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[2012] ZALCJHB 170
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Mageu Number One (Pty) Ltd v UPASA obo Members and Others (JR936/10) [2012] ZALCJHB 170; (2013) 34 ILJ 2048 (LC) (27 December 2012)
5
REPUBLIC OF SOUTH
ARFICA
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable
Case No: JR936-10
In the matter between:
MAGEU NUMBER ONE (PTY)
LTD
................................................................
Applicant
and
UPUSA OBO MEMBERS
......................................................................
1
st
Respondent
THE COMMISSION FOR
CONCILIATION,
MEDIATION AND
ARBITRATION
.......................................................
2
nd
Respondent
COMMISSIONER L M S
MELLO
N.O
...................................................
3
rd
Respondent
Date heard: 31 January
2012
Date of reasons: 27
December 2012
Summary: Cost order-
costs against a non-party to the proceedings. Union official
continuing to represent the employees even after
deregistration,
conduct improper and visited costs order against the individual.
___________________________________________________________________
JUDGMENT
___________________________________________________________________
MOLAHLEHI J
Introduction
On 31 January 2012, this
court made an order reviewing and setting aside the arbitration
award which had been made under case
number GATW 130 848-09.
The court, however, reserve judgement in relation to the costs which
had been prayed for against,
Mr Luthuli in his personal capacity.
It has regrettably taken
a very long time to make this judgment which was due to the fact
that after the order was made the file
was not diarised for
judgment, but erroneously filed away.
The review application
had been filed on behalf of the employees by the UPUSA whose general
secretary at the time was Mr Luthuli.
UPUSA was deregistered as a
trade union during 02 October 2009.
The applicant cancelled
the organisational rights of UPUSA after its deregistration by the
Registrar of the Labour Relations.
UPUSA referred a dispute to the
CCMA to challenge the decision of the applicant, cancelling its
organisational rights. The Commissioner
ruled that pending the
outcome the appeal before the Labour Court in terms of section 111
of the Labour Relations Act (the LRA),
UPUSA retained its
organisational rights with the applicant. In other words the
Commissioner found that the appeal which UPUSA
had filed with the
Labour Court stayed the implementation of the decision of the
Registrar pending the outcome of that appeal.
Grounds for review
The applicant challenged
the decision of the Commissioner on the grounds that the
Commissioner committed a gross irregularity
in that he made a
material finding which a reasonable decision maker could not have
reached. The applicant further contended
that the Commissioner made
a material mistake of law in finding that the lodging of an appeal
suspended the effect of the deregistration
of UPUSA.
Evaluation
The law regarding the
status of the decision of the Registrar concerning cancellation of
the registration of a trade union was
considered by this court in
CCMA v
Registrar of Labour Relations and others
1
.
In that case the court found that the decision of the Registrar
concerning the cancellation of registration of a trade union
is not
suspended by an appeal to the Labour Court in terms of section 111
of the LRA
2
.
It is trite law that a
material error in law made by the Commissioner is a ground for
reviewing the arbitration award.
3
In light of the decision
in
CCMA
v Registrar,
the
decision of the Commissioner that the appeal which UPUSA had filed
with the Labour Court, suspended the effect of the decision
of the
Registrar from coming into effect pending the outcome of the appeal,
is patently wrong in law and accordingly makes the
decision
reviewable.
It was on the basis of
the above reasons that the Commissioner’s arbitration award
was reviewed.
The issue of costs
against Mr Luthuli
The applicant complained
that even after the cancellation of the registration of UPUSA, Mr
Luthuli continued to act as a representative
of the union in the
review application. In this regard the applicant list the following
incidence where Mr Luthuli acted as a
representative of UPUSA whilst
knowing that the union had been deregistered:
He appeared and argue
this matter on 25th of March 2010.
On 19 December he filed
a notice with the Labour Court withdrawing the review application
in this matter.
It
has been accepted that the Labour Court has in terms of section 162
of the LRA,
4
the
same powers, as those of the High Court under common law
5
of
being able to make costs orders against non-parties who have
supported the litigation or have some other connection to the
matter. The Labour Court derives the powers to make costs orders
against non-parties in terms of section 162 of the LRA which
reads
as follows:
“
(1)
The Labour Court may make an order for the payment of costs,
according to the requirements of the law and fairness.
(2)
When deciding whether or not to order the payment of costs, the
Labour Court may take into account –
whether the matter
referred to the Court ought to have been referred to arbitration in
terms of this Act and, if so, the extra
costs incurred in referring
the matter to the Court; and
the conduct of the
parties –
in proceeding with or
defending the matter before court;
(İİ
)during
the proceedings before the Court.
(3)
The Labour Court may order costs against a party to the dispute or
against any person who represented that party in those proceedings
before the Court.”
The parties envisaged in
section 162(3) of the LRA would in general include those parties
envisaged in section 161 of the LRA
which reads as follows:
“
In
any proceedings before the Labour Court, a party to the proceedings
may appear in person or be represented only by a legal practitioner,
a co-employee or by a member, an office-bearer or official of that
party’s trade union or employers’ organisation and,
if
the party is a juristic person, by a director or an employee.”
It follows from the
above that Mr Luthuli appeared and argued the matter for and on
behalf of UPUSA on 25 March 2010, knowing
that UPUSA was
deregistered and therefore what he did was improper. The same
applies to the notice of withdrawal which Mr Luthuli
filed with the
court on 19 December 2011, wherein he indicated that the matter was
withdrawn in terms of Rule 11 of the Labour
court rules, because
UPUSA was deregistered.
The conduct of Mr
Luthuli must be understood in the context where this court as
indicated earlier had ruled in,
CCMA v Registrar of Labour
Relations and others
, that the appeal launched by UPUSA against
its deregistration did not suspend the decision of Registrar
cancelling its registration.
Although he did not file
any answering papers in response to the application for costs
against him, Mr Luthuli, addressed the
letter dated 27 January2012
to the applicant's attorney of record and stated the following:
"Your letter dated
26/01/2012 directed to Mr Luthuli refers.
I put on record that you
have no rights to challenge Mr Luthuli as a result that he was
employed by the union UPUSA before.
The union is no longer
exists due to deregistration.
I warn you, in case you
demand cost to Mr Luthuli in person that will be denied and
challenged as Mr Luthuli no longer employed
by the deregistered
trade union UPUSA.
. . .
. . .
. . .
I warn you that any
action you might take against Mr Luthuli in person will be defended
and denied and seek a costs against him
personal and your company
for demanding course on the wrong and innocent person.
Noted that Mr Luthuli
has rights to sue you if you persist with your thread and denied
action.
Therefore Mr Luthuli’s
rights remains strictly reserved.”
At the hearing of this
matter Mr Luthuli argued that he was not liable for costs because he
dealt with the matter in his capacity
as the representative of
UPUSA.
I have already indicated
that the conduct of Mr Luthuli in the manner he continued to be
involved in this matter after the deregistration
of the trade union
was improper. I therefore find that Mr Luthuli, should in terms of
the provisions of section 162 (3) of the
LRA be held personally
liable for the costs.
Order
In the circumstances, Mr
Luthuli is ordered to pay the costs of these proceedings, jointly
severally with UPUSA, on the attorney
and client scale, the one
paying the other to be absolved.
Molahlehi J
Judge of the labour Court
Of South Africa
APPERANCES:
FOR THE APPLICANT: Dewey
De Souza Attorneys
FOR THE RESPONDENT: Mr
Elvis Luthuli of UPUSA (The union)
1
(2010)
11 BLLR 1151
(LC).
2
Section
111 of the LRA reads:
Appeals from registrar's decision
Within 30 days of the written notice of a decision of the
registrar, any person who is aggrieved by the decision may demand
in writing that the registrar provide written reasons for the
decision.
The registrar must give the applicant written reasons for the
decision within 30 days of receiving a demand in terms of
subsection
(1).
Any person who is aggrieved by a decision of the registrar may
appeal to the Labour Court against that decision, within 60 days
of-
the date of the registrar's decision; or
if written reasons for the decision are demanded, the date of
those reasons.
The Labour Court, on good cause shown, may extend the period
within which a person may note an appeal against a decision of the
registrar.
3
See
Maneche& Others
(2007) JOL 20281.
4
Skhosana&
others v Sasol Synthetic Fuels
[2000] 1 BLLR 101
(LC), Maluleke&
others
v
Johnson Tiles (Pty) Ltd
(2008) 11 BLLR 1065
(LC)
and
Moloi & another v Euijen& another
(1999) 20 ILJ
2829 (LAC).
5
Francarmen
Delicatessen (Pty) Ltd v Gulmini& another
1982 (2) SA 485
(W).