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[2018] ZALCJHB 295
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Labe v Legal Aid South Africa and Others (JS895/16) [2018] ZALCJHB 295 (20 September 2018)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case
no: JS 895/16
In the matter between:
TILLY
LABE
Applicant
and
LEGAL
AID SOUTH
AFRICA
First
Respondent
BRAIN
NAIR
Second
Respondent
PARTICK
HUNDERMARK
Third
Respondent
FLAVIA
ISOLA
Fourth
Respondent
AYSHA
ISMAIL
Fifth
Respondent
THE CURRECT BOARD
MEMBERS OF THE LEGAL
AID SOUTH
AFRICA
Sixth
Respondent
THE CHIEF TAXING
MASTER, LABOUR COURT
Seventh
Respondent
THE TAXING MASTER,
NOKWANDA MOLEFE
Eighth
Respondent
Decided: In Chambers
Delivered: 20
September 2018
JUDGMENT-APPLICATION
FOR LEAVE TO APPEAL
PRINSLOO. J
Introduction
[1]
This
matter came before me on 15 June 2018 and I made an order in the
following terms:
‘
1. The
Condonation is granted for the late filing of the Applicant’s
review application;
2. The taxed bill of cost under case
number JS 895/16 is reviewed and set aside;
3. There is no order as to costs.’
[2]
Subsequent
thereto, the Applicant requested reasons for the order above which
reasons were furnished on 1 August 2018. The Applicant
seeks leave to
appeal against the order of no costs.
Brief background facts
[3]
This
matter has an unfortunate history: The applicant, an admitted
attorney was employed by the First Respondent (Legal Aid South
Africa
who will be referred to as the ‘respondent’ in this
judgment) as a civil professional assistant until her dismissal
on 6
May 2016 following a finding of guilt resulting from various
allegations of misconduct.
[4]
Aggrieved
by the dismissal, the Applicant referred an unfair dismissal dispute
to the Commission for Conciliation, Mediation and
Arbitration (CCMA).
Both parties agreed to have the matter referred to the Labour Court.
On 25 August 2016, the CCMA issued a ruling
in terms of which it
found that it had no jurisdiction to arbitrate on the applicant’s
dispute which relates to
inter
alia
,
victimization, intimidation, harassment and unfair discrimination.
[5]
The
Applicant approached the Labour Court and the matter served before
other Judges of this Court before the matter finally came
before me.
On 20 June 2018, Tlhotlhalemaje, J handed down judgment in terms of
which he
inter
alia,
upheld the First Respondent’s preliminary points in respect of
the citation of the Second to Sixth Respondents and thereby
declared
that these Respondents were not party to the proceedings. He further
held that costs associated with the preliminary points
and special
plea be costs in the cause. Finally, he directed the parties to
approach the Registrar of this Court to set the matter
down for
trial.
[6]
It
is evident that the matter was to proceed to trial. However, and
instead the Applicant filed an application for leave to appeal
against the judgment of Tlhotlhalemaje, J on 10 July 2017. On 02
August 2017, Tlhotlhalemaje, J dismissed the Applicant’s
application for leave to appeal with costs.
[7]
Subsequent
thereto, the Applicant petitioned the Labour Appeal Court (LAC) which
petition was granted and the Applicant filed an
appeal which is still
to be decided by the LAC. In the meanwhile, the First Respondent
proceeded to set down the bill of costs
for taxation. A series
of correspondence surrounding the events leading up to and following
the taxation of the bill of costs
ensued between the Applicant and
various personnel of this Court and I do not intent venturing into
these, suffice to mention that
the bill of costs was taxed on 05
March 2018.
[8]
The
Applicant took serious issue with the taxing of the bill and having
engaged the office of the Registrar, the manager of this
Court and
the taxing master, she filled the application to review and set aside
the taxed bill of costs which application served
before me.
[9]
As
already pointed out, I reviewed and set aside the taxed bill of costs
and made no order as to costs. This is the gravamen of
the
Applicant’s complaint. In a nutshell, the Applicant takes issue
with the fact that I did not award her costs against
the Respondents
as she views the conduct of taxing the bill as irregular, unlawful
and deserving of a sanction of an order of costs
on a punitive scale.
[10]
I
turn to deal with the grounds for leave to appeal as submitted by the
Applicant
infra
.
Grounds for leave to
appeal
[11]
The
grounds which the Applicant seeks leave to appeal are briefly
summarised as follows:
11.1 The Court erred and
or misdirected itself by refusing to award her costs incurred by
referring the taxed bill on review.
11.2 The Court erred and
or misdirected itself by failing to sanction the Respondents with a
costs order and failed to consider
the fact that the Respondents hold
highly respectable positions that required them to be competent when
discharging their duties
and disregarded and neglected an important
call from the Applicant to refrain from violating the provisions of
Section 18 of the
Superior Court Act prior to taxation.
[12]
Finally,
the Applicant contends that the Court committed an improper exercise
of judicial discretion and that the LAC must interfere
with this
improper conduct.
Test to be applied in
exercising a discretion
[13]
In
terms of Section 162 of the Labour Relations Act
[1]
(LRA),
this Court has a wide discretion to make an order of costs in
accordance with the requirements of law and fairness. As early
as
1948, our courts have endorsed the principle that the awarding of
costs fall within the discretion of the court ceased with
the matter.
In
Merber v
Merber
[2]
the
Appellate Division quoted with approval, the earliest decision which
pronounced on the traditional test that when a discretion
in the
awarding of costs has been exercised, the Court on appeal will not
readily interfere with the exercise of that discretion.
Greenberg,
JA. held that:
‘
In
Fripp
v Gibbon and Company
1913
AD 354)
,
Lord DE VILLIERS CJ, said (at p 357):
‘
In
appeals upon questions of costs two general principles should be
observed. The first is that the Court of first instance has
a
judicial discretion as to costs, and the second is that the
successful party should, as a general rule, have his costs. The
discretion of such Court, therefore, is not unlimited, and there are
numerous cases in which courts of appeal have set aside judgments
as
to costs where such judgments have contravened the general principle
that to the successful party should be awarded his costs.’
[14]
Furthermore, in
Trustees
for the time being of The Biowatch Trust v Registrar Genetic
Resources and Others
[3]
the
Court held
:
‘
It
seems therefore that when a successful party has been deprived of his
costs in the trial court, an appeal court will enquire
whether there
were any grounds for this departure from the general rule and if
there are no such grounds then ordinarily it will
interfere.’
[15] In the labour law landscape the
issue of costs is provided for in the LRA and if the awarding of
costs was an automatic right
that a successful party was entitled to,
the legislature would not have given this Court discretionary powers
and would not have
introduced the concept of ‘fairness’
as an element to be considered in awarding costs.
[16] The Applicant’s argument
that she was forced to bring the review application does not hold.
The Applicant was successful
with her review application however; the
Court was also alive to the case of the Respondent namely that the
taxed bill of costs
would not be executed until the final
determination of the appeal by the LAC. The Respondent could still
set down the bill of costs
for taxation and execute it if the appeal
fails and on the other hand, should the Applicant succeed in the
appeal, she has no reason
to be concerned about the bill of costs as
it had been set aside by this Court. In my view, the requirements of
law and fairness
were best served and the respective positions of the
parties were fairly balanced by making no order as to costs.
[17] In
Kent v
Bevern
and Co
[4]
the
Court had this to say:
‘
The
appellant argued that a judge has no jurisdiction to condemn a
successful litigant in costs; that it was not a matter on which
he
could exercise discretion. The general rule of our law is that the
unsuccessful litigant must bear the costs of litigation;
but it gives
a judge a wide discretion in deciding on the question of costs. It is
left to the arbitrament of the judge as seems
to him equitable and
just. He may condemn the unsuccessful party to pay the costs, or he
may decide that each party shall bear
his own costs, and he may even
condemn the successful party in the costs, though the last very
seldom happens. .’
[18]
Most importantly, this Court is bound by the recent decision of the
Constitutional Court in
Zungu
v Premier of the Province of Kwazulu Natal
and
Others
[5]
,
where it was held that the rule of practice that costs follow the
result does not apply in labour matters. The Court reiterated
the
statutory provision that costs should be awarded in accordance with
the requirements of law and fairness and these were the
principles I
applied
in
casu.
The test for leave to
appeal
[19]
It is trite that an applicant in an application for leave to appeal
must convince the court
a
quo
that it has reasonable prospects of success on appeal. What the test
requires is the reasonable likelihood that another court,
presented
with the same facts and evidence as this Court, could come to a
different conclusion than the one arrived at by this
Court.
[20]
In
Seatlholo
and Others v Chemical Energy Paper Printing Wood and Allied Workers
Union and Others
[6]
this Court confirmed that the test applicable in applications for
leave to appeal is stringent and held as follows:
‘
The
traditional formulation of the test that is applicable in an
application such as the present requires the court to determine
whether there is a reasonable prospect that another court may come to
a different conclusion to that reached in the judgment that
is sought
to be taken on appeal. As the respondents observe, the use of the
word “would” in s17(1)(a)(i) are indicative
of a raising
of the threshold since previously, all that was required for the
applicant to demonstrate was that there was a reasonable
prospect
that another court
might
come to a different conclusion (see
Daantjie
Community and others v Crocodile Valley Citrus Company (Pty) Ltd and
another
(75/2008)
[2015] ZALCC 7
(28 July 2015). Further, this is not a test to
be applied lightly – the Labour Appeal Court has recently had
occasion
to observe that this court ought to be cautious when leave
to appeal is granted, as should the Labour Appeal Court when
petitions
are granted. The statutory imperative of the expeditious
resolution of labour disputes necessarily requires that appeals be
limited
to those matters in which there is a reasonable prospect that
the factual matrix could receive a different treatment or where there
is some legitimate dispute on the law...’
[21]
In
casu
,
the Applicant has not demonstrated that the Courts’ decision
was arbitrary, capricious or irregular. The above authorities
show
that in the exercise of a discretion, a number of factors can be
taken into consideration.
[22]
In
casu,
applying
the principles applicable to applications for leave to appeal, I am
not persuaded that there are reasonable prospects that
the LAC would
arrive at a different conclusion than the one arrived at by this
Court.
The
Applicant failed to make out a case for leave to appeal to be
granted.
[23]
In
the result, I make the following order:
Order
1.
The
application for leave to appeal is dismissed;
2.
There
is no order as to costs.
_____________________
Connie Prinsloo
Judge of the Labour Court
of South Africa
[1]
Act
66 of 1995 as amended.
[2]
(
1948
(1) S.A.L.R. 446
at 452). At p. 453.
[3]
(A831/2005)
[2007] ZAGPHC 270 (6 November 2007).
[4]
(1907,
T.S. 395).
[5]
(2018)
39 ILJ 523 (CC); [2018] 4 BLLR 323 (CC); 2018 (6) BCLR 686 (CC).
[6]
(2016)
37 ILJ 1485 (LC).