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[2011] ZALCJHB 250
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Ramadiba v Limpopo Legislature and Others (J 2568/2010) [2011] ZALCJHB 250 (20 December 2011)
Not reportable
Of interest to other judges
REPUBLIC OF
SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA,
JOHANNESBURG
JUDGMENT
case
no: J2568/2010
In the matter between:
RAMADIBA:
MOTLATSO ANGELINA
........................................
APPLICANT
and
LIMPOPO
LEGISLATURE
......................................................
1
st
Respondent
MAAKE:
JOSIAS SELLO N.O.
..............................................
2
nd
Respondent
COMMISSION
FOR CONCILIATION,
MEDIATION
AND ARBITRATION
............................................
3
rd
respondent
NGOBENI:
EVA N.O.
................................................................
4
th
respondent
Heard
:
20 December 2011
Delivered
:
20 December 2011
Summary: Application in terms of section 165 of LRA to
vary/rescind an order of the Court. The test for an order of costs
de
bonis propris
vs attorney and client costs examined in the
light of the CC judgment of President of the Republic of South Africa
v Quagliani and
others. Application to vary the order granted, with
the costs order varied from costs
de bonis propris
to attorney and client costs
JUDGMENT
HARDIE AJ
This is an application to rescind an order of Molahlehi J handed
down in Applicant’s absence on 18 January 2011, brought
in
terms of section 165 of the Labour Relations Act 66 of 1995
(hereinafter “the Act”), which application is being
opposed by the First Respondent. In terms of section 165 of the Act,
the Labour Court, acting of its own accord or on the application
of
any affected party, is entitled to vary or rescind a decision,
judgment or order.
The order sought to be rescinded or varied by the Applicant reads as
follows: : “Having read the documents and having considered
the matter: IT IS ORDERED THAT: 1. The Applicant’s application
is dismissed with costs
de bonis propris
”
The pertinent chronological sequence of events which led to the
order being granted, is as follows. On 20 December 2010, the
Applicant delivered an application for certain declaratory orders
and certain ancillary relief under this case number (hereinafter
“the main application”). In the Notice of Motion, the
Applicant indicated that the main application would be made
on 18
January 2011 or as soon thereafter as the application may be heard.
On 3 January 2011, the First Respondent served a notice
of intention
to oppose the main application per facsimile and indicated
inter
alia
that the First Respondent would file an answering affidavit
once the Applicant had complied with the relevant rules, without
specifying which rules were being referred to. Despite two
facsimiles from the Applicant’s attorneys to the First
Respondent’s
attorneys seeking to clarify what was meant by
this and enquiring when the answering affidavit could be expected,
the
dies
for the delivery of the answering affidavit in the
main application came and went.
On 17 January 2011, the Applicant’s attorney attended upon the
Registrar of the Court and for various reasons, the date
for the
hearing of the main application was changed to 20 January 2011. The
Applicant’s attorney never notified the First
Respondent’s
attorneys of this, who duly attended the Labour Court to argue in
opposition to the main application. The
file was duly uplifted from
the Registrar by the First Respondent’s attorneys, and an
order dismissing the main application
with costs
de bonis propris
was obtained in the Applicant’s absence. This is the order of
Molahlehi J which the Applicant in this application is seeking
to
rescind or vary.
Applicant is the
dominus litus
in the main application. She
gave the First Respondent notice that she would be proceeding with
that application on 18 January
2011, and never disabused it of that
fact. The First Respondent was therefore entitled to make
preparations to oppose and to
appear to oppose the main application
on 18 January 2011, despite not having delivered an opposing
affidavit which it was not
obliged to do. The Applicant’s
attorney’s conduct in attending the Court on 17 January 2011
at the eleventh hour,
and obtaining a new set down date from the
Registrar on 20 January 2011 without following formal process of
setting the matter
down or notifying the First Respondent’s
attorneys in any way that he was doing so, entitled the First
Respondent to seek
and obtain the order handed down on 18 January
2011 by Molahlehi J.
In fact, this was also an appropriate circumstance where the
Applicant’s attorney should have come to the Court on 18
January 2011 to ensure that there was no slip betwixt cup and lip,
particularly in the light of the fact that in the notice of
opposition faxed to the Applicant’s attorneys on 3 January
2011, the First Respondent’s attorneys also gave notice
that
First Respondent would be seeking costs
de bonis propris
because the main application was frivolous and vexatious, which they
duly did on 18 January 2011.
I now turn to consider the explanation for the Applicant’s
non- appearance on 18 January 2011 in the light of Molahlehi
J’s
order of
costs de bonis propris
. In doing so, I am guided by
the judgement of the Constitutional Court in
President
of the Republic of South Africa and Others v Quagliani; President of
the Republic of South Africa and Others v Van Rooyen
and Another;
Goodwin v Director- General, Department of Justice and
Constitutional Development and Others
2009 (8) BCLR 785
(CC) as per
Sachs J at paragraph 10 thereof
. In that matter, that Court
had to consider the nature of the costs to be awarded, arising from
inappropriate conduct on the
part of an attorney in seeking a
postponement of delivery of a judgement at the last minute. The
Court held that whilst the attorney’s
conduct evinced a lapse
of professional judgement, it was not so vexatious, grossly
negligent or in any other way professionally
wayward requiring an
order for costs
de bonis propris
. It instead ordered that
costs be paid on an attorney and client scale.
In this matter, having heard the Applicant’s attorneys
explanation for non- appearance on 18 January 2011, and more
particularly
that the First Respondent’s attorneys had not
responded to two of his facsimiles enquiring as to the future
conduct of
the matter, and the Registrar of the Court advised him on
17 January 2011 that the matter could not proceed on 18 January 2011
because it was not properly enrolled, that these factors could have
lulled him into a false sense of security, thus causing him
to
commit the lapse in professional judgment in neglecting to notify
the First Respondent’s attorneys that he had attended
the
Labour Court on 17 January 2011 and that the matter was no longer
proceeding on 18 January 2011, but on 20 January 2011.
This lapse
was not so vexatious, grossly negligent or any other way
professionally wayward that the Applicant’s attorney
should be
ordered to pay the wasted costs out of his own pocket. It did
however, cause the First Respondent unnecessary costs,
which costs
should instead be paid on an attorney and client scale.
Turning to the second element, I am not convinced that the
Applicant’s main application is without merit. On the face of
it, the Fourth Respondent’s decision that “the CCMA
lacks jurisdiction to determine the dispute further and you (the
Applicant) are therefore advised to re- refer the matter” as
communicated to the Applicant in a telefax message dated 04
December
2000
sic
(should read 2007) is open to challenge. I therefore
find that the Applicant has a
bona fide
claim that she should
be entitled to pursue.
The Applicant has satisfied me that her claim carries reasonable or
good prospects of success and she has also shown good cause
for why
the order of Molahlehi J should be varied.
Whilst the Applicant has been substantially successful in this
application, she is seeking an indulgence, and I thus do not believe
that this is an instance where it is appropriate to make an order as
to costs.
I therefore make the following order:
The order of Molahlehi J handed down on 18 January 2011 is varied as
follows:
The order dismissing the Applicant’s main application is
rescinded.
The Applicant is to pay the costs on an attorney and client scale
of the First Respondent, occasioned by it having to prepare
to
argue in opposition to the main application on 18 January 2011 as
well as its actual appearance on 18 January 2011, to do
so.
The Applicant and First Respondent are to bear their own costs in
this rescission application.
_______________________
S B Hardie
Acting Judge
APPEARANCES
APPLICANT: Adv G Shakoane and with him, Adv PM Ramoshaba
Instructed by MS Malatsi Attorneys, Pretoria
FIRST RESPONDENT: Adv JS Mphahlani
Instructed by Lokwe Leburu Attorneys, Roodepoort