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[2015] ZALCCT 30
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Philander and Others v La Maison (C 596/2013) [2015] ZALCCT 30 (17 April 2015)
REPUBLIC
OF SOUTH AFRICA
The Labour Court
of South Africa, CAPE TOWN
Judgment
Case
No: C 596/2013
DATE:
17 APRIL 2015
Not
reportable
Of
interest to other Judges
In
the matter between:
CHRISTIAAN
PHILANDER
.........................................................................................
First
Applicant
JACOBUS
BURGER
...................................................................................................
Second
Applicant
ADAM
LOUW
................................................................................................................
Third
Applicant
COMMERCIAL,
STEVEDORING, AGRICULTURAL
AND
ALLIED WORKERS UNION
(“CSAAWU”)
..................................................
Fourth
Applicant
And
LA
MAISON Respondent
Delivered:
17 April 2015
Summary:
Application for condonation in application for leave to appeal.
RULING
ON CONDONATION
STEENKAMP
J
Introduction
[1]
The fourth applicant, CSAAWU, seeks leave
to appeal against the costs order only of my judgment handed down on
29 July 2014. The
application for leave to appeal is seven months
late. It also seeks condonation.
[2]
This application for condonation and for
leave to appeal against the order of costs only bears a marked
resemblance to that involving
the same union in
CSAAWU
v Steytler Boerdery
(C 592/13). In that
case, the union’s application for leave to appeal was eight
months late. I refused condonation, with
costs, on 25 March 2015. The
union’s reasons for the excessive delay in bringing this
application are almost
verbatim
the same as in
Steytler
.
Yet it persists with this application.
[3]
The fourth 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 three of
its members who were
dismissed by the respondent, La Maison, for
participation in an unprotected strike and further misconduct.
[4]
In the judgment
a
quo
it was found that the dismissals
were fair. The union does not take issue with that finding.
[5]
The union seeks leave to appeal only
against the costs order. In deciding to award costs, I took into
account the following factors
“
Die
applikante, wel wetende dat hul optrede, in Philander se woorde, “van
dag een af” onbeskermd was, het roekeloos
voortgegaan met hul
wangedrag. Hulle is hierin gesteun deur hul vakbond, CSAAWU. Selfs
nadat hulle uiteindelik teruggekeer het
werk toe, het die werkers
weer weggebly sonder enige rede. Hulle het ‘n redelike opdrag
van die werkgewer geweier. Hul optrede
was deurgaans roekeloos en
uitdagend. Die werkers het, as gevolg van hul wangedrag, hul werk
verloor. Hulle sal waarskynlik ook
hul gratis verblyf moet prysgee.
Daarvoor kan hulle net hulself en hul vakbond blameer. Dis
onwaarskynlik dat die werkers in staat
sal wees om boonop die
respondent se koste te betaal. Die vakbond, aan die ander kant, het
sy lede se werksekerheid en verblyf
in gevaar gestel en hul ledegeld
gebruik om voort te gaan met hierdie hofaansoek ten spyte daarvan dat
hulle geen kanse op sukses
gehad het nie. Die
assistent-hoofsekretaris, Swart, het nie na sy lede se belange
omgesien nie. Die vakbond moet, gesamentlik en
afsonderlik met die
ander applikante, die werkgewer se koste betaal. Beide kante is deur
‘n advokaat verteenwoordig. Die
regskoste sal die koste van ‘n
advokaat insluit..”
[6]
I will deal with the merits of the
application for leave to appeal the costs order only under the
heading of prospects of success
in the condonation application.
Condonation
[7]
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
[8]
The judgment was handed down on 29 July
2014. The union’s then legal representatives were at court to
note judgment. So were
members of the union’s leadership. In
terms of rule 30(2) of this Court, the union had to deliver its
notice of application
for leave to appeal 15 court days later. It
only did so on 18 March 2015. It is seven months late. It is
obviously an excessive
delay.
[9]
The excessive delay of seven 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
[10]
Mr Swart says under oath that “the
judgment was transmitted to CSAAWU by Brink” of its then legal
representatives, Brink
& Thomas attorneys, on 14 August 2014. He
does not explain why his attorneys would wait for more than two weeks
before doing
so; neither did he mention that representatives of the
union were in court when judgment was handed down. It was left to the
respondent’s
representatives to point that out in the answering
affidavit. Swart then says that, “as a result”, the
application
for leave is out of time; but even if the union’s
attorneys only sent it the judgment two weeks after it had been
handed
down, that does not explain a seven month delay. The statement
is a
non sequitur.
[11]
Shortly thereafter, messrs Swart,
Christiaans (the general secretary) end their attorneys consulted
counsel, Adv Roseline Nyman.
Counsel advised them that the matter was
correctly decided. So did other legal advisors.
[12]
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”.
[13]
Mr Swart says that, five months later, in
December 2014, the union embarked on a fundraising campaign. Mr Swart
did not take the
Court into his confidence with regard to the outcome
of the fundraising efforts. Again, it fell upon the respondent to
place evidence
before the court that the union raised 100% of its
“target amount” of R115 000 in the “first
phase”
of its funding campaign to pay its legal costs, with two
more phases to follow. He also did not tell the Court that he and Mr
Christiaans
had already visited Sweden in September 2014 in support
of its fundraising campaign.
[14]
Five months after the judgment had been
handed down, Messrs Swart and Christiaans met with the union’s
current attorneys,
SERI. Brink & Thomas had not withdrawn as the
union’s attorneys of record. On 17 December 2014 the union
“instructed
them [SERI] 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”.
[15]
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. 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 two and
a half
months, until 18 March 2015, to deliver the application for leave to
appeal.
[16]
Swart now says that they had to have the
judgment translated. That is despite the fact that the union
expressly requested the judgment
to be drafted in Afrikaans, the home
language of the applicants, and despite the fact that both he and Mr
Christiaans are Afrikaans
speaking. In any event, it would take any
competent translator no more than two or three hours to translate the
17-page judgment.
He also says that they had to give the attorneys
“instructions on the precise scope of the appeal”,
despite the fact
that they had, months ago, accepted that the
judgment was correct on the merits, and that SERI had already advised
them to restrict
the “scope of the appeal” to the costs
order only. Swart also says that they had to “ascertain the
personal circumstances
of the first to third applicants”; he
does not explain how that may be relevant on appeal.
[17]
The explanation for the delay 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
[18]
The
union seeks leave to appeal against a costs order only. As this Court
set out in
Masuku
v Score Supermarket (Pty) Ltd
[3]
,
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.
[19]
As
the learned authors in
Erasmus
[4]
point out with reference to the High Court generally, the principles
in
Tsosane
v Minister of Prisons
[5]
continue to apply in that court. Briefly stated, these are:
19.1
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.
19.2
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.
19.3
Leave will more readily be granted where a
matter of principle is involved.
19.4
The amount of costs should not be
insubstantial.
19.5
The applicant for leave to appeal should
have reasonable prospects of success on appeal.
[20]
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.
[21]
The
Labour Relations Act
[6]
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”.
[22]
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.
[23]
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.
[24]
The
court
in
casu
exercised
its discretion in the paragraph quote earlier in this ruling. It took
into account the reckless conduct of the applicants;
the fact that
the union endangered it members’ livelihood by sanctioning and
supporting their misconduct; and the absence
of any prospects of
success in their referral to this court. That is not an improper or
capricious exercise of the discretion.
Contrary to the union’s
submissions in this application, the applicants’ conduct
in the unprotected strike giving
rise to their dismissal is a
relevant factor. For example, where striking workers engaged in
violent conduct, Van Niekerk J held
in
Tsogo
Sun Casinos
[7]
:
“
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
[8]
,
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”.
[9]
[26]
The union now says that it cannot afford to
pay costs. But it placed no evidence in that regard before the court
a quo
.
[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.
Conclusion
[28]
The delay of seven months in bringing this
application is excessive. The explanation therefor is a poor one. And
the union does
not have prospects of success in the application for
leave to appeal. It follows that the application for condonation must
fail.
[29]
With regard to the costs of this
application, the Court has considered the following:
29.1
The union has been advised by a number of
“legal specialists”, including senior counsel, that it
had no prospects of
success on appeal. What is more, less than a
month ago, in
Steytler
,
the same union, represented by the same attorneys, was unsuccessful
in a very similar application proffering the same reasons
for its
excessive delay. Yet it persists with this application, knowing full
well that it runs the risk of another adverse costs
order, given the
precedent in
Steytler
.
The
respondent has had to incur further costs, nine months after the
matter had been disposed of, to deal with a dead issue. It
has led to
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: B Schiff of Bagraims attorneys.
[1]
1962
(3) SA 531 (A).
[2]
[1999] 3 BLLR 209 (LAC).
[3]
(2013) 34
ILJ
147
(LC) paras 10-12.
[4]
Erasmus,
Superior
Court Practice
(ed D E van Loggerenberg) A1-50 (service 41, 2013).
[5]
1982 (3) SA 1075
(C) 1076E-1077B.
[6]
Act 66 of 1995.
[7]
Tsogo
Sun Casinos (Pty) Ltd t/a Montecasino v Future of SA Workers Union
(2012) 33
ILJ
998
(LC) para 14.
[8]
National
Union of Mineworkers v East Rand Gold and Uranium Co Ltd
1992 (1) (SA) 700 (A) 793 A-F.
[9]
My
emphasis.