Gold Fields Trust (Pty) Limited and Another v Stander and Others (JA45/00) [2002] ZALAC 12 (29 May 2002)

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[2002] ZALAC 12
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Gold Fields Trust (Pty) Limited and Another v Stander and Others (JA45/00) [2002] ZALAC 12; [2002] 9 BLLR 797 (LAC) (29 May 2002)

IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA
HELD
AT JOHANNESBURG
Case
No: JA 45/00
In
the matter between
GOLD
FIELDS TRUST(PTY)LIMITED First Appellant
GOLD
FIELDS MINING AND
DEVELOPMENT
LIMITED Second Appellant
and
PHILIP
STANDER AND 4 OTHERS Respondent
_______________________________________________________________
JUDGEMENT
_______________________________________________________________
ZONDO
JP
Introduction
[1] In
a dispute between the appellants and the respondents on whether the
first appellant’s dismissal of the respondent for operational
requirements was fair or unfair, the Labour Court, through Maserumule
AJ, gave a judgement to the effect that the dismissal was unfair
and
ordered the first appellant to pay 12 months remuneration to each one
of the respondents plus costs. With the leave of the Court
a quo, the
appellants now appeal to this Court against that judgement and order.
[2] Before
I can deal with the merits of the appeal, there are procedural
matters that I must dispose of. The one is an application
by the
appellants for the condonation of their failure to deliver the record
within 60 days from the date of the granting of leave
to appeal as
prescribed by the rules of this Court and for the reinstatement of
the appeal. The other is an application by the third
respondent for
the condonation of the late delivery of his heads of argument. I
shall first deal with the appellants’ application
and thereafter
with the third respondent’s application.
Appellants’
application for condonation and for the reinstatement of the appeal
[3] In
terms of rule 12(1) of the Rules of this Court an appellant is
required to deliver the record of appeal to the registrar within
60
days from the date on which the Labour Court granted leave to appeal.
In this matter the order granting leave to appeal was apparently
delivered on 7 June 2000. Neither the registrar of this Court nor any
one seems to have notified the appellants’ attorneys in advance
that the order was going to be handed down on that day. As a result
the appellants’ attorneys were unaware that the order would
be
handed down. After the order had been handed down, they only became
aware that such an order had already been handed down on the
27
th
September 2000 when they received a letter from the attorney for some
of the respondents to which was enclosed a copy of the order.
By then
the prescribed period of 60 days had expired.
[4] The
appellants’ attorney then delivered a notice of appeal on the 23
rd
October 2000. The notice of appeal was filed late. In terms of rule
5(1) of the rules of this Court such a notice was required to
have
been delivered within 15 days after the date on which leave to appeal
was granted. Although the notice of appeal was delivered
outside the
15 days prescribed by rule 5(1), this was simply because the
appellants and their attorneys were unaware that the order
granting
leave to appeal had already been delivered. Once the appellants’
attorney became aware of the order, he delivered the
notice within 15
court days thereafter. There can be no doubt that the appellants’
failure to deliver the notice within the prescribed
period should be
condoned. The circumstances clearly reveal good cause for the
failure. It is hereby condoned.
[5] The
record of appeal was delivered to the registrar on the 19
th
March 2001. As the order granting leave to appeal had been delivered
on the 7
th
June 2000, this means that the record of appeal was delivered about
eight and a half months after the date of such order. That is
not the
period by which the appellants were late in delivering the record.
The record should have been delivered within 60 court
days from the
date of such order. The appellants have not in their application for
condonation indicated the date on which that period
expired. They
should have done so because this is necessary to establish precisely
from which date the delay can be said to have
begun. Their failure to
do so places the burden of making the necessary calculations to
establish such a date on the Court. This
is an unnecessary burden
that is placed on the Court by a party that seeks the indulgence of
the Court.
[6] The
60
th
court day was the 1
st
September 2000. That period from 7 June 2000 to the 27
th
September 2000 is the period during which the appellants and their
attorneys were not aware that the order granting leave to appeal
had
been granted. The explanation in respect of that period is accepted.
It is necessary to then deal with the explanation for the
delay from
the 27
th
September 2000 to the 19
th
March 2001 in the delivery of the record. A period of 60 court days
from the 27
th
September 2000 (counting from 28 September) expired on the 20
th
December 2000. This means that from the 27
th
September when the appellants became aware of the order a period of
81 calendar days expired after the expiry of 60 court days. As
already stated above the record was delivered on the 19
th
March 2001. From the 27
th
September 2000 to the 19
th
March 2001 is about 114 court days. From the 20
th
December 2000 when the 60 court days expired from the date the
appellants’ attorney became aware of the order to the 19
th
March 2001 when the record was delivered, it is about 54 court days.
[7] This
means that the record was delivered 54 court days later than the last
day that the appellants would have been required to
deliver the
record if one adopts the approach that they should have delivered it
within 60 court days. The appellants failure to
deliver the record
timeoulsy means that rule 5(17) has been triggered. Rule 5(17)
provides that, if an appellant fails to deliver
the record within the
prescribed period, he is deemed to have withdrawn the appeal.
However, rule 12 gives this Court a general power
to condone any
non-compliance with the rules of this Court. A consideration of the
explanation provided by the appellants’ attorney
for the delay
reveals that part of the delay was caused by Vic and Dup, the company
that the appellant’s attorney had instructed
to prepare the record
and that another part of the delay was caused by the appellants’
attorney’s oversight of the rule of this
Court that requires that
the record of appeal be delivered within 60 days from the date of the
handing down of the order granting
leave to appeal. Vic and Dup and
the appellant’s attorney share some blame for their respective
parts of the period of delay. The
appellant’s attorney has
apologised to this Court and to the respondents for his oversight.
This is not a case where the consequences
Vic and Dup’s negligence
or fault in the preparation of the record can be visited upon the
appellants or their attorney.
[8] The
matter is an extremely important one to all the parties. The
respondents have not been prejudiced by the appellants’ failure
to
comply with the rules of the Court. That is why they have elected not
to oppose the appellant’s application for the condonation
of its
failure. As to the prospects of success on the merits, I am of the
opinion that it can be said that the appellants’ prospects
of
success are reasonable. In the light of all the circumstances I am of
the view that good cause has been shown and that this Court
should
condone the appellants’ failure to deliver the record timeously.
Accordingly such failure is condoned and the appeal is
reinstated.
The application by the respondents for the condonation of their
failure to deliver the respondents’ heads of argument
timeously
also deserves to be granted. The delay was not excessive. Neither the
appellants nor the Court were inconvenienced by the
delay.
Accordingly such failure is also hereby condoned.
[9] The
facts surrounding the dismissal of the respondents are largely common
cause. They were set out adequately in the judgement
of the Labour
Court. It is unnecessary to set them out in any way different from
the way they were set out by the Labour Court.
[10] When
Belcombe LJ had to give judgement in the Court of Appeal in
Secretary
of State for Employment v Spence and others [1986]3 ALL ER 616 (CA),
he took the facts as they were from the decision of the industrial
tribunal. I find it convenient in this matter to follow suit and,
accordingly, propose to take the facts from the judgement of the
Labour Court as they have been adequately set out therein.
They are set out in the following terms.
“
3.1 The
applicants, except for Oleg Krzyzanowski, the second applicant, were
originally employed by Deelkraal Gold Mining Company
Limited
(Deelkraal), in various capacities. Deelkraal was at the time one of
a number of companies controlled by Gold Fields of South
Africa
Limited, (
“GFSA”
).
3.2 In
May 1997, Deelkraal merged with or was bought by Elandsrand Gold
Mining Company Limited (
“Elandsrand”
).
Following the merger, and in November 1997, the applicants, again
save for the second applicant, were transferred to Gold Fields
Training Services Trust, (
“GFTS”
).
The second applicant was employed by GFTS in September 1997 as an
underground manager and was immediately thereafter seconded to
the
Vulindlela Project. Vulindlela was a project administered by GFM &D,
the details of which are set out below. These applicants
signed
employment contracts with GFTS. GFTS is a trust which was created by
GFSA to provide training services in the areas of panel
mining
training, stope-artisan training to the mining companies within the
GFSA stable. These mining companies paid GFTS for the
services
provided. The first respondent is the trustee of GFTS.
3.3 The
rationale for transferring the applicants to Deelkraal appears from
letters dated 21 May 1997, addressed to the applicants,
save for the
second applicant, by GFSA. The material portion of the letters, which
are identical, reads as follows:
“
Internal
discussion have taken place with Elandsrand representatives, but it
is not clear from these discussions which employees Elandsrand
wish
to retain (on a secondment basis) and for how long.
With
this uncertainty it is not possible at this stage to advise you which
specific group operation will ultimately offer you employment.
The
purpose of this letter is therefore to secure your employment in the
interim with the Gold Fields Group.
According, GSA on behalf of GFTS TRUST thereby (sic) makes an offer
to you to be employed by GFTS TRUST upon the same terms and
conditions
as currently apply to you ...
Should
this offer be accepted then depending on outcome of the discussions
with Elandsrand you will either be seconded back to Deelkraal
for a
limited period or be made a specific offer in due course from another
Gold Fields Group company on the same terms and conditions.”
3.4 The
applicants, although formally employed by GFTS, did not render any
services to GFTS, except for the fifth applicant, and even
in his
case, to a very limited degree. GFTS did not need their services, had
no vacancies for them and had only employed them as
an interim
measure as stated in the letter quoted above. Upon their transfer to
GFTS, the applicants were seconded to Gold Fields
Mining &
Development Limited, (
“GFM&D”
)
and to Vulindlela, which was a project managed by GFM&D. GFM&D
is a wholly owned subsidiary of GFSA and provides management
services
to the former. GFSA itself does not have any employees.
3.5 GFTS
paid applicants’ salaries and then invoiced the project to which
they were seconded or GFM&D in cases where they were
seconded to
the latter. GFM&D would then reimburse GFTS.
3.6 In
February 1998, a new company was formed, comprising of Gengold Mining
Company Limited, (
“Gengold”
)
and the gold assets of GFSA. The new company was called Gold Fields
Limited, (
“GFL”
)
and was listed on the Johannesburg Stock Exchange. As a result of the
formation of GFL, GFSA was divested of all the gold mines
and
remained only with non-gold mining interests and was also delisted
from the Johannesburg Stock Exchange.
3.7 One
of the consequences of the creation of GFL was that GFTS merged with
Gengold’s Training Centre as both of them provided
the same kind of
services. Following the merger, a consultation process with employees
of GFTS on possible retrenchments was set
in motion. I will return to
this aspect later.
3.8 Following
the creation of GFL, GFSA made an announcement that GFM&D would
be restructured and employees would be retrenched.
This was
necessitated by the fact that GFM&D would no longer provide
management services to the gold mines which had now become
part of
GFL. GFM&D employees formed a consultative forum which became the
vehicle for consultations about the pending retrenchments.
The
applicants did not take part in the activities of this consultative
forum. On 27 February 1998, the vast majority of GFM&D
employees
were retrenched. Their retrenchment package consisted of:
3.8.1 two
months’ notice pay;
3.8.2 one
month’s ex-gratia payment to employees with less than ten years’
service and two months’ ex-gratia payment to employees
with more
than ten years’ service; and
3.8.3 two
weeks’ pay for each completed year of service.
3.9 On
6 March 1998, the manager of GFTS, Mr Lutman, addressed a memorandum
to a Mr. PDK Robinson of GFL. The material portion of
the memorandum
reads as follows:
‘
The
following employees are currently on the books of GFTS despite the
fact that they have not reported to or performed any work for
GFTS.
It would be appreciated if some guidance can be given concerning
their future in Gold Fields Limited as well as how to deal
with them
and who should deal with them.”
3.10 The
applicants’ and other persons’ names are listed in this
memorandum. There is a handwritten note dated 9 March 1998 and
which
deals with the query raised by Lutman in his memorandum of 6 March.
In this note, the names of the applicants appear and alongside
them
is the notation,
“Retrench”
.
The note goes on to say that
“all
these decisions were made by Opsco, the Gold Field’s Limited
Company.”
During
evidence, Rothman testified that the note was made by Lutman, GFTS’
manager.
3.11 On
11 March 1998, GFTS made an announcement about its restructuring and
the possible retrenchment of employees. GFTS employees
formed a
consultative forum which consulted with GFTS management about the
restructuring and retrenchments. The first applicant was
elected on
to the forum as a representative of the ex-Deelkraal and Vulindlela
employees who were still on the books of GFTS.
3.12 On
19 March 1998, the first applicant received a letter from GFTS in
which he was advised that there was no alternative employment
available to him at GFL, that he might be affected by the pending
retrenchments at GFTS and that he should apply for a suitable
position
at GFTS once positions were advertised as part of its
restructuring. Other applicants received similar letters.
3.13 On
27 March 1998, the first applicant, acting on behalf of ex-Deelkraal
and Vulindlela employees, including the other applicants
herein,
wrote a letter to GFTS in which he, inter alia, stated that:
3.13.1 they
regarded themselves as GFSA employees, and not GFTS employees;
3.13.2 they
had not been afforded an opportunity to apply for posts at GFL after
its formation;
3.13.3 a
decision had already been made to retrench them and the only issue
open for discussion was the severance package; and
3.13.4 they
were prepared to accept the same retrenchment package as the one paid
to GFM & D employees, plus an additional three
months’ pay for
“procedural
and substantive errors.”
3.14 Further
correspondence ensued between the first applicant and GFTS concerning
the status of the applicants and their retrenchment.
The essence of
the dispute between the two parties was that the applicants claimed
that they were not GFTS employees and ought to
have been dealt with
during the GFM&D retrenchments and that were they to be
retrenched, they should be paid the same package
as that paid to
GFM&D employees. GFTS resisted these claims and maintained that
the applicants were its employees and their future
would be
determined by the outcome of the consultation process then in
progress.
3.15 In
between the exchange of correspondence between the applicants and
GFTS, meetings between the consultative forum and GFTS took
place as
part of the consultations about the looming retrenchments.
Consultation meetings between the consultative forum and GFTS
management took place on 16,17,20 and 26 March 1,3,6 and 7 April
1998.
3.16 The
first applicant attended all the consultation meetings except for the
ones on 1 and 3 April 1998. At the meeting held on
6 April 1998, the
first applicant informed GFTS’s representative, Mr Rothman, that
the retrenchment package being discussed would
not apply to
ex-Deelkraal and Vulindlela employees because they were still
awaiting a response to their memorandum. The memorandum
referred to
is dated 6 April 1998 and essentially reiterates applicants’
position as set out in their letter of 27 March 1998,
whose essential
contents are set out above.
3.17 On
14 April 1998, the consultative forum and GFTS signed a retrenchment
agreement which included the retrenchment package to
be paid to
employees to be retrenched. The retrenchment package consisted of:
3.17.1 two
weeks’ pay of each completed year of service for the first six
years of employment, and one weeks pay of each completed
year of
service in excess of six years; and
3.17.2 one
month’s basic ex-gratia payment.
3.18 The
applicants received letters on 17 April 1998 in which they were
advised of their retrenchment, effective from 17 May 1998,
although
they were not required to serve their notice period. They were paid
the severance package set out in the preceding paragraph.
[11] The
respondents were dissatisfied with their dismissal and, after an
unsuccessful attempt at conciliation, referred a dispute
of an
alleged unfair dismissal to the Labour Court for adjudication. The
appellants defended the action. The Labour Court had to
decide a
number of issues which it did. However, the only issue on appeal is
whether the Court a quo was right in finding that the
dismissal of
the respondents by the first appellant unfair. I turn to consider
this issue.
Was
the Court a quo right in its decision that the dismissal was unfair?
[12] The
reason why the Labour Court found that the respondents’ dismissal
was unfair was that the first appellant had failed to
comply with the
requirements of sec 189 of the Labour Relations Act, 1995 (Act NO 66
of 1995)(
“the
Act”
).
Sec 189 provides that when an employer
“contemplates”
the
dismissal of an employee or of employees for operational
requirements, it must consult such employee or employees or his, her
or their representative.
[13] The
human resources manager for GFTS was Mr Rothman who was the main
witness for the first appellant. Mr Bruce Lutman was appointed
as the
senior manger for GFTS or as the Head of GFTS on the 18
th
February 1998. According to Mr
Rothman
,
people at GFTS were
“apprehensive
and suspicious concerning the joining of Mr Lutman at the time”.
Mr Rothman, as human resources manager, then suggested to Mr Lutman
that a
“communication meeting”
be held with the staff of GFTS.
[14] A
meeting as suggested by Mr Rothman was then arranged. At that meeting
one of the questions which were raised - rather aggressively,
according to Mr Rothman, - was what the future held for the employees
who had been transferred from Deelkraal and the ex-Vulindlela
employees. As Mr Lutman did not have a straight answer to this
question, he undertook to seek answers from Gold Fields Limited, the
parent company.
[15] Pursuant
to that undertaking, Mr Lutman addressed the memo of the 6
th
March 1998 referred to earlier in this judgement to Mr Robinson of
Gold Fields Limited and asked for guidance concerning the future
of
various groups of employees who were
“on
the books”
of
GFTS despite the fact that they [had] not reported to or performed
any work for GFTS. Mr Robinson was employed by GFL and was the
person
to whom Mr Lutman reported. The groups of employees included the
ex-Vulindlela and Deelkraal employees. This included the
respondents.
On the 9
th
March 1998 Mr Lutman compiled a certain document the contents of
which included a reference to the groups of employees in respect
of
whom he had sought guidance from Mr Robinson in his memorandum of the
6
th
March.
[16] The
contents of that document read thus:-
“
Manuscript
document:
1.
Group Sports Organiser }
Asst ,, ,,
} wait on Opsco decision
Group
Firemaster }
2.
Group
Radiological Protection Advisor - Kieth Spencer’s decision
3.
Underground
Manager -
KRYZYZANOWSKI
-
RETRENCH
[Initialled]
4.
STANDER PP }
VAN
DER NEST LS }
DU
PLESSIS A }
RETRENCH
[initialled]
DE
TAKE V }
ANNANDALE
WG } TOWILL
All
these decisions were made by OPSCO, the Gold Fields Limited company.
BEL
9/3/98
“
[17] Mr
Rothman testified that the document was compiled by Mr Lutman. He
testified that about a day or two after the day on which
Mr Lutman
had compiled it Mr Lutman had given it to him. Mr Rothman testified
that Towill’s name - that is one of the respondents
- was added by
him to the list of employees to which the word
“retrench”
would
apply. Mr Rothman’s evidence about the circumstances under which
the document was compiled was hearsay evidence as he was
only
relating what he had allegedly heard from Mr Lutman and Mr Lutman was
not called to testify.
[18] It
will be seen from the document that against the group sports
organiser, the assistant sports organiser, and the group fire
master
it is written:
“wait on OPSCO decision”.
Against
the Group Radiological Protection Advisor it is written:
“Keith
Spencer’s decision”.
Against the rest of the names it is written
“retrench”
.
These names include the respondents’ names. Most importantly the
last sentence of the document reads:
“All
these decisions were made by Opsco, the Gold Fields Limited Company.”
The author of the document appears as
“BEL”
which is Mr Bruce Lutman. The date 9/3/98 also appears. Opsco was
explained by Mr Rothman as the operations committee of Gold Fields
Limited (
“GFL”
)
which was the trustee of GFTS. GFL, as the trustee of GFTS, had
appointed Mr Lutman as the head of GFTS. Mr Lutman reported to Mr
Robinson of GFL.
[19] The
question arises as to which decisions Mr Lutman was referring to when
in the last sentence of the document he wrote:-
”all
these decisions
were
made by Opsco, the Gold Fields company.”
Without
doubt the reference to
“these
decisions”
is
a reference to, among others, the decision that the employees against
whose names the word
“retrench”
appears be retrenched. What the contents of this memorandum
therefore
reveal is, among other things, that a decision was taken by Opsco of
GFL that the respondents be retrenched. It is common
cause that the
consultation process began after the 6
th
March 1998.
[20] The
Court a quo came to the conclusion that the decision to retrench the
respondents was taken before the consultation process.
Both in his
evidence in chief and under cross-examination Mr Rothman tried to
explain the contents of the document away by saying
that they were to
the effect that there was a possibility of the respondents being
retrenched and not that a decision had been taken
to retrench the
respondents. Quite correctly, the Court a quo rejected his evidence
in this regard. First, he did not write the document
but Mr Lutman
did. Second, he bore no personal knowledge of the circumstances under
which the document had been written by Mr Lutman.
Third, he was not
present when the decisions referred to in the document were taken by
OPSCO.
[21]
Mr Lutman’s evidence would have been critical in explaining the
circumstances under which the memorandum was compiled and
whether the
contents thereof were or were not intended to mean what they say,
namely, that OPSCO had taken the decision that the
respondents be
retrenched. He was not called to give evidence and from the record no
explanation appears to have been given why he
was not called when the
circumstances cried out for an explanation of what the memorandum he
wrote meant if it did not mean what
it says. The evidence of the
chairman of OPSCO or any member of OPSCO would also have been
critical if it was to be accepted that
the statement in the document
that OPSCO made the decision that the respondents be retrenched was
to be understood not to mean what
it says or if the circumstances
under which it was made were such that it was not a decision to
retrench but a contemplation of a
dismissal for operational
requirements as envisaged in sec 189(1) of the Act. Neither chairman
nor any member of such committee was
called to testify.
[22] In
argument before us Counsel for the appellant submitted that the
decision to retrench that the document refers to was a contemplation
of a dismissal for operational requirements which in terms of sec
189(1) of the Act occurs prior to the initiation of the consultation
process. Unfortunately for the appellant in circumstances such as
those in this case such an explanation cannot come from Counsel
in
argument. It must come from a witness in the witness stand. In this
matter the persons who were competent to give such an explanation
did
not testify. Accordingly there is no evidential basis on which it can
be justified to say that what is reflected in the document
as a
decision to retrench was not a decision to retrench but a
contemplation of taking a decision to retrench in the future.
[23] What
does one make of the fact that the decision to retrench the
respondents was taken before the consultation process was initiated?
The Court a quo dealt with the matter on the basis that this was an
instruction from OPSCO to GFTS to retrench. OPSCO was part of
GFL.
GFL was the trustee of GFTS to whom Mr Lutman, the head of GFTS, was
accountable. Mr Rothman was asked whose decision it would
have had to
be to retrench the respondents. He testified that it would have had
to be Mr Lutman’s decision. As Mr Lutman reported
to GFL, the
trustee, it seems to me that in truth it was GFL which had the last
say because just as it had hired Mr Lutman, it also
could fire him.
It may be that it would not have lightly interfered with Mr Lutman’s
decision. However, it could instruct him to
dismiss employees and he
would have to carry out such an instruction. However, for purposes of
this case, not much turns on whether
it was Mr Lutman or GFL that had
the final decision to dismiss the respondents. Mr Lutman wrote in the
memorandum that OPSCO had
taken the decision that the respondents be
retrenched. He did not take the witness stand to say that the
decision lay with him and
he did not associate himself with the
decision of OPSCO nor did he take the witness stand to say that he
took the decision to retrench
the respondents only after the
consultation process had been completed. In those circumstances I am
satisfied, like the Court a quo,
that a final decision to retrench
the respondents was taken before the consultation process was
initiated and that, for that reason,
the consultation process that
took place in this matter did not comply with the requirements of sec
189. This rendered the dismissal
procedurally unfair.
[24] The
Court a quo also found that there was no fair or valid reason for the
dismissal of the respondents. On behalf of the appellants
it was
argued before us that such issue fell outside the issues that the
Court a quo was called upon to decide and that it erred
in deciding
it. The respondents argued that such issue was one of the issues that
the Court a quo was called upon to decide and that
its finding in
this regard was correct. In my view it is not necessary to decide
whether or not this was one of the issues that the
Court a quo had to
decide and, if so, whether its finding in that regard was correct.
This is so because the relief sought by the
respondents in the Court
a quo was compensation. They did not seek reinstatement. On appeal
they seek to defend the award of compensation.
In this case whether
the dismissal is substantively unfair or procedurally unfair will not
make any difference on the amount of compensation
that the
respondents are entitled to. In the light of all the above I conclude
that the appeal falls to be dismissed.
[25] With
regard to costs the Court a quo ordered GFTS to pay the respondents’
costs on the basis that both parties had asked that
they be awarded
costs if they were successful and, in the view of the Court a quo,
such an approach accorded with the requirements
of law and fairness.
On appeal it was argued on behalf of the appellants that the logic of
the approach adopted by the Court a quo
was that the respondents
should have been ordered to pay the second appellants’ costs
because the second appellant had successfully
resisted their attempts
to obtain a finding that they had been employed by it. I agree with
this submission. Accordingly the Court
a quo erred in not ordering
the respondents to pay the second appellants’ costs. Logic dictated
that, if the award of costs depended
on who was successful, then the
second appellant was entitled to its costs because it was completely
successful against the respondents.
The taxing master will have to be
particularly careful in taxing bills of costs in this matter because
in the Court a quo the respondents
were successful in the end against
GFTS which substituted Gold Fields Trust (Pty)Ltd as first respondent
in the Court a quo and first
appellant on appeal and on appeal they
have also been successful against GFTS. However the second appellant
on appeal, i.e. second
respondent in the Court a quo, was successful
against the respondents both in the Court a quo and in this Court but
it and GFTS had
used the same attorneys and the same Counsel in both
the Court a quo and this Court .
[26] In
conclusion I make the following order:-
The
appeal by GFTS is dismissed and GFTS is ordered to pay the
respondents’ costs of the appeal.
The
appeal by the second appellant against the order of costs in the
Court a quo is upheld and the respondents are ordered to pay
the
second appellants’ costs on appeal jointly and severally, the one
paying, the others to be absolved.
The
order of the Court a quo on costs contained in par 65.3 of its
judgement is set aside and replaced with the following one:.
“
(a) GFTS
is ordered to pay the applicants’ costs
(b) The
applicants are ordered to pay the second respondent’s costs jointly
and severally, the one paying, the others to be absolved.
____________
Zondo
JP
I
agree.
____________
Nicholson
JA
I
agree.
___________
Page
AJA
Appearances
For
Appellant Mr Leech
Instructed
by Deneys Reitz Attorneys
For
1
st
,
2
nd
,
& 4
th
respondents Mr Pretorius
Instructed
by Niel Pretorius
For
the 3
rd
respondent Mr Higgins
Instructed
by Sampson Okes & Higgins Inc
Date
of Judgement : 29 May 2002