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[2017] ZALCJHB 70
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Ngobeni v Xulu and Others (J1675/16) [2017] ZALCJHB 70 (3 March 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case
no: J 1675/16
In
the matter between:
FIKILE
ANNAH NGOBENI
Applicant
and
S
P XULU
DEPARTMENT
OF AGRICULTURE, RURAL
DEVELOPMENT,
LAND AND ENVIRONMENTAL
AFFAIRS,
MPUMALANGA
MEMBER
OF THE EXECUTIVE COUNCIL,
DEPARTMENT
OF AGRICULTURE, RURAL
DEVELOPMENT,
LAND AND ENVIRONMENTAL
AFFAIRS,
MPUMALANGA
First Respondent
Second
Respondent
Third
Respondent
Heard:
04 August 2016
Delivered:
04 August 2016
Reasons:
03 March 2017
REASONS
FOR JUDGMENT
TLHOTLHALEMAJE
J
[1]
This
matter came before the Court on an urgent basis on 4 August 2016.
An order in the absence of the respondents was
issued in the
following terms:
“
1.
The Non-compliance with the provisions in the Rules of this in
relation to form, time
limits and manner of service is condoned and
the matter is dealt with as one of urgency in terms of Rule 8.
2.
The further suspension of the Applicant by the Respondents is
unlawful and invalid.
3.
The Respondents are interdicted from denying the Applicant access to
her workplace.
4.
The First Respondent, in his personal capacity, is ordered to pay the
costs of
this application on a scale as between attorney and own
client.”
[2]
The
respondents have since requested reasons for the order, with specific
reference to the cost order against the first respondent
(Ms Xulu).
The above order was issued against the following background as can be
gleaned from the applicant’s unopposed papers.
[3]
The
applicant is a Director, Financial Accounting in the second
respondent (the Department). Ms Xulu, is employed as the Head of
the
Department. On 08 April 2016, the applicant was served with
a letter advising her that she was placed on precautionary
suspension
with effect from that date. Ordinarily, this suspension would have
been for a period of sixty calendar days.
[4]
Following
her suspension, the applicant approached this Court on 28 July 2016
under case number J1565/2016, and Gush J
set aside that
suspension. On 29 July 2016, the applicant reported for
duty, and was yet again served with a fresh letter
of suspension
issued by the Ms Xulu. Despite “
Extremely
Urgent”
correspondence from the applicant’s attorneys of record to
Ms Xulu advising her that the subsequent suspension was unlawful
and that it bordered on contempt of a court order, and further that
the applicant again intended to approach this Court on an urgent
basis, she ignored such warnings.
[5]
In
her founding affidavit, the applicant had submitted that Ms Xulu
had no legal authority to extend her suspension beyond
the prescribed
60 days in accordance with chapter 7, clause 2.7.2 of the SMS
Handbook.
[6]
It
is trite that this Court may make an order of costs, upon a
consideration of the requirements of law and fairness.
[1]
As already pointed out, the urgent application despite it being
properly served on the respondents was unopposed. In terms of prayer
5 of her Notice of Motion, the applicant specifically sought a cost
order against Ms Xulu,
de
bonis propiis.
[7]
Despite
clear warnings that the suspension of the applicant subsequent to
Gush J’s order of 28 July 2016 was unlawful
and invalid,
and despite further warnings that the applicant would approach the
Court, Ms Xulu appeared not to have been shaken
in her resolve
to keep the applicant suspended. It is apparent that Ms Xulu
completely ignored this Court’s order, which
is something that
cannot be countenanced from public officials.
[8]
Six
days had passed before the applicant could approach the Court on an
urgent basis in circumstances where there was no justification
for
Ms Xulu’s conduct. In my view, Ms Xulu, in the light
of the warnings she had ignored, the clear prayer in the
applicant’s
Notice of Motion, and the time afforded to her to reflect on her
conduct, deserves censure from this Court by
way of a punitive cost
order. There was no need for the applicant to approach the Court on
an urgent basis in view of the order
previously granted in terms of
which her suspension was set aside.
[9]
The
applicant therefore based on the considerations of law and fairness
cannot be expected to be burdened with any legal costs in
these
circumstances. The department, the MEC and ordinary tax payer can
equally not be expected to be burdened with costs in circumstances
where Ms Xulu, ought to have foreseen the consequences of her
actions. Those costs should be borne by her. It was in the light
of
all of these considerations that the order of cost was made on
4 August 2016.
__________________
E Tlhotlhalemaje
Judge of the Labour Court
of South Africa
APPEARANCES
For
the Applicant:
Adv. Digolamaje
Instructed
by:
Leketi Attorneys
For
the Respondents:
No appearance
Instructed
by:
No appearance
[1]
See
section
162
of the
Labour Relations Act 66 of 1995
which provides:
“
(1)
The Labour Court may make an order for the payment of costs,
according to the requirements
of the 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 the proceedings before the Court.
(3)
The Labour Court may order costs against a party to the dispute or
against any person
who represented that party in those proceedings
before the Court.”