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[2012] ZALCJHB 137
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Gabela v Sizwe Medical Aid Fund (J2075/11) [2012] ZALCJHB 137 (17 January 2012)
REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not reportable
Case
no: J2075
/11
In the matter between:
NOMPUMLELO FAITH GABELA
..............................................................................
Applicant
and
SIZWE MEDICAL AID FUND
................................................................................
Respondent
Heard:
06 October 2011
Delivered: 17 January 2012
Summary: Urgent application
withdrawn. Costs of the suit the applicant having withdrawn the case
JUDGMENT
________________________________________________________________________
MOLAHLEHI J
Introduction
The respondent in this matter is
seeking costs against the applicant after the urgent application
which was launched against the
respondent was withdrawn. The order
which the applicant had sought with her urgent application reads as
follows:
‘
1.
The Applicant's non-compliance with the rules of this Honourable
Court relaying to service, filing, time limits and set down
is
condoned and the matter is dealt with as one of urgency in terms of
Rule 8.
2.
The Respondent is directed to commence its proposed disciplinary
inquiry against the Applicant as soon as possible in any case
by no
later than 24 October 2011 and by 19 October 2011at the latest to
furnish the Applicant with a copy of the charge sheet setting
out the
full details of the alleged acts of misconduct.
3.
It is declared that the proposed disciplinary inquiry proceedings is
to be held in terms of the Respondent's disciplinary policies
and
procedures and in terms of clause 17 of the Applicant's contract of
employment.’
The purpose of the application is
stated in the founding affidavit of the applicant at paragraph 5
thereof as follows:
‘
The
necessity for this application arises from the following. Although as
the Respondent's most senior employee, I have been on
suspension for
more than four weeks now. My continued suspension is proving to be
highly prejudicial more especially because of
the following:
Statements that are highly damaging to my reputation and which have
been attributed to the Respondent's Board of
Trustees have appeared
in the press. Although I am being paid for now, the bonus I will be
entitled to will be drastically refused
as its quantum dependent on
my being at work. As detailed later in this affidavit, I have urged
the Respondent on several occasions
to expedite the disciplinary
process and to confirm that the disciplinary hearing would be a
proper disciplinary hearing and a
"dispute" between it and
me to be resolved by mediation and or arbitration. Its response has
been totally unsatisfactory
and leaves me with no option but to seek
the intervention of this Honourable Court.’
The validity of the suspension of the
applicant was not challenged. However, the applicant dealt in
details with the background
facts that led to the suspension and how
that affected dignity. Those details are not relevant for the
purpose of this judgment.
The urgent application was set down
for 6 October 2011. Two days before the hearing, on 4 October 2011,
the applicant withdrew
its application. The respondent is now
claiming the cost on a punitive scale. The essential basis upon
which the respondent is
seeking cost is that it had advised and
warned the applicant before filing its answering affidavit in a
letter dated 3 October
2010. The relevant part of that letter reads
as follows:
‘
2.1.
the
applications was premature and not urgent.;
2.2.
the undertaking was made to the
Applicant's attorneys that they will be advised of the date of the
disciplinary inquiry after 30
September 2011 when the Respondent's
instructing attorney back in office;
2.3.
the application should, in the
result be withdrawn
."
Because
the applicant refused to heed the advice and withdraw her
application,
the respondent
says it had to file its answering affidavit on 4 October 2011. The
respondent contends that the applicant withdrew
its application few
days before the hearing because it was clear from the reading of the
answering affidavit that she did not
have a case. The respondent
further contends that the withdrawal was not made in accordance with
the provisions of paragraph
10 of the Court's directive in that the
applicant removed the matter from the roll without the consent of
either the presiding
judge or the Deputy Judge President.
It
is trite that the Labour Court has the power to award costs in terms
of section 162 read with section 158(1) (a) (vii) of the
Labour
Relation Act (LRA).
1
It has been held that costs will be
awarded in favour of a successful party unless the dictates of
fairness directs otherwise.
2
In terms of section 162 of the LRA,
the Court in considering the issue of
costs has to take into account the conduct of the parties in the
following respect:
‘
(i)
in proceeding with or defending the matter before the Court; and
(ii)
during the proceedings before the Court’
.
In the present instance, not only was
the applicant warned that there were no merits in her application,
an undertaking was made
to look into the issue as soon as the
respondent’s attorney was back in office. It was not as though
the respondent has
taken a clear stand that it will not meet the
demand of the applicant.
It is further my view that although
the applicant did finally withdraw her application, she did that
only once the respondent
had already filed its answering affidavit
which could have been avoided had the applicant acted reasonably.
The applicant's application
was also devoid of merits and was
unnecessary.
In light of the above, I am of the
view that fairness dictates that the applicant is to pay the costs
of the respond on the attorney
and scale.
Order
The applicant is ordered to pay the
costs of the respondent on own attorney and client scale.
________________
Molahlehi J
Judge of the Labour Court of South
Africa
APPEARANCES:
FOR THE APPLICANT: Adv P G Seleka
instructed by Maserumule INC
FOR THE RESPONDENT: Mabuza Attorneys
1
66
of 1995.
2
See
NUM v Coin Security
Group (Pty) Ltd t/a Protea Coin
Group
(2011) 3 2 ILJ 137 (LC).