About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Cape Town Labour Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Cape Town Labour Court, Cape Town
>>
2013
>>
[2013] ZALCCT 46
|
|
Sun International (Pty) Ltd t/a Table Bay v Commission for Conciliation Mediation And Arbitration and Others (C 636/2012) [2013] ZALCCT 46; [2014] 4 BLLR 413 (LC); (2014) 35 ILJ 1666 (LC) (12 January 2013)
REPUBLIC OF SOUTH
AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, CAPE TOWN
JUDGMENT
Case No: C 636/2012
Reportable
In
the matter between:
SUN
INTERNATIONAL (PTY) LTD t/a
THE
TABLE BAY
APPLICANT
And
COMMISSION
FOR CONCILIATION
MEDIATION
AND ARBITRATION
FIRST
RESPONDENT
DANIEL
DU PLESSIS
NO
SECOND
RESPONDENT
MOEGAMAT
ADIEL MARTIN
THIRD
RESPONDENT
Delivered:
12 December 2013
Summary:
Application
for leave to appeal by party who had not opposed review application
not competent. Applicant for leave to appeal ordered
to pay costs.
RULING ON COSTS IN
APPLICATION FOR LEAVE TO APPEAL
STEENKAMP
J
Introduction
[1] The third Respondent
(“Martin”) applied for leave to appeal in respect of my
default judgment dated 11 October 2013.
The preliminary question is
whether he can do so, given that he chose not to oppose the
applicant’s application for review.
[2] I ordered that the
arbitration award handed down by the Commissioner (the second
respondent) dated 14 July 2012 is reviewed
and set aside. I
substituted it with an order that Martin’s dismissal was fair.
[3] The proceedings
before this Court on 11 October 2013 were unopposed, Martin having
elected through the offices of his current
attorney, Isak Murison, to
file a notice of withdrawal of opposition on 23 May 2013.
The right to seek
leave to appeal
[4] It appeared to me
that Martin has no right to seek leave to appeal in these
circumstances. He chose not to oppose these proceedings
at the
relevant time, when the application for review was argued. He cannot
now elect to do so and ask the Court for leave to go
to the Labour
Appeal Court when it turns out that his choice not to oppose the
matter in Labour Court has had adverse consequences
for him.
[5] The Supreme Court of
Appeal (SCA) per Nugent JA in dealing with a similar application has
held:
‘
What also strikes
one as odd is that submissions on behalf of Mr Pitelli should be made
in this Court, when they could have been
made to the court below
before it made its orders, but were deliberately withheld. This is
not a court of first instance. It seems
to me that it would be most
unfortunate for a court of first instance to find its orders reversed
only because the litigant chose
not to tell the court why the orders
should not be made, and thought better to make these submissions to a
court of appeal only
after that had occurred.’
[1]
Appealability of the
default judgement
[6] It also seemed to me
that the default judgment of the Court
a quo
is not appealable
– it is not final in effect in that the default judgment of the
Court
a quo
is theoretically capable of being revisited in the
form of an application for rescission of judgment.
[7] According to section
166(1) of the LRA, only final judgments and final orders are
appealable:
‘
Any party to any
proceedings before the Labour Court may apply to the Labour Court for
leave to appeal to the Labour Appeal Court
against any final judgment
or final order of the Labour Court.’
[8] In the words of
Nugent JA in
Pitelli
:
‘
An order is not
final, for the purposes of an appeal, merely because it takes effect
unless it is set aside. It is final when the
proceedings of the court
of first instance are complete and that court is not capable of
revisiting the order. That leads one ineluctably
to the conclusion
that an order that is taken in the absence of a party is ordinarily
not appealable (perhaps there might be cases
in which it is
appealable but for the moment I cannot think of one). It is not
appealable because such an order is capable of being
rescinded by the
court that granted it and it is thus not final in its effect...
....
An
order made by default is by its nature not final in effect because it
is capable of being revisited, albeit that condonation
might be
required for the delay
...’
[2]
[Emphasis added]
[9] The fact that Martin
is unlikely to succeed with any application for rescission is beside
the point. This question too was considered
by Nugent JA:
‘
I am mindful of
the considerable hurdle that would need to be overcome by a litigant
who seeks to have an order rescinded when he
or she deliberately
allowed it to be taken by default, bearing in mind that in order to
succeed the litigant will need to provide
a “reasonable and
convincing explanation” for the default. But the appealability
of the order is dependent upon whether
it is capable of being
revisited and not upon whether such an application will succeed. And
if a litigant deliberately chooses
to permit an order to go by
default then he or she can hardly complain if a court refuses to
allow the matter to be re-opened.
A litigant cannot expect to blow
hot and cold depending on what is most advantageous at the time.’
[3]
Non – compliance
with Rules 30(1) and 30(2)
[10] In any event, the
application did not comply with Rules 30(1) and 30(2) of the Rules of
this Court in that it failed to set
out the “grounds of
appeal”.
[11] In terms of Rule
30(1) an application for leave to appeal to the Labour Appeal Court
may be made, “by way of a statement
of the grounds for leave,
at the time of the judgment or order.”
[12] In terms of Rule
30(2), “if leave to appeal has not been made at the time of
judgment or order, an application for leave
must be made and the
grounds for appeal furnished within 15 days of the date of the
judgment or order against which leave to appeal
is sought”.
[13]
For
purposes of Rules 30(1) and 30(2) the grounds of appeal must be
clearly and succinctly set out in clear and unambiguous language
so
as to enable the Court and the respondent to be fully informed of the
case the applicant seeks to make out and which the respondent
is to
meet in opposing the application for leave to appeal.
[4]
[14] Table Bay pointed
out that it does not know what case it is required to meet because:
14.1 the notice of
application for leave to appeal at paragraphs 1, 2, 3 and 4 relies on
speculative errors committed by the Court
a quo.
That these errors are
speculative is demonstrated by:
14.1.1 Firstly, the
recurrent phrase which governs all of these grounds – ‘it
is respectfully submitted that this Honourable
Court, erred in
finding,
to the extent that it did
, that the second respondent
had...’ (emphasis added); and
14.2.2 Secondly, the fact
that the notice of application for leave to appeal relies on findings
which were not made by the court.
Thus, the court ‘erred in
finding that the second respondent had committed misconduct...’
14.2.3 Thirdly, the fact
that the actual findings of the Court are nowhere challenged in the
notice of application for leave to
appeal.
14.2 Martin’s
heads of argument in respect of his application for leave to appeal
nowhere attack any finding made
by the Court but, instead, address
grounds of review raised by The Table Bay in its application to
review the arbitration award.
[15] In all the
circumstances, this application was incompetent and should have been
struck from the roll. However, I asked the
parties to file additional
submissions on the appealabilty of the judgment.
Costs
[16] After the Court had
requested further submissions on the appealability of the judgment,
Martin’s attorney submitted a
“note” on 3 December
2013 and conceded that the default judgment is not appealable. He
withdrew the application for
leave to appeal but he did not tender
costs. I issued a further directive on 4 December 2013 calling on the
parties to file submissions
on the question of costs in the abandoned
application by no later than 9 December 2013.
[17] Table Bay, in its
submissions dated 22 November 2013, specifically indicated that it
would seek an order that Martin pay the
costs of this application.
persisted with that submission.
[18] Martin, having
withdrawn the appeal without a tender for costs, appears to have
presumed that each party would pay its own
costs. If that is the
case, he seeks to flout a well established common law principle in
respect of costs in the context of a withdrawal
of a claim, i.e. the
party who withdraws a claim should pay its costs.
[19]
In terms of
section 162 of the Labour Relations Act,
[5]
the Labour Court may make an order for the payment of costs according
to the requirements of the law and fairness.
[6]
When deciding whether to make an order for the payment of costs, the
Labour Court may take into account the conduct of the parties
in
proceeding with or defending the matter.
[7]
[20]
Subject to
the discretion of the Court as to an order for the payment of costs,
very
sound reasons must exist why a respondent should not be entitled to
its costs. The applicant who withdraws his or her action
is in the
same position as an unsuccessful litigant because, after all, his
claim or application is futile and the respondent is
entitled to all
costs associated with the withdrawing of applicant’s
institution of proceedings.
[8]
[21]
The Court
is expected to take into consideration the peculiar circumstances of
each case, carefully weighing the issues in each
case, the conduct of
the parties as well as any other circumstances which may have a
bearing on the issue of costs and then make
such an order as to costs
as would be fair in the discretion of the Court.
[9]
Considerations such as
mala
fides
,
unreasonableness and frivolousness of the party’s actions would
justify the imposition of costs.
[10]
[22] I turn to consider
the reasonableness of Martin’s conduct who was advised by his
attorney:
22.1
In
circumstances where a claim has been withdrawn, the question to ask
in relation to costs has been whether the party who withdraws
a claim
in litigation was entitled to institute that claim in the first
place.
[11]
22.2 Martin
was not entitled to institute the present application, as he now
concedes.
22.3 This was
not a matter where the respondent in the review application was
unaware of the review. Martin was at all
times represented by
attorneys (first by Parker Attorneys and then by his current attorney
of record, Isak Murison) and he was
fully aware that Table Bay sought
an order to review and set aside the arbitration award in his favour,
the effect of which would
be to set aside the relief of
re-instatement and back pay awarded by the Commissioner.
22.4 Armed
with this knowledge, it was unreasonable for Martin to have taken a
wait-and-see approach to the litigation,
only to attempt to resurrect
it in an ill-conceived application for leave to appeal.
Martin’s election to withdraw
his opposition to Table Bay’s
review application resulted in the abandoning of his right to oppose
the review application.
22.5 Martin’s
subsequent application for leave to appeal resulted in the abuse of
the court process. That conduct
was unreasonable.
[23] Table Bay submitted
that it had to incur further unnecessary legal costs to oppose the
application for leave to appeal. I agree.
The costs in this
application could have been avoided if Martin acted reasonably.
Order
[24] The third
respondent, Martin, is ordered to pay the costs of the applicant (The
Table Bay) in the application for leave to
appeal.
Steenkamp J
APPEARANCES:
For
the Applicant:
Peter
Buirski
Instructed
by:
Salijee
Du Plessis Van der Merwe Inc.
For
the Third Respondent:
Isak Murison (Attorney).
[1]
Pitelli
v Everton Gardens Projects CC
[2010]
4 All SA 357
(SCA) at para 24.
[2]
Ibid
at paras 27 and 31.
[3]
Ibid
at para 34.
[4]
Songolo
v Minister of Law and Order
1996
(4) SA 384
(E) at 385I-J..
[5]
Act
66 of 1995 (“the LRA”).
[6]
Section 162 (1).
[7]
Section 162(2)(b)(i).
[8]
Germishuys
v Douglas Besproeiingsraad
1973 (3) SA 299
(NC) at 300D-E;
Waste
Products Utilisation (Pty) Ltd v Wilkes and Another (Biccari
Interested Party)
2003
(2) SA 590
(W) at 597A;
Reuben
Rosenblum Family Investments (Pty) Ltd and Another v Marsubar (Pty)
Ltd (Forward Enterprises (Pty) Ltd and Others intervening
)
2003 (3) SA 547
(C) at 550C-D.
[9]
Rudman
v Maquassi Hills Local Municipality and
Others
(J1472/13) [2013] ZALCJHB 166 (30 July
2013); (2013) JOL 30644
(LC)
at para 35, quoting
Mcpherson
v Teuwen and Another
(2009/27002) [2012] GPJHC 18 (22 February 2012).
[10]
Davidson
v Emvest Assest Management (Pty) Ltd
(JS306/2012)
[2013] ZALCJHB 255 (28 May 2013),
[2013] JOL 30940
(LC) at para 52.
[11]
See
Erasmus
v Grunow en ‘n Ander
1980 (2) SA 793
(O) 798D-H; cf. also
Chen
v Association of Arbitrators of SA and Others
2003 (4) SA 96
(D) 98I- 99B.