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[2014] ZALCJHB 214
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Hotel Liquor Catering, Commercial And Allied Workers Union v Sheriff, Johannesburg and Others (J406/14) [2014] ZALCJHB 214 (24 June 2014)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, IN JOHANNESBURG
JUDGMENT
OF
INTEREST TO OTHER JUDGES
CASE
NO: J 406/14
In
the matter between:
HOTEL LIQUOR
CATERING, COMMERCIAL AND ALLIED WORKERS UNION
Applicant
AND
THE SHERIFF,
JOHANNESBURG
First
Respondent
GOOD LOGISTICS
SOLUTIONS
Second
Respondent
CARELSE
KHAN ATTORNEYS
Third
Respondent
Heard
: 29 May 2014
Delivered
: 24 June 2014
Summary
: (Stay of writ based on alleged invalidity of underlying order
– proper procedure
– appropriate alternative relief).
JUDGMENT
LAGRANGE,
J
Introduction
[1]
This matter came before the Court on the
return date of an interim order granted on 4 March 2014. In the
interim order the respondents
were restrained on an urgent basis from
attaching the assets of the applicant (‘the union’)
pending the final outcome
of the application. On 29 November 2013, a
writ was issued by the Labour Court in respect of a taxed bill of
costs issued by the
taxing master of the Labour Court in Cape Town on
19 November 2013.
[2]
The bill of costs arose out of a review
application brought under case number C440/2010, in which the parties
were cited as:
“
Hotellica
obo Mercia Marlese Groenewald (Applicant)
and
Good Logistics Solutions
(First Respondent)
CCMA (Second
Respondent)
Commissioner Alviso
Adams
(Third
Respondent)"
[3]
The bill of costs records a taxed amount of
R 226,921.94 derived from the attorney and client costs as between
the second and third
respondents in this application. On receiving
the bill of taxation the Secretary General of the applicant, Mr T
Zulu, asked staff
in the Cape Town office of the union to
investigate. He was advised that they had no knowledge of the union
having acted in the
matter for the individual applicant Marlese
Groenewald, who is cited in the judgement. He was also advised that
the CCMA had noticed
persons acting as representatives of the union,
which was a matter it was still investigating. He complained that a
letter was
sent to the third respondents requesting information about
the matter but no response was received.
[4]
Apart from disputing that the union had
acted in any capacity in the review application in question, the
union submitted that, as
a matter of law, the cost order was not made
against itself as such, but against the individual applicant,
Groenewald. In so far
as the union had been correctly cited as acting
on her behalf, which it disputed, that could only have been construed
as acting
in a representative capacity in terms of section 200 (1)
(b) of the Labour Relations Act 66 of 1995 ('the LRA'). In the
absence
of the court having made a cost award against the union
de
bonis propriis,
the cost award would
not be enforceable against the union even if it had been acting in
terms of s 200(1)(b).
[5]
The judgment handed down by the honourable
Justice Steenkamp, J on 31 May 2013 appears to have been an
ex
tempore
one and merely recorded that
the review application was "dismissed with costs on an
attorney-client scale". There is no
mention on the face of the
judgment that the cost order was made
de
bonis propris
. However the respondents
claimed that the order of costs on an attorney-client scale was "a
direct result of the conduct of
the union and the union official, a
Mr Khaya Somdyala”.
[6]
The respondents further contended that Mr
Somdyala was a recognised union official and representative of the
union as evidenced
by various arbitration awards handed down by the
CCMA in Cape Town. In support of this contention the respondents
submitted arbitration
awards dated 15 July 2002 and 17 May 2013 in
which he was cited as the union representative from Hotellica. In
reply, the union
claimed that Somdyala or ‘Somtyalo’ had
resigned from the union in 2004 and did not act as an official of the
applicant
thereafter.
[7]
The union’s replying affidavit
ostensibly attaches "the award" alleging that the address
used by ‘Somtyalo’
was not the same address as the
union’s Cape Town offices which are situated at Premier Centre,
Victoria Road, Observatory.
It appears from the affidavits and a
letter attached to the respondents’ answering affidavit that a
written request was indeed
made by the union to the third respondent,
the second respondent’s attorneys of record, to provide details
of the address
it had used to address documents to Hotellica in the
course of the review application, went unanswered. No explanation for
the
apparent lack of response to this request was provided by the
third respondent. Although the award in question which gave rise to
the review application was not provided by either party, other awards
in which Somdyala appears to have represented employees,
ostensibly
on behalf of the applicant, do indicate that the address he used for
communications with the CCMA was 7
th
Floor, 106 Adderley Street, Cape Town.
[8]
Although, the applicant could have provided
more corroboratory material about its actual office address in Cape
Town, it does appear
from the affidavits that the address used by the
putative official Somdyala, when he corresponded with the CCMA is a
different
one. In my view this does raise a genuine concern whether
or not this individual was fraudulently holding himself out as an
organiser
of the applicant and appearing in CCMA and court
proceedings. Given the apparent frequency of his participation in
arbitration
proceedings, judging from the CCMA awards lodged in the
court file, in which his name appears as a union representative, and
given
that he operates using an identifiable address, it must be said
that the applicant appears to have been quite remiss in failing
to
try and rectify matters by notifying the CCMA and the Labour Court
that Somdyala or ‘Somtyalo’ is not an official
of the
union. It could have done a lot more than merely conduct
investigations by this stage.
[9]
Nonetheless, the applicant has raised
sufficient doubt in my mind that the person appearing in the Labour
Court proceedings under
consideration was an official of the
applicant who was entitled to appear in its name as a representative
of the applicant's members
in the Labour Court. If Steenkamp, J had
been aware of these question marks over Somdyala’s status at
the time he dismissed
the review application it is possible that he
might well have issued a different cost order, irrespective of the
merits of the
review application.
[10]
If there was no doubt about Somdyala’s
identity as an official of the applicant and that the union had acted
in some capacity
in the matter, would the cost order necessarily have
been enforceable against the union as a party to the proceedings in
its own
right, or could it contend that in acting ‘on behalf
of’ Groenewald, it would simply have been performing the same
role that might be performed by an attorney acting on behalf of an
employee who has initiated review proceedings? Section 200 of
the LRA
provides:
'200 Representation of
employees or employers. — (1) A registered trade union or
registered employers' organisation
may act
in
any one or
more of the following capacities
in any dispute to which any of
its members is a party —
(a) in
its own interest
;
(b)
on
behalf of
any of its members ;
(c) in
the interest of any of its members .
(2) A
registered trade union or a registered employers'
organisation is entitled to be a party to any proceedings in terms of
this Act
if one or more of its members is a party to those
proceedings.'
(emphasis added)
[11]
Section 161 of the LRA which deals more
specifically with who may appear as a representative in Labour Court
proceedings states:
‘
In
any proceedings before the Labour Court, a party to the proceedings
may appear in person or be represented only by -
A
(a) a
legal practitioner;
(b) a
director or employee of the party;
(c) any
member , office-bearer
or official of
that party's registered trade union
or
registered employers' organisation....'
(emphasis
added)
[12]
The
applicant submits that when a union acts on behalf of a member under
s 200(1)(b), it is not a party to the proceedings but appears
purely
in a representative capacity. However, the weight of Labour Court
authority
[1]
relying on the
judgment of Sutherland, AJ as he then was in
Manyele’s
case
is that:
“
This
role of the official
[as
a representative of the member in terms of s 161(c)]
is
to be contrasted with the role of the union itself when it is a party
to proceedings, as contemplated in s 200(1) (b ) 'on behalf
of any of
its members'
(emphasis
added)”
[2]
[13]
If there was no material dispute about
Somdyala’s identity as official of the applicant at the time he
appeared or the applicant’s
participation in the proceedings, I
would be inclined to agree that, on the interpretation of s 200(1)(b)
above, the applicant
would be a party to the proceedings and would be
liable for costs in the review application.
[14]
However, on the papers before me, which
frankly leave much to be desired in terms of properly canvassing the
material issues in
sufficient detail, I am not satisfied that there
is sufficient evidence for the Court to determine the true status of
Somdyala
as an official of the applicant or whether the applicant was
acting in some capacity in the proceedings. While there is some basis
for doubting that he was representing the applicant as a party in the
review proceedings, I am not satisfied that the evidence
for and
against his representative capacity has been adequately canvassed in
the papers before the court. I am also mindful that
the monetary
value of the cost award is far from trivial and it is important to
both parties to obtain a final resolution on the
matter.
[15]
In
the circumstances, though I believe there is reason to be concerned
about whether the union ought to have been mulcted with costs
in the
matter, I do not wish to deprive the respondents of the cost order if
there is no reason for the order not to have been
granted. This might
ordinarily be one of those rare instances in which the court
mero
motu
refers
the matter to oral evidence.
[3]
[16]
However, it appears that the any judgment I
might make in these proceedings would effectively entail second
guessing whether the
cost order made by Steenkamp J ought properly to
have been granted, bearing in mind that, on the face of the order it
could be
enforced against the union in light of the interpretation of
s 200(1)(b) above. In effect, the applicant is saying that the order
was erroneously granted in its absence as an affected party.
The appropriate procedure for dealing with that is by way of
a
rescission application under s 165 of the LRA, even though an interim
interdict may have been warranted to stay the writ on an
urgent basis
pending the final determination of the union’s claim that
Somdyala effectively misrepresented its involvement
in the matter.
[17]
In light of the above, it is apparent that
it is not an alleged defect in the writ which the applicant seeks to
rely on to set it
aside but an alleged problem with the underlying
causa
for
the writ, which is the cost order itself. It would be inappropriate
for the reasons stated, for this court to determine that
in these
proceedings, but at the same time, the applicant has raised
sufficient doubt in my mind about whether the cost order against
it
ought properly to have been made. It seems more appropriate therefore
to stay the execution of the writ pending the determination
of the
real cause of complaint in the proper forum, rather than granting and
order which indirectly has the effect of placing the
legal validity
of the order in doubt.
[18]
An order to give effect to this appears to
me, to be the competent alternative relief on the evidence before me,
coupled with suitable
protection of the respondents’ interests.
Costs
[19]
It should be apparent that the applicant
has approached its application for final relief in this matter using
an inappropriate procedure
to indirectly set aside not simply the
writ but the original cost order, even if urgent interim relief might
have been justified.
In the circumstances, it should not be entitled
to its costs, in my view.
Order
[20]
In light of the above analysis,
20.1
The execution of the writ issued under case
number C 440/2010 on 29 November 2013 is stayed pending the outcome
of an application
to rescind the cost order in the same matter, which
must be filed with the registrar of the Labour Court in Cape Town.
20.2
The order in paragraph 20.1 above shall
lapse automatically if the applicant fails to file the said
rescission application by 24
July 2014.
20.3
No order is made as to costs.
_______________________
R LAGRANGE, J
Judge of the Labour
Court of South Africa
APPEARANCES
APPLICANT:
J Nkosi instructed by Nkabinde Attorneys
FIRST
RESPONDENT:
C de Kock instructed by C K Attorneys
[1]
See
e.g
Fakude
and others v Kwikot (Pty) Ltd
(2013)
34
ILJ
2024
(LC)
,
at 2031, para [26] and, more particularly
Simelane
and others v Letamo Estate
(2007)
28
ILJ
2053 (LC)
at
paras
[41] –[42]. In the latter case a cost order was made against a
union acting on behalf of its members under s 200(3)
on the basis
that it was a party to the dispute.
[2]
Manyele
and others v Maizecor (Pty) Ltd and another
(2002)
23
ILJ
1578 (LC)
at
1584, para [16].
[3]
See
e.g
[zRPz]
Santino
Publishers CC v Waylite Marketing CC
2010
(2) SA 53
(GSJ)