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[2017] ZALCJHB 399
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Loate v Head of Department: Free State Provincial Government: Department of Sports, Arts, Culture and Recreation and Another (J1130/17) [2017] ZALCJHB 399 (2 November 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
no: J 1130/17
In
the matter between:
T
LOATE
Applicant
and
HEAD
OF DEPARTMENT: FREE STATE
PROVINCIAL
GOVERNMENT:
DEPARTMENT
OF SPORTS, ARTS, CULTURE &
RECREATION
First Respondent
THE
MEC: FREE STATE PROVINCIAL GOVERNMENT:
DEPARTMENT
OF SPORTS, ARTS, CULTURE
&
RECREATION
Second Respondent
Heard
:
20 June 2017
Delivered
:
2 November 2017
JUDGMENT
RABKIN-NAICKER,
J:
[1]
This matter was originally set down on the urgent
roll on 30 May 2017. The applicant sought a declaration that his
suspension was
unlawful and unconstitutional, and an order for the
immediate lifting of it. An order by agreement removing the matter
from the
roll on that day with costs to be costs in the application,
was made by Saloojee AJ. Three days later, the suspension of the
Applicant
was lifted. However, there was no tender for costs from the
respondent.
[2]
On the same day that the suspension of the
applicant was lifted, 2June 2017, the State Attorney wrote to
the applicant’s
attorney of record as follows:
“
Your client’s suspension
has been uplifted.
The only issue outstanding with regard
to your application is that of costs. We believe (my client and I)
that we are entitled to
costs for the reasons set out in my letter of
the 18
th
May 2017.
These are:
1. Urgency with regard to the intended
previous hearing;
2. Lack of jurisdiction;
3. The 60 day question.
I do not intend to repeat what has
been stated in previous correspondence to you.
Notwithstanding this my client is
prepared to settle the issue by calling it quits, each party bearing
its own costs. It is not
worth going to Johannesburg, incurring costs
thereof and another hearing.
As costs are the only issue
outstanding, urgency falls away and costs can be argued in the normal
course of events.
I have not had the experience where
the courts have allowed costs to be argued on the urgent basis.
If you are not prepared to settle this
matter on the basis of each party bearing their own costs, then my
instructions are to proceed
to ask for costs against your client
incurred up to date and any future costs.”
[3]
The applicant did not agree to the proposal that
each party should pay its own costs. The respondents then proceeded
to file opposing
papers and an application for condonation, and the
applicant then filed his replying affidavit. Heads of argument were
also filed
by the respondents. The matter remained on the urgent roll
and was before me on 20 June 2017.
[4]
A notice of opposition to the application had
been filed by the respondents on 17 May 2017. It would have thus been
possible for
them to simply argue costs on the applicant’s
papers. The further costs incurred by the State in this matter are in
my view
entirely within the respondents own making.
[5]
I have no intention of interrogating the merits
of the suspension of the applicant in this judgment. Suffice to say
that the respondents
lifted the precautionary suspension three days
after the application was first enrolled at court, and the
applicant’s papers
duly considered. In these circumstances, and
given the unnecessary costs incurred by the respondents, I exercise
my discretion
on the issue of costs and make the following order:
Order:
1.
The respondents are to pay the costs of the
application.
__________________
H.
Rabkin-Naicker
Judge
of the Labour Court of South Africa
APPEARANCES:
For
the Applicant:
S. Grobler
Instructed
by :
Blair Attorneys
For
the Respondents:
T. Molokomme
Instructed
by:
The State Attorney, Bloemfontein