzen.
24. In answer to questions by the Court, the appellant
conceded that he could not complain if new whites appointees were
treated in the same way
under the regulation as new black appointees. He conceded too that
had he been transferred from Cape Town to say Pretoria, after
his
initial appointment, he would probably have received the more
generous F.4 benefits. The appellant submitted further that it
was a
forced interpretation of the regulation to treat Crozier’s
move to Port Elizabeth as a transfer: Crozier had
sought the
promotion, and had not been transferred at the behest of the State
to that city or to some less enviable destination.
The inference,
it was submitted, was that Crozier’s promotion was treated as a
transfer under the regulation because he is white.
In this regard,
however, the appellant conceded that there was no evidence of
departmental practice before 1994, and hence no
evidence of a
changed practice since 1994.
It
is appropriate at this stage to review how the appellant adapted
his case from time to time. The appellant’s statement
of case
contained not a hint of alleged racial discrimination or
discrimination based on social origin. The same is true of
the
correspondence which preceded the institution of the proceedings
and of the pre - trial agendas and minute. The first and
only
reference which I can find to it is at the end of the pre trial -
letter dated 5 February 1999 where the appellant wrote
ambivalently:
“
I wish to emphasise that my complaint is not that I have any
entitlement in common law but I do take exception to being
discriminated
against by legislation that seems to be intended to
favour old civil servants and which is being utilised to
stymie or nullify
transformation of the civil service, whether for
reasons racial or otherwise”.
Nevertheless, the appellant was permitted without objection to
give
evidence at the trial, summarised earlier, about the racial
objective. This
formed a significant, and perhaps the most significant part of his
trial case
on the item 2(1)(a) issue. Now, on appeal, the appellant has once
again
shifted the emphasis, this time to administrative practice albeit
with a racial or similar connotation .
26. I do not say that the appellant is not entitled to
rely on administrative
practice. Indeed, those very words appear in para 5.11 of his
statement of
case. But a consequence of the aforegoing shifts, in my opinion, is
that the
appellant failed to adduce appropriate evidence in support of
his contention on appeal. The appellant no longer claims
that the
1994 regulations were enacted with a racial objective and with
intent to stultify transformation. He now accepts that
the
differentiation, which has been in existence for many years, may in
principle be unobjectionable . He was not prepared to
argue the
contrary on appeal, presumably in the light of Mr. van
Pletzen’s evidence. His case on appeal, in my analysis,
is that
the regulatory differentiation, unobjectionable in itself, has
since 1994 been manipulated by the “white old guard”in
Pretoria
on racial or similar grounds and with intent to stultify
transformation. The appellant adduced virtually no evidence on
this
score. There was no evidence that the regulation was applied to him
as a new appointee because he was black. There was no
evidence that
new white appointees were in some way favoured over blacks with
regard to relocation benefits. Lastly, there
was no evidence that
the previous regulations were applied in a materially different way
before 1994 when, on the appellant’s
evidence, most new appointees
were white. The appellant did suggest that Crozier was improperly
favoured, but again there was
no evidence that had Crozier been
black, he would only have received F.5 benefits. In fact even in
argument the appellant would
not go so far.
27. Furthermore, the appellant’s administrative practice
contention was not seriously explored with Mr. van Pletzen in

cross-examination, perhaps because there were so little to explore.
It will also be recalled that Mr . van Pletzen stated that

transformation was well advanced and the differentiation in
benefits had not, in his view, impeded that process. This
part
of his evidence was not seriously challenged. It accordingly seems
to me that the appellant failed to make out any case, even
a
prima
facie
case, in evidence to support or prove the contention to
which he has confined himself on appeal.
I
should add, for completeness, that nothing turns on the extension
of “employee” under this item to include an applicant
for
employment. The appellant was an applicant for employment at least
in respect of the Port Elizabeth post. But he become
an employee
(in Cape Town). The evidence did not begin to distinguish: between
applicants for positions in the public service
who were successful
and those who were not; or between applicants who were deterred
from applying for positions, or from accepting
them, by reason of
the different re - settlement benefits. I would therefore dismiss
the appeal on the item 2(1)(a) ground.
Item 2(1)(b)
The
provisions of this item are set forth at para.11 above. The
question to be answered is whether there was unfair conduct

relating to the provision of benefits. This item, as the appellant
recognised, is particular rather than general. It refers
to
the treatment of an individual employee or individual employees,
in this case “relating to the provision of benefits”.
The
facts founding this complaint are: that Crozier had allegedly been
unduly favoured; that the appellant was not informed
of the F.5 or
F.4 re-settlement benefits before he accepted the appointment
(though he could have asked); that after acceptance
he
encountered real difficulty in ascertaining his entitlement
according to regulation; that the Public Service Commission
(the
second respondent) misconstrued his position in the public
service; and that the Director - General or the Minister of
Justice failed to submit a deviation request to the second or
the third respondent. In this last regard there is the
evidence of Mr. van Pletzen that had such a request been
submitted timeously, it would probably have been granted
in
respect of interim accommodation worth, on the appellant’s
evidence, R 7500.
As
I have recounted, the Court
a quo
declined, on
jurisdictional grounds, to
entertain or decide the claim under this item. When the appellant
was appointed, the relevant portions of schedule 7 read:
“
3(4) If the dispute remains unresolved
(a) any party to the dispute, if the dispute is about an
act or omission referred to in item 2 (1) (a), may refer the dispute
to the Labour Court for adjudication;
(b) any party to the dispute, if the dispute is about an
act or omission referred to in item (2)(1)(b), (c) or (d), may
request
that the dispute be resolved through arbitration.
4(1) The Labour Court has the power to determine any dispute that
has been referred to it in terms of item 3 on terms it deems

reasonable, including, but not limited to, the ordering of
reinstatement or compensation.
The
arbitrator has the power to determine any dispute that has been
referred to it in terms of item 3 on reasonable terms.”
31. It is apparent that notwithstanding the overlapping facts, the
item 2 (1) (b) dispute should have gone to arbitration.
However,
s. 158(2)
of the
Labour Relations Act provides
that:
“
If at any stage after a dispute has been referred to the
Labour Court, it becomes apparent that the dispute ought to have
been
referred to arbitration, the Court may-
(a) stay the proceedings and refer the dispute to
arbitration; or
(b) with the consent of the parties and if it expedient to do
so, continue with the proceedings with the Court sitting as an
arbitrator,
in which case the Court may only make any order that a
commissioner or arbitrator would have been entitled to make”.
32.
Lallie AJ
held that the Courts lacked
jurisdiction to entertain the alternative claim, and that the CCMA
was the appropriate forum to
determine whether the respondents
had committed unfair conduct relating to the provision of benefits
to the appellant in terms
of item 2(1)(b). It does not appear
from the judgment whether she was referred to
s.158
(2) or took it
into account. The judgment granting leave to appeal takes this
aspect no further.
33. A lack of jurisdiction in respect of the item 2(1)(b) dispute
was not pleaded. There appears to have been no objection to
the
jurisdiction on the part of the respondents at any stage. There is
much to be said for the view, therefore, that the respondents
by
their conduct tacitly consented to the jurisdiction of the Labour
Court. See
Reactor
Clothing(Pty)Ltd v
Robertson and Others
[1998] 3 BLLR 315
(LC) per
ZondoJ
(as he then was).That is, however, not the end of the matter.
Lallie
AJ
brought in no express finding on expedience. There was no
application for her to make a ruling in terms of
s. 158
(2).
In the absence of such a ruling, she could not assume jurisdiction.
Inferring
consent, and allowing for the overlapping evidence, it may at first
blush appear expedient for the Court
a quo
to have decided
the item 2(1)(b)
issue as well. There are, however, some difficulties in the
way of this
course. In contrast to the
Reactor
case
, supra,
the trial Court would have sat
in two capacities at the same time : both as Court and as
arbitrator.
Its decision on the first item was appealable (with leave) while a
decision
on the merits of the second item was not. On appeal it is open to
this Court
to correct the decision on the first item but, save on review, not
the second.
Depending on the reasoning of the Court
a quo
, and on this
Court’s view of the merits, this could lead to inconsistent
findings or conclusions, which would be undesirable.
Furthermore,
we do not have the benefit of the trial Court’s reasoning and
conclusions on the merits of the second
item. We may, as a
Court of appeal, interfere with the trial Court’s decision not to
exercise jurisdiction, but what then?.
Absent a review, and there is
none, we cannot in our appellate capacity simply substitute our view
on the merits of item 2(1)(b),
whether favourable to the appellant
or not. The most we could do would be to remit the item
2(1)(b)issue to the tribunal below
for a decision on the merits,
which may or may not prompt review proceedings. In such event it
would, I think, be inadvisable for
this Court to dispose of the
appeal on item 2 (1) (a) while leaving item 2 (1)(b) hanging
potentially in the air. If there is to
be a review, which we
cannot predict either way, then appeal and review should be heard
together.
35. The alternative course, in terms of
s 158(2)(a)
, was for the
Court
a quo
to
have stayed the proceedings in respect of item 2(1)(b) and to have
referred
that dispute to arbitration. This it omitted to do. There is no
appeal in this respect. I did not understand the appellant to

express any preferences, or indeed enthusiasm, for either of
the two courses which I have outlined.
It
follows that the appeal with regard to this item must fail.
Costs
The
trial Court dismissed the appellant’s case with
costs. There is regrettably a dispute about what
happened in
that Court. According to the appellant’s heads of argument,
and endorsed by the appellant in argument
Mr
Kennedy
,
counsel for the first to the
third respondents, after
taking instructions, informed
Lallie AJ;
“ that any
and all claims to costs of the proceedings in the Court
a
quo
were not being sought”. This does not accord with the
recollection of the respondents’ representatives which according
to
Mr Kennedy
is; “ that it was indicated during
argument merely that the Respondents accepted that costs were a
matter in the discretion of
the Court and that the Respondents were
not vigorously pressing for them”.
The
notice of application for leave to appeal mentioned as its first
ground that
Lallie AJ
erred : “ In dismissing the
application with costs, when First to Third respondents expressly
abandoned any claim
for costs during final arguments”.
This ground of appeal drew no comment in the very brief
judgment granting leave. It is not possible for this Court on appeal
to resolve this dispute of fact in the appellant’s favour.
The
result is that the appellant’s argument, based on an abandonment
or waiver of costs, cannot be sustained and that the Court
a quo
retained its discretion in this connection. Inasmuch as the
appellant achieved no success on the merits, I am unable to conclude
that the trial Court exercised that discretion un-judicially.
In the result the
appeal is dismissed with costs.
_____________
R.G.
Comrie
Acting
Judge of Appeal
I agree
_______________
RMM
Zondo
Judge
President
I agree
_________________
K. van
Dijkhorst
Acting
Judge of Appeal
For the Appellant: In person. Heads of argument prepared by Adv.
R.G.L. Stelzner
Instructed by: De Klerk & Van Gend, Cape Town
For the first to third Respondents: Adv. P. Kennedy SC
Instructed by: The State Attorney, Pretoria
Date of Argument: 24 May 2001
Date of
Judgment: