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[2012] ZALCD 17
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Padayachee v Registrar of the Labour Court, Durban and Others (D474/10) [2012] ZALCD 17 (24 January 2012)
5
REPUBLIC
OF SOUTH AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, DURBAN
JUDGMENT
Reportable
Case no D474/10
PRENITHA KANTHA
PADAYACHEE
............................................................
Applicant
And
THE REGISTRAR OF THE
LABOUR COURT, DURBAN
................
First
Respondent
THE MEMBER OF THE
EXECUTIVE COUNCIL
RESPONSIBLE FOR HEALTH
(KWAZULU NATAL)
..................
Second
Respondent
SIBONGILE MARILYN
ZUNGU NO
.................................................
Third
Respondent
Heard: In chambers
Delivered: 24 January
2012.
Judgment
CELE J
Introduction
[1] The applicant seeks
to review, correct and/or set aside a ruling of the first respondent,
the registrar, dated 25 August 2011
in this matter. In taxation
proceedings the registrar awarded the second and third respondents’
costs for counsel’s
fees amounting to R49 476.00. The
applicant seeks an order allowing counsel’s fees at R19 845.00.
None of the respondents
have opposed this application which was
considered in chambers and on the papers filed.
Factual background
[2] The applicant was in
the employ of the Department of Health, KwaZulu-Natal, the
Department, as a General Manager, Legal Services.
During July 2009,
September 2009 and up until the date of her suspension, she made
certain disclosures to the second and third
respondents, relating to
irregularities in the appointment of certain service providers. On 4
February 2010, the applicant was
then suspended from her duties on
the grounds of misconduct.
[3] On 7 April 2010, the
applicant was charged with misconduct and was given a notice to
attend a disciplinary hearing scheduled
for 12 April 2010. Together
with the Health and Other Services Personnel Trade Union of South
Africa (Hospersa), she lodged an
application in this court under case
D421/2010, interdicting the Department and other respondents therein
from proceeding with
the disciplinary enquiry against her, pending an
action which she was yet to bring. Hospersa had launched the
application as a
party and it appointed Llewellyn Cain Attorneys to
represent the applicants. A rule nisi was granted by this court on 21
May 2010,
staying the disciplinary hearing pending the results of an
application which the applicants were to lodge and the finalisation
of a referral brought by the applicants to the Public Health and
Social Development Sectoral Bargaining Council.
[4] In June 2010, the
applicant and Hospersa launched an application under case number
D474/2010, alleging that the decision to
suspend and charge the
applicant was premised on the disclosures she had made under the
Protected Disclosure Act. Hospersa withdrew
as a party in both
matters, on 22 July 2010 in case D474/10 and on 28 July 2010 in
D421/10. On 22 July 2010, the applicant appointed
new attorneys,
Norton Rose South Africa, incorporated as Deneys Reitz.
[5] On 3 September, the
applicant filed her statement of claim in respect of the unfair
labour practice dispute relating to the
protected disclosure claim
and on 14 September, she withdrew her application under case number
D474/10, with no tender of costs.
Hospersa paid all legal costs up to
the date of its withdrawal from the matter. The second and third
respondents then set the matter
down for argument for costs and on 1
February 2011, a costs order was issued against the applicant. They
then submitted a bill
of costs in the amount of R194 979.93
excluding VAT, to be taxed by the registrar. R121 201.30 of the
amount claimed
was a fee for two counsel of which R60 876.00 was
for the senior counsel, claimed for:
Drafting a letter and
reaching an agreement on time limits- R3 600.00;
Drafting an answering
affidavit and confirmatory affidavits- R45 000.00 calculated
at the rate of R1 184.00 per page
and
Consultation for 2
hours- on 21 June 2010-R4 800.00 of which R2400 plus VAT is
for the senior counsel.
[6] Upon presentation of
the bill to the applicant, she lodged a formal objection to a number
of items, including the item at issue,
numbered 87. An amount of
R49 476.00 was allowed by the registrar for senior counsel’s
fees on the basis that the applicant
had also initially opted to
engage the services of a senior counsel.
The ground for review
[7] The only ground for
review proffered by the applicant is that the amount allowed by the
registrar it too excessive when taking
into account that the senior
counsel was performing the functions of an attorney in respect of the
items claimed for and that the
registrar committed a gross
irregularity.
Evaluation
[8] In
Gundelfinger
v Norwich Union Fire Insurance Society Ltd,
1
court held:
‘
Of course if
a litigant wishes to employ eminent counsel who requires a very large
fee before coming into court, he is entitled
to do so, but the court
should not allow him to saddle the losing side with the costs of
specially large fee which he has thought
fit to allow his counsel.’
[9] Therefore the
eminence of counsel is not in itself a good reason for allowing a
larger fee than would ordinarily be applicable.
2
Further, in labour
matters a consideration of fairness underpins the determination of
costs in addition to the applicable law. There
is no specific
statutory provision limiting the powers of this court only to
granting or refusing costs. It must follow as well
that this court
has to be guided by the considerations of the law and fairness as to
what reasonable costs to grant or refuse a
litigant. In this matter,
the costs are on a party
and party basis. A reasonable amount of costs should therefore be
striven for. In the initial court proceedings,
it
was Hospersa that instructed senior counsel and the union paid for
those costs. The probe should turn on whether the matter being
considered was of such a complex or voluminous nature as to justify
burdening the losing party with a larger fee than is ordinarily
permitted.
[10] The drafting of a
letter and reaching an agreement on time limits was essentially the
function of an attorney and the client.
As there is no dispute that
the letter was drafted, it would not be proper to disallow this
charge
in
toto
as
suggested by the applicant but a reasonable charge is determined to
be R1 900.00. Ordinarily affidavits are drafted by attorneys
and
counsel will then settle the papers. An attorney’s fee of R6
745.00 for the draft and counsel’s fee for settling
at R9
500.00, totalling R16 245.00, as suggested by the applicant,
should have been upheld by the registrar as reasonable
costs. In
respect of the consultation fees, the attorney should have consulted
with the client in preparation for the drafting
of the affidavit. If
the matter was considered complex,
the
affidavit would then be sent to counsel to consider the draft in
chambers so as to settle it. The consultation fee ought to
have been
allowed by the registrar on the basis of the attorney doing it and
thereafter consulting counsel. In this regard the
reasonable amount
is determined to be R2 000.00 per hour, totalling R4 000.00.
[11] The difference
between the charge allowed by the registrar and the charge found by
court to be a reasonable amount is so great
that court is entitled to
intervene in this matter for fairness to prevail between parties.
[12] Accordingly the
following order will issue:
The second and third
respondents are allowed counsel’s fees of R22 145.00.
No costs order is made.
_________
Cele J.
APPEARANCES :
FOR THE APPLICANT :
Ms.M.Naidoo instructed by :Norton Rose South Africa(Inc.as Deneys
Reitz)
FOR THE RESPONDENTS:
ADV.G.O.van Niekerk SC instructed by :Nxumalo &Partners Attorneys
1
1916
TPD 341
at 348.
2
See
Ocean Commodities Inc.and Others v Standard Bank of South Africa
Ltd and Others
1984 (3) SA 15
AD at 22H.