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[2017] ZALCJHB 341
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BEMAWU and Others v South African Broadcasting Corporation SOC Ltd and Others; Solidarity and Others v South African Broadcasting Corporation SOC Ltd and Others (J1592/16; J1343/16) [2017] ZALCJHB 341; [2017] 12 BLLR 1237 (LC); (2018) 39 ILJ 241 (LC) (15 September 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA JOHANNESBURG
Reportable
Case
No: J 1592/16
In
the matter between:
BEMAWU
First
Applicant
AND
OTHERS
Second to Fourth Applicants
and
SOUTH
AFRICAN BROADCASTING
CORPORATION
SOC
LTD
First Respondent
HLAUDI
MOTSOENENG
Second Respondent
MALAKO
SIMON
TEBELE
Third Respondent
and
Case no: J 1343/16
In
the matter between:
SOLIDARITY
First Applicant
AND
OTHERS
Second Respondent to Fifth Applicants
and
SOUTH
AFRICAN BROADCASTING
CORPORATION
SOC
LTD
First Respondent
HLAUDI
MOTSOENENG
Second Respondent
MALAKO
SIMON
TEBELE
Third Respondent
Date
of Order: 8
September 2107
Date
Reasons delivered: 15 September
2017
REASONS
FOR ORDER
GUSH,
J:
[1]
In this matter I handed down an order
regarding the apportionment of the costs on Friday 8 September 2017
and indicated that I would
give reasons for the order later. These
are those reasons.
[2]
The order is attached to the reasons.
[3]
In both the judgment by the Honourable Lagrange J (J1342/16
Solidarity) and my order, on 26 and 28 July 2016 respectively, the
determination of the final apportionment of the costs “between
the respondent [South African Broadcasting Corporation: SABC]
and any
of its officials or employees” was postponed
sine die
.
[4]
Specifically:
4.1 In Lagrange, J’s
judgment he ordered:
“
79.5
Within five days of this order, Seboleto Dithlakanane, the
respondent’s General manager: radio news
and current affairs
and Molopo S Tebele, acting executive: news and current affairs, must
file an affidavit showing course why
they should not personally be
held liable for part of the costs of this application, such costs to
be paid on an attorney and client
scale including the cost of two
counsel.
79.6
The determination of the final apportionment of liability for payment
of the applicant’s costs
of the application including the costs
of two counsel,
as
between the respondent and any of its officials or employees
is postponed
sine
die
,
and may be enrolled by any party for determination once 20 days have
elapsed from the date of this order”
.
[1]
(My emphasis)
4.2 In the second
application I ordered the respondent (SABC) to file an affidavit
indicating which of its officials
were involved in the decision to
terminate the contracts of employment and for the officials so
identified to in turn file affidavits
to show cause why they should
not be held personally liable for the costs and:
“
The
final determination of the apportionment of the liability for payment
of the costs of the application (such costs to be paid
on the
attorney and client scale and including the costs of two counsel)
as
between the respondent and any of its officials or employees may be
enrolled
… together with the
matter of
Solidarity and Others vs. SABC
(SOC)
J1343/16
.”
(My emphasis)
[5]
In
the
Solidarity
matter Lagrange J, in dealing with the liability for costs, referred
to both “the reckless regard for the pending applications
when
the decision to dismiss was made” and to the first respondent’s
decision to persist in opposing the application
after agreeing to the
order in the Helen Suzman Foundation application
[2]
.
[6]
As a consequence of my order that the matters be dealt with together
the applications were consolidated in order to determine
“the
final apportionment of liability for payment of the applicant’s
costs” in both matters.
[7]
It is appropriate to set out the chronology of events that culminated
in the Court having to consider the question of costs.
In so doing I
simply summarise the facts and circumstances that are more fully
dealt with in the pleadings and the judgment as
they may relate to
the question of costs.
7.1
On 26 May 2016 the first respondent issued what became known as the
Protest Policy. The
essence of this policy is dealt with in detail in
Lagrange, J’s judgment.
7.2
It is clear from the press statement issued at the time and in
numerous statements thereafter
that the second respondent was the
author of or at the very least, emphatically associated himself with
the policy. His role and
responsibility in the execution and
application of the policy became clear in the outcome of the Helen
Suzman Foundation’s
application in the North Gauteng High
Court.
7.3
Shortly after the Policy was issued certain of the applicants were
summoned by the second
respondent and made it clear that criticism or
disregard of the Policy would not be accepted.
7.4
At subsequent meetings a number of the individual applicants voiced
their disagreement with
the Policy. This led to the suspension of a
number of the individual applicants by the respondent. Thereafter
notices to attend
disciplinary enquiries were issued.
7.5
The Protest Policy attracted widespread criticism that led to a
complaint being laid with
the Complaints and Compliance Committee
(CCC) of the Independent Communications Authority of South Africa
(ICASA).
7.6
On 11 July 2016 the CCC held that the Protest Policy was in conflict
with the duties of
the first respondent as a public broadcaster, was
invalid in terms of the Broadcasting Act read with sections 16, 192
and 39(2)
of the Constitution of South Africa.
7.7
Ironically at the same time the ICASA (CCC)’s finding was
delivered. The first respondent
was in the process of adding more
charges of misconduct levelled at the individual applicants.
7.8
In response to the ICASA finding the applicants requested an
undertaking that their suspensions
be reversed and disciplinary
action stopped.
7.9
The first respondent initially indicated that it would not comply or
the ICASA (CCC) finding
as it intended applying for the judgment to
be reviewed and set aside and therefor would not accede to the
applicants’ request.
7.10 Immediately
prior to their dismissal the applicants in the
Solidarity
matter
had filed the urgent application to set aside their suspensions; and
after their dismissals, for their dismissals to be set
aside.
7.11 Notwithstanding
the ICASA finding; a request by the applicants’ attorneys that
the disciplinary action
against the applicants be withdrawn; or the
pending application to the Constitutional Court and to this Court,
the first respondent
proceeded to dismiss the individual applicants
on 18 and 19 July 2016.
7.12 Shortly thereafter
the applicants in the
BEMAWU
matter filed a similar urgent
application.
7.13 Before the
applicants’ urgent application could be heard, on 20 July 2016
the application by the Helen Suzman
Foundation in the North Gauteng
High Court for an interdict preventing
inter alia
the first
and second respondents from implementing or enforcing the protest
policy came before that court.
7.14 On 20 July 2016
the first and second respondents agreed to an order in the North
Gauteng High Court which
order interdicted them from giving effect
to, implementing or enforcing the Protest Policy.
7.15 Despite this,
on 22 July 2016, when the
Solidarity
matter was heard it was
vigorously opposed by the first respondent.
7.16 Judgment reinstating the
applicants in that matter was handed down on 26 July 2016.
7.17 Two days later
on 28 July 2016 the
BEMAWU
application was heard. The first
respondent did not appear nor indicate to the Court what its attitude
to the application was.
[8]
In considering the question of costs it is clear from section 162 of
the Labour Relations Act
[3]
(LRA) that the Court has the discretion to make an order for the
payment of costs according to the requirements of law and fairness.
[9]
In exercising this discretion the Court may take into account:
“
(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.”
(my
emphasis)
[10]
This specific provision requires the court, in exercising its
discretion when awarding costs, to specifically consider the
conduct
of the parties in pursuing a matter before the court.
[11]
In this matter the two pertinent issues to be considered in
determining a just and equitable apportionment of the costs relate
to, firstly, the conduct of the first and second respondents
regarding the decision to pursue their continued opposition to the
applications and secondly to the decision to dismiss the individual
applicants.
[12]
It is common cause that the suspension and dismissal of the
individual applicants was as a direct consequence of the Protest
Policy.
[13]
The Protest Policy was found, in no uncertain terms to have been
unlawful, unconstitutional and offensive. Firstly, by ICASA
and then
confirmed BY CONSENT in the interdict granted in the North Gauteng
High Court. It bears repeating that in the Helen Suzman
foundation
application the order interdicted the first and second respondents
from giving effect to, implementing or enforcing
the Protest Policy.
[14]
From the affidavits filed in this matter there can be no doubt that
the second respondent was if not the author, an enthusiastic
proponent of the Protest Policy and its application in respect of the
employees of the first respondent; So much so that the interdict
applied to him personally.
[15]
In the same vein it is abundantly clear that the second respondent
was aware of the disciplinary proceedings involving the
individual
applicants and the urgent applications that they had launched.
[16]
The order granted in the North Gauteng High Court by its very nature
and wording required the respondents to act. The second
respondent,
specifically, by consenting to the order, was obliged to act in
accordance therewith.
[17]
The second respondent offers no explanation whatsoever for his
inaction and failure to comply with the interdict by reversing
the
dismissals and not opposing the urgent applications.
[18]
During argument the second respondent’s counsel expressly
refused to deal with this issue confining his argument only
to
submissions regarding who made the decision to dismiss the individual
applicants.
[19]
I am satisfied that the conduct of the second respondent as an
employee or official of the first respondent in taking no action
to
abide by, or comply with the interdict (thus necessitating that the
applicants’ were obliged to pursue their urgent applications)
justifies an order that he be ordered to pay the applicants’
costs jointly and severally.
[20]
The second concern regarding the apportionment of costs involved the
decision to dismiss. Whilst on the probabilities it is
clear that the
second respondent was aware of the dismissals and by implication
associated himself with them, the third respondent,
and falling
heavily on his sword, admits to having made the decision.
[21]
The second respondent’s answer to the issue regarding the
decision to dismiss is, simplistically, that he did not make
the
decision. That, in the light of the surrounding circumstances and the
second respondents position, there is no answer as to
why he should
not also be personally liable for the applicants’ costs,
jointly and severally, in this regard.
[22]
The affidavits filed by the third respondent are most unsatisfactory.
The third respondent is largely evasive to the extent
that his
counsel suggested that the Court ignore the contents of the
affidavits and find that the third respondent was merely a
cat’s
paw.
[23]
The essence of the third respondent’s explanation however is
that he took the decision to dismiss the individual applicants.
That
decision was as Lagrange, J described, made with “reckless
regard” for the circumstances. In the absence of a
denial, the
third respondent must have been aware of both the Helen Suzman
Foundation interdict and the pending hearing of the
urgent
applications before this Court. Having ostensibly enjoyed the
authority to dismiss the individual applicants he tenders
no
explanation for not having either withdrawn the dismissal or the
opposition to the urgent applications.
[24]
That being so, there is no reason why the third respondent should not
also be ordered to pay the applicants’ costs jointly
and
severally with the second respondent.
[25]
In both matters the issue of apportionment was to be determined
between the first respondent and the second and third respondents.
I
can find no reason why the first respondent should not be held liable
for the costs together with the second and third respondents.
Counsel
for the first respondent conceded that the first respondent should be
held liable for the costs (albeit only for a small
proportion
thereof).
[26]
It is for the reasons set out above that I made the order handed down
on 8 September 2017.
__________________
D.
Gush
Judge
of the Labour Court of South Africa
Appearances:
For
the Applicants:
Instructed
by
For
the Applicants:
Instructed by
In
Solidarity
: J1343/16
Advocate
Goosen
Serfontein
Viljoen and Swart
In
BEMAWU
: J1592/16
Advocate
H van der Riet SC
with
him E Tolmay
Webber Wentzel
For
the First Respondent:
Instructed
by
For
the Second Respondent:
Instructed
by
For
the Third Respondent:
Instructed by
Advocate
P Mokoena SC
with
him N Mayat-Beukes
Werksmans.
Advocate.
B Masuku
Majavu
Attorneys.
Advocate.
P C Pio
Welman Bloem
IN
THE LABOUR COURT OF SOUTH AFRICA JOHANNESBURG
Case
No: J 1592/16
Honourable
Justice
GUSH ORDERED on 08 September 2017
In
the matter between:
BEMAWU
First Applicant
AND
OTHERS
Second to Fourth Applicants
and
SOUTH
AFRICAN BROADCASTING
CORPORATION
SOC
LTD
First Respondent
HLAUDI
MOTSOENENG
Second Respondent
MALAKO
SIMON
TEBELE
Third Respondent
and
Case
no: J 1343/16
In
the matter between:
SOLIDARITY
First Applicant
AND
OTHERS
Second Respondent to Fifth Applicants
AND
SOUTH
AFRICAN BROADCASTING
CORPORATION
SOC
LTD
First Respondent
HLAUDI
MOTSOENENG
Second Respondent
MALAKO
SIMON
TEBELE
Third Respondent
ORDER
Having
read the documents and having considered the application:
The
determination of the apportionment of liability for the payment of
the costs involves the following hearings where costs were
reserved:
The
Application by Solidarity and Others (J1343/16) heard on 22 July
2016 and 26 July 2016;
The
application by BEMAWU and Others (J1592/16) heard on 28 July 2016;
The
Consolidation Application heard on 24 February2017;
The
joinder Application heard on 28 March 2017;
The
Adjournment on 16 August 2017; and
The
hearing regarding costs on 6 September 2017 and 7 September 2017.
I
have found it necessary in the interests of fairness to differentiate
between the various hearings and accordingly make different
costs
orders in respect of each of the hearings set out above.
IT
IS ORDERED THAT:
Re
A above: The 1
st
,
2
nd
,
and 3
rd
respondents, in case number J1343/16, are ordered to pay the
Applicants’ costs (Solidarity, Foeta Krige, Suna Venter,
Krivani Pillay and Jaques Steenkamp) on an attorney and own
client scale including the costs of two counsel, jointly and
severally the one to pay the others to be absolved;
Re
B above: The 1
st
,
2
nd
,
and 3
rd
respondents, in case number J1592/16, are ordered to pay the
Applicants’ costs (BEMAWU, Busisiwe Ntuli, Lukhanyo Calata
and
Thandeka Gqubele-Mbeki), on an attorney and client scale including
the costs of two counsel, jointly and severally the one
to pay the
others to be absolved;
Re
C, D and E above: the First respondent is ordered to pay the
Applicants’ costs on the usual scale.
Re
F above: The 1
st
,
2
nd
,
and 3
rd
respondents in the consolidated matter in case number J1343/16
(Solidarity, Foeta Krige, Suna Venter, Krivani Pillay and Jaques
Steenkamp) and case number J1592/16 (BEMAWU, Busisiwe Ntuli,
Lukhanyo Calata and Thandeka Gqubele-Mbeki) are ordered to pay the
Applicants’ costs on an attorney and client scale including
the costs of two counsel, jointly and severally the one to
pay the
others to be absolved
BY
THE COURT
REGISTRAR
[1]
Judgment J1343 /16 paras 79.5 and 79.6.
[2]
Judgment J1343 /16
at para 76
[3]
Act 66 of 1995 as amended.