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
>>
2015
>>
[2015] ZALCCT 20
|
|
Sambo and Others v Boerdery (C592/2013) [2015] ZALCCT 20 (25 March 2015)
REPUBLIC
OF SOUTH AFRICA
The
Labour Court of South Africa, CAPE TOWN
Judgment
Case
No: C592/2013
DATE:
25 MARCH 2015
Reportable
Of
Interest to Other Judges
In
the matter between:
DANIEL
SAMBO
.............................................................................................................
First
Applicant
JACQUES
JAFTHA
....................................................................................................
Second
Applicant
ANDRIES
AMBROSE
...................................................................................................
Third
Applicant
DAWID
JOOSTE
.........................................................................................................
Fourth
Applicant
SALMON
SWARTS
.........................................................................................................
Fifth
Applicant
DANIEL
JONAS
..............................................................................................................
Sixth
Applicant
LINDA
AFRIKA
.........................................................................................................
Seventh
Applicant
ADEAN
BRUINTJIES
.................................................................................................
Eighth
Applicant
ESMERELDA
GROOTBOOM
.....................................................................................
Ninth
Applicant
DONOVAN
GROOTBOOM
.........................................................................................
Tenth
Applicant
CHRISTIAN
PAULSEN
...........................................................................................
Eleventh
Applicant
COMMERCIAL,
STEVEDORING, AGRICULTURAL AND ALLIED WORKERS UNION
(“CSAAWU”)
...............................................................................................................
Twelfth
Applicant
And
STEYTLER
BOERDERY
.....................................................................................................
Respondent
Delivered:
25 March 2015
Summary:
Application for condonation in application for leave to appeal.
Principles of appeals against costs orders and doctrine
of peremption
considered.
RULING
ON LEAVE TO APPEAL
STEENKAMP
J
Introduction
[1]
The twelfth applicant, CSAAWU, seeks leave
to appeal against the costs order only of my judgment handed down on
4 June 2014. The
application for leave to appeal is eight months
late. It also seeks condonation.
[2]
The twelfth applicant is the Commercial,
Stevedoring, Agricultural and Allied Workers’ Union (CSAAWU).
Its activities are
focused on the agricultural sector, rather than
stevedoring or other commercial activities. It represents eleven of
its members
who were dismissed by the respondent, Steytler Boerdery.
After this Court had dismissed its referral for lack of jurisdiction,
the union re-referred an unfair dismissal dispute to the CCMA.
Conciliation was successful. Steytler Boerdery reinstated all of
the
workers bar one (who had found other employment) without backpay, by
agreement and by way of settlement.
[3]
The union seeks leave to appeal only
against the following order:
“
The
applicants are ordered to pay the respondent’s costs, including
the costs of counsel, jointly and severally, the one paying,
the
other to be absolved.”
[4]
I will deal with the merits of that
application under the heading of prospects of success in the
condonation application.
Condonation
[5]
In
considering the application for condonation, I have regard to the
principles set out in
Melane
v Santam Insurance Ltd
[1]
and
NUM
v Council for Mineral Technology
[2]
.
Extent
of delay
[6]
The
judgment was handed down on 3 June 2014 (and not, as the union’s
assistant general secretary, Karel Swart, says under
oath in his
founding affidavit in the application for condonation, on 29 July
2014).
[3]
I should add that Mr
Swart was present in court when the judgment was handed down on 3
June 2014 in open court. So were the union’s
then legal
representatives. In terms of rule 30(2) of this Court, the union had
to deliver its notice of application for leave
to appeal by 25 June
2014 (15 court days later). It only did so on 24 February 2015. It is
eight months late. It is obviously an
excessive delay.
[7]
The excessive delay of eight months,
compared to the prescribed time period of 15 days, must be assessed
together with the reasons
therefor and the prospects of success in
the application for leave to appeal.
Reasons
for delay
[8]
The union, represented by Brink &
Thomas attorneys, initially delivered an application for leave to
appeal on 17 June 2014.
Shortly thereafter, they consulted counsel,
Adv Roselyn Nyman. Counsel advised them, quite properly, that:
“
(i)
the Labour Court’s ruling was correct; and
(ii)
CSAAWU runs the risk of incurring further costs on appeal”.
[9]
Given that wise counsel, the union
instructed its attorneys to withdraw the application for leave to
appeal. They did so on 1 July
2014.
[10]
On
29 July 2014, this Court gave judgment against CSAAWU in an entirely
unrelated matter.
[4]
Again, Ms
Nyman – who represented the union in that litigation -- advised
the union that it was correctly decided. Mr Swart
says that the union
“did not seek further advice beyond what it had already
received as, firstly, the universal and undisputed
opinion of legal
specialists was that the cases were correctly decided, and secondly,
we were afraid to incur further costs from
our own counsel”.
[11]
This sound advice was subsequently
confirmed by one Ronald Wesso of Surplus People Project. Mr Swart
does not say when and in what
capacity Mr Wesso gave this advice.
Nevertheless, the union and its coalition partners were
ad
idem
that “the possibility of
appeal had finally been ruled out”.
[12]
Six months after the judgment and five
months after having withdrawn its application for leave to appeal, in
December 2014, the
union started a fundraising campaign to pay for
the legal costs awarded against it. According to Mr Swart:
“
As
news of the costs orders and fundraising campaign began spreading,
SERI raised the possibility of an appeal against the costs
order
granted against CSAAWU.”
[13]
SERI is the Socio-Economic Rights
Institute, a donor-funded institution that now represents the
applicants. It does not require
payment from its clients. Mr Swart
does not explain how SERI came to raise the possibility of an appeal;
he does not say who approached
whom and when, other than to say that
“there was a general reluctance about approaching …
SERI for advice”
as CSAAWU was mistaken as to its role.
Nevertheless, the union’s two senior officials, Messrs Swart
and Christians, met two
attorneys from SERI on 17 December 2014. The
union “instructed them on the matter and provided them with all
of the documents
in our possession. These included the judgments,
statements of case in both applications, costs orders and some
correspondence
from Brink”.
[14]
Despite this, Swart says, SERI could not
“finalise” the application for leave to appeal “without
a complete court
file and without an advocate settling the papers”.
Why this was necessary, he doesn’t explain. He also did not
explain
in his founding affidavit why they couldn’t simply
uplift the court file; in his replying affidavit, filed belatedly
after
both parties had filed their submissions, he says that the
union’s attorneys instructed correspondents to do that but that
the court was closed. He says that he attaches email correspondence
between SERI and the correspondents, but does not do so. Be
that as
it may, the union only obtained a copy of the files from its
erstwhile attorneys one and a half months later, on 30 January
2015.
And SERI’s attorney only collected it from the union’s
offices four days later, on 4 February 2015. And then
they took
another 20 days, until 24 February 2015, to deliver the application
for leave to appeal.
[15]
The explanation is a poor one. I will
nevertheless consider the union’s prospects of success in the
application for leave
to appeal the costs order
a
quo.
Prospects
of success / merits of application for leave to appeal
[16]
The union seeks leave to appeal against a
costs order only. Apart from that, it has withdrawn its earlier
application for leave
to appeal against the judgment, including the
costs order. The doctrine of peremption therefore has to be
considered.
Appealing
costs order
[17]
As
this Court set out in
Masuku
v Score Supermarket (Pty) Ltd
[5]
,
a decision to award costs (or not) is not readily susceptible to
appeal. It is only if the court committed a misdirection in the
exercise of its discretion that leave to appeal would be granted. The
prospective appellant would have to show that the court
a
quo
acted
capriciously, or upon a wrong principle, or in a biased manner, or
for unsubstantial reasons, or committed a misdirection
or
irregularity, or failed to exercise its discretion, or exercised its
discretion improperly or unfairly.
[18]
As
the learned authors in
Erasmus
[6]
point out with reference to the High Court generally, the principles
in
Tsosane
v Minister of Prisons
[7]
continue to apply in that court. Briefly stated, these are:
18.1
Such leave is not lightly given –
first because costs are a matter of judicial discretion; and
secondly, because it is desirable
that finality should be reached
where the merits of a matter have been determined.
18.2
The court will not ordinarily grant leave
to appeal in respect of what has become a dead issue merely for the
purpose of determining
the appropriate order as to costs.
18.3
Leave will more readily be granted where a
matter of principle is involved.
18.4
The amount of costs should not be
insubstantial.
18.5
The applicant for leave to appeal should
have reasonable prospects of success on appeal.
[19]
In this case, the union has accepted the
advice of various legal experts that the judgment of the court
a
quo
is correct. It is a dead issue on
the merits. There is no issue of principle involved that has not been
definitively pronounced
upon by the court
a
quo
. And the union has no prospects of
success on appeal, given the discretionary nature of the decision on
costs.
[20]
The
Labour Relations Act
[8]
codifies
the principles applicable to costs orders in this Court in s 162. It
reads:
‘
(1)
The Labour Court may make an order for the payment of costs according
to the requirements of law and fairness.
(2)
When deciding whether or not to order the payment of costs, the
Labour Court may take into account –
(a)
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
(b)
the conduct of the parties –
(i)
in proceeding with or defending the matter before the Court; and
(ii)
during any proceedings before the Court”.
[21]
It must be noted that, in terms of s
162(1), the Court
may
order costs – in other words, exercise a discretion whether or
not to order costs – according to the requirements of
both law
and fairness.
[22]
The reference to the requirement of law has
generally been held to refer to the common law principle that costs
follow the result.
That is the general requirement of law in High
Court proceedings. But this Court sets itself apart in that the LRA
allows it to
take into account, also, the requirements of fairness.
[23]
The court
in
casu
exercised its discretion by
noting:
“
This
Court has a discretion, in law and fairness, to award costs.
The applicants persisted with their referral when the point
in
limine
was raised by the respondent,
albeit belatedly. Their counsel conceded, quite properly, that her
clients were dismissed, not on
8 January (as stated in their
referral) but on 21 January. Yet they persisted. This intransigent
attitude is also clear from the
refusal of the workers and the union
to stop the unprotected strike. The employer gave them numerous
opportunities to return to
work. They refused. There is no reason in
law or fairness why the employer should not be entitled to its costs.
The workers may
be indigent. The union is not. Should the workers be
unable to pay, the union – that has been actively involved and
representing
the applicants throughout – should do so.”
[24]
That
is not an improper or capricious exercise of the discretion. The
Court took into account the union’s decision to persist
with
the litigation despite the fact that its counsel conceded that this
Court had no jurisdiction to hear it. That is in accordance
with the
explicit provision of s 162(2)(a). And their conduct in the
unprotected strike leading to the stillborn referral is also
relevant. For example, where striking workers engaged in violent
conduct, Van Niekerk J held in
Tsogo
Sun Casinos
[9]
:
“
This
court must necessarily express its displeasure in the strongest
possible terms against the misconduct that the individual respondents
do not deny having committed, and against unions that refuse or fail
to take all reasonable steps to prevent its occurrence. Had
the
applicant not specifically confined the relief sought to an order for
costs on the ordinary scale, I would have no hesitation
in granting
an order for costs as between attorney and own client”.
[25]
Van
Niekerk J then ordered costs against the employees and the union,
jointly and severally. And in the
locus
classicus
of
NUM
v ERGO
[10]
,
decided under the old LRA but still relevant, as Mr
Wilson
submits in his argument, one of the factors taken into account by the
then Appellate Division was that:
“
NUM's
conduct
in
the negotiation process
led to justifiable unhappiness and frustration on the part of
Ergo”.
[11]
[26]
The union’s conduct in persisting
with the litigation is also apparent from paragraph [17] of the
judgment
a quo
:
“
They
[the workers] could not possibly have laboured under the impression
that there had been dismissed. They were represented and
advised by
CSAAWU throughout. Ms
Isaacs
conceded that the union conveyed to its members that they had not
been dismissed on 8 January. Yet the union did not withdraw the
referral of 8 January alleging an unfair dismissal on that date;
neither did it refer a fresh dispute to the CCMA after the actual
dismissal on 21 January.”
[27]
There is no prospect that another court
will interfere with the discretion properly and judicially exercised
by this Court in deciding
to grant costs as it did, having considered
the provisions of s 162 of the LRA. The union has no prospects of
success in its application
for leave to appeal.
Peremption
[28]
The union withdrew its initial application
for leave to appeal, including leave to appeal the costs order, on 1
July 2014. Eight
months later, it seeks to revive the application,
despite having acted on the “universal and undisputed opinion
of legal
specialists” that they had no prospects of success.
[29]
The
union accepts that, ordinarily, if a party files and then withdraws
an application for leave to appeal, its right to appeal
is perempted,
because it has clearly and unequivocally conducted itself in a manner
that is inconsistent with the intention to
appeal.
[12]
But Mr
Wilson
,
for the union, argued with reference to
SANDU
[13]
that the doctrine of peremption does not deny a party the right to
appeal if it would not be in the interests of justice to do
so.
[30]
But
SANDU dealt with an appeal against an interdict in circumstances
where the SCA held that the interdict should never have been
granted.
It is far removed from an attempt to appeal against a costs order
only in circumstances where the applicants had previously
abandoned
the application for leave to appeal and they accept that the
underlying judgment on the merits is unassailable. In this
case, it
is not in the interests of justice to depart from the general rule,
that is:
[14]
“
The
general rule that a litigant who has deliberately abandoned a right
to appeal will not be permitted to revive it is but one
aspect of a
broader policy that there must at some time be finality in litigation
in the interests both of the parties and of the
proper administration
of justice.”
[31]
For that reason also, the union has no
prospects of success in the application for leave to appeal.
Conclusion
[32]
For all these reasons, the union has no
prospects of success in the application for leave to appeal. It
follows that the application
for condonation must fail.
[33]
With regard to the costs of this
application, the Court has considered the following:
33.1
The union has been advised by a number of
“legal specialists”, including senior counsel, that it
had no prospects of
success on appeal. Yet it persists.
33.2
The respondent has had to incur further
costs, eight months after the matter had been disposed of (and after
the workers had been
reinstated by way of a conciliated agreement),
to deal with a dead issue.
33.3
The union has blown hot and cold in first
withdrawing its initial application for leave to appeal, then
reinstating it eight months
later. It has led to entirely unnecessary
and wasted time and costs for the respondent.
Order
The
application for condonation for the late filing of the application
for leave to appeal is dismissed with costs.
Steenkamp
J
Appearances
For
the Applicants: Stuart Wilson
Instructed
by:
SERI Law Clinic
For
the Respondent: Bagraims attorneys.
[1]
1962
(3) SA 531 (A).
[2]
[1999] 3 BLLR 209 (LAC).
[3]
Mr
Swart belatedly filed a replying affidavit on 18 March 2015, after
both parties had filed their submissions in terms of rule
30(3A) and
this Court’s Practice Manual, in which he says that that was a
“typing error”.
[4]
Philander
& others v La Maison
(2014) 35
ILJ
3222
(LC).
[5]
(2013) 34
ILJ
147
(LC) paras 10-12.
[6]
Erasmus,
Superior
Court Practice
(ed D E van Loggerenberg) A1-50 (service 41, 2013).
[7]
1982 (3) SA 1075
(C) 1076E-1077B.
[8]
Act 66 of 1995.
[9]
Tsogo
Sun Casinos (Pty) Ltd t/a Montecasino v Future of SA Workers Union
(2012) 33
ILJ
998
(LC) para 14.
[10]
National
Union of Mineworkers v East Rand Gold and Uranium Co Ltd
1992 (1) (SA) 700 (A) 793 A-F.
[11]
My
emphasis.
[12]
Lyn
& Main Inc v Mitha NO
2006
(5) SA 380
(N) para 10;
Dabner
v SA Railways & Harbours
1920
AD 583
at 594;
Fick
v Walter & anor
2005
(1) SA 475 (C).
[13]
Minister
of Defence v South African Defence Force Union
[2012]
ZASCA 110
(30 August 2012).
[14]
SANDU
(supra)
para
23.