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[2018] ZALCJHB 269
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Gqweta v Mogale NO and Another; In Re: National Health Laboratory Services (J1665/16) [2018] ZALCJHB 269 (28 August 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case
no: J1665/16
In
the matter between:
LUNGISA
GQWETA
Applicant
and
MS
JOYCE MOGALE
N.O
First
Respondent
MR
ABIE PHOOKO
N.O
Second
Respondent
In
re:
NATIONAL
HEALTH LABORATORY
SERVICES
Applicant
and
LUNGISA
GQWETA
Respondent
Heard:
7 September 2017
Delivered:
28 August 2018
JUDGMENT
MAHOSI.J
Introduction
[1]
This is an opposed application
in
terms of which the second respondent seeks an order of costs
occasioned by the applicant’s withdrawal of a contempt
application.
[2] Prior to outlining
the second respondent’s claim in detail and considering the
issues that gave rise thereto, it is necessary
to summarise the facts
that form relevant background to the dispute between the parties.
Parties
[3]
The applicant is employed by the National Health Laboratory Services
(employer) as a Regional Finance Manager.
[4]
The first respondent is the Chief Executive Officer (CEO) of the
National Health Laboratory Services.
[5]
The second respondent is a practising attorney and was appointed by
the employer to preside over the disciplinary proceedings
that were
instituted against the applicant.
Material background
facts
[6] On 14 March 2016, the
applicant was suspended by the employer pending an investigation into
various allegations of misconduct.
The applicant was given a notice
to attend a formal disciplinary hearing on 25 May 2016. On 24 May
2016, the afternoon prior to
the commencement of the disciplinary
hearing, the applicant requested a postponement of the disciplinary
hearing in order for his
legal representative to prepare. The
employer granted the postponement and the disciplinary hearing was
re-scheduled by agreement
to 6 June 2016.
[7] On 27 May 2016, the
applicant referred an unfair labour practice dispute to the
Commission for Conciliation, Mediation and Arbitration
(CCMA), on the
basis that he was being subjected to an occupational detriment. The
con/arb process was set down for 20 June 2016.
On 31 May 2016, the
applicant requested that the disciplinary hearing scheduled for 6
June 2016 be stayed, pending the outcome
of the CCMA dispute. The
request was rejected as the employer was of the view that there was
no
nexus
between the applicant’s CCMA dispute and the
disciplinary hearing.
[8] On 2 June 2016, the
applicant brought an urgent application before this Court under case
number J 1096/16 to interdict the disciplinary
hearing pending the
outcome of the dispute before the CCMA.
[9] On 6 June 2016, this
Court granted an order interdicting the employer and the second
respondent from proceeding with the disciplinary
proceedings against
the applicant.
[10] On 1 August 2016,
the applicant launched an
ex parte
application to hold the
first and second respondents in contempt of the abovementioned court
order.
[11] On 12 August 2016,
this Court granted an interim order in terms of which the first and
second respondents were required to
appear before it on 4 November
2016, to show cause why they should not be found guilty of contempt
of court for failing to comply
with the court order dated 6 June
2016.
[12] The first and second
respondents filed affidavits in opposition to the application giving
rise to the interim order. Consequently,
the employer gave an
undertaking that it would not proceed with the disciplinary
proceedings. As a result, it became unnecessary
for the applicant to
proceed with the contempt application. On 3 November 2016, the
applicant’s attorneys and the first respondent’s
attorneys in the absence of and having not discussed the matter with
the second respondent reached an agreement to withdraw the
application.
[13] A draft order in
terms of which the parties agreed to have the contempt application
withdrawn was emailed to the second respondent.
Upon receipt thereof,
the second respondent declined to be a party thereto on the basis
that he was not approached and consulted.
As a result, the second
respondent decided that he would proceed to oppose the contempt
application and pray for costs.
[14] On 4 November 2016,
the application for contempt of court was withdrawn, but the second
respondent insisted that the applicant
should tender costs. However,
the applicant refused to tender costs. Consequently, the application
for contempt of court against
the first respondent was removed from
the roll. The second respondent proceeded to argue for costs against
the applicant.
[15] The basis upon which
the second respondent is seeking an order for the payment of costs
against the applicant is outlined in
his heads of arguments as
follows:
‘
7.
Prior to the interim order of 12 August 2016, the second respondent
was involved in an arbitration which was scheduled to reconvene
on 4
November 2016. The arbitration had commenced on 11 January 2016.
Resulting from the interim order, second respondent sought
from the
CCMA Durban from the applicant attorneys in the arbitration, a
postponement of the arbitration in order to attend the
Honourable
court on 4 November 2016.
8. The applicant
attorneys in the arbitration indicated that they will be seeking
costs against the second respondent for the delay
in the finalisation
of the arbitration. The arbitration has already prior to 4 November
2016 been postponed on three occasions.
The CCMA has also indicated
its unhappiness in the delay in finalising the arbitration and has
reserves an argument on the costs.
9. The
postponement of the arbitration, and the potential costs order
against the second respondent, could easily have been avoided
had the
applicant communicated its intention to withdraw his contempt
application timeously. The second respondent could have requested
the
CCMA Durban to re-enrol the arbitration on 4 November 2014.’
[16] In his application
for contempt of court, the applicant only sought a costs order
against the second respondent in the event
that he opposes the
application. In his answering affidavit to the application for
contempt of court, the second respondent submitted
that the
applicant’s application was incompetent, frivolous and deserved
a dismissal with costs. The applicant submitted
that to an extent
that the second respondent insisted on proceeding with the contempt
application, he is also asking this Court
to grant costs against him.
Applicable law and
analysis
[17]
Section 162 of the Labour Relations Act
[1]
(LRA) provides for the manner in which this Court may award orders
for costs and it states as follows:
‘
(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.’
[18]
The Constitutional Court (CC) has recently reiterated in
Zungu
v Premier of the Province of Kwa-Zulu Natal and Others (Zungu)
[2]
that the rule of practice that costs follow the result does not apply
in Labour Court matters and further that costs orders should
be made
in accordance with the requirements of law and fairness. In
Zungu
,
the CC referred to
Member
of the Executive Council for Finance, KwaZulu-Natal v Wentworth
Dorkin N.O.
[3]
where
it was stated as follows:
‘
The
rule of practice that costs follow the result does not govern the
making of orders of costs in this Court. The relevant statutory
provision is to the effect that orders of costs in this Court are to
be made in accordance with the requirements of the law and
fairness.
And the norm ought to be that costs orders are not made unless the
requirements are met. In making decisions on costs
orders this Court
should seek to strike a fair balance between on the one hand, not
unduly discouraging workers, employers, unions
and employers’
organisations from approaching the Labour Court and this Court to
have their disputes dealt with, and, on
the other, allowing those
parties to bring to the Labour Court and this Court frivolous cases
that should not be brought to Court.’
[19] In the current
matter, the legal proceedings were settled, disposing of the merits
except in so far as the costs are concerned.
The question is whether
the applicant’s contempt application was incompetent, frivolous
and deserved a dismissal with costs.
[20] It is common cause
that despite the court order granted on 6 June 2016, the employer
proceeded to reschedule the applicant’s
disciplinary hearing to
be heard on 15 July 2016 on the basis that the court order had
lapsed. The applicant submitted that it
would not have been possible
for the employer to schedule a disciplinary hearing without the
second respondent’s knowledge
and consent. As a result, the
applicant argued that the scheduling of the disciplinary hearing was
done in concert with the second
respondent. This is a reasonable
proposition.
[21] The disciplinary
hearing was only postponed on 14 July 2016 to afford the applicant an
opportunity to consider the employer’s
response to his
statement of claim. In her answering affidavit to the contempt
application, the first respondent made it clear
that the disciplinary
hearing should be rescheduled after the CCMA’s jurisdictional
ruling on the protected disclosure dispute
as the agreement was to
postpone it pending the outcome of the CCMA. This is what prompted
the applicant to launch a contempt of
court application. At no stage
did the first and second respondents make it clear that they will
abide by the court order of 6
June 2016. It can, therefore, not be
said that the applicant’s application was frivolous and
vexatious. The applicant was
indeed justified in launching the
application for contempt of court.
[22] As aforesaid, the
agreement to withdraw the application for contempt was entered into
by the applicant and the first respondent
on 4 November 2016. Despite
the said agreement, the second respondent persisted in arguing a
costs order against the applicant.
It is apparent that the second
respondent’s reason to seek a costs order against the applicant
has to do with an arbitration
hearing at CCMA Durban which had to be
postponed and further that there was a potential costs order
occasioned by the said postponement
against him.
[23] In this regard, the
second respondent contended that the postponement of his Durban
arbitration and the potential costs order
against him could have been
avoided had the applicant communicated his intention to withdraw his
contempt application timeously.
I find this submission disingenuous.
The employer only gave an undertaking not to proceed with the
disciplinary hearing on 4 November
2016 and on the same day, the
applicant agreed to withdraw the contempt application. The applicant
could, therefore, not have been
in a position to communicate his
intention to withdraw the contempt application prior to 4 November
2016. The second respondent’s
persistence with this application
was unreasonable and in fact it amounted to a vexatious and frivolous
action. Moreover, his contended
basis upon which this Court should
grant a cost order against the applicant is clearly irrelevant to the
issues to be determined
in the current matter. As such, the second
respondent ought not to have persisted with this application.
[24] In the premise,
the
requirements of law and equity
prompt me to exercise my
discretion in favour of the applicant and to order the second
respondent to pay the applicant’s
costs.
[25] In the
circumstances, I make the following order:
Order
1. The
second respondent is to pay the applicant’s costs
on
the party and party scale.
______________________
D Mahosi
Judge of the Labour Court
Appearances
:
For the
applicant:
MM Bill of Motsoeneng Bill attorneys
For the
respondent
Advocate MJ Van As
Instructed by
Webber Wentzel Attorneys
[1]
66 of 1995, as amended.
[2]
(2018)
39 ILJ 523 (CC).
[3]
[2007]
ZALAC 41
at para 19.