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[2018] ZALCJHB 316
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National Employers' Association of South Africa (NEASA) and Others v Minister of Labour and Others (JR75/15) [2018] ZALCJHB 316 (3 October 2018)
Of
interest to other judges
THE
LABOUR COURT OF SOUTH AFRICA,
HELD
AT JOHANNESBURG
JUDGMENT
Case
No: JR 75/15
In
the matter between:
NATIONAL
EMPLOYERS’ ASSOCIATION
OF
SOUTH AFRICA (‘NEASA’)
First
Applicant
PLASTIC
CONVERTORS ASSOCIATION
OF
SOUTH AFRICA (‘PCASA’)
Second
Applicant
BORDER
INDUSTRIAL EMPLOYERS’
ASSOCIATION
(‘BIEA’)
Third
Applicant
H
G MOLENAAR & CO (PTY) LTD
Fourth
Applicant
ADMIN
CRANE MAINTENANCE CC
Fifth
Applicant
PETER
BRESLER & ASSOCIATES t/a
MAGNADOR
Sixth
Applicant
HEINZ
FISCHER ENGINEERING (PTY)
LTD
t/a FISCHER PROFILE SA
Seventh
Applicant
and
MINISTER
OF LABOUR
First
Respondent
METAL
AND ENGINEERING
INDUSTRIES
BARGAINING COUNCIL
(‘MEIBC’)
Second
Respondent
PARTIES
TO THE MEIBC
Third
to Thirty Fifth Respondents (set out in the Notice of
Motion)
Summary:
(Review – items in taxation – cost at tariff of
reproducing record for all respondents a reasonably necessary expense
– no obligation to enquire of respondents if they need record
before record is filed – alleged practice in direct appeals
not
relevant – Misdirection by taxing master in attributing
additional hours for preparation to time during which counsel
was
preparing replying affidavits)
JUDGMENT
LAGRANGE
J
Introduction and
background
[1]
This is an application to review and set aside certain items in the
decision of the taxing master in this case.
[2]
The application had been brought by various employer organisations
and a few individual employers engaged in the metal and engineering
industry falling within the scope of the Metal and Engineering
Industrial Bargaining Council (‘MEIBC’ or ‘the
Council’) to set aside the decision by the Minister of Labour
(‘the Minister’) to extend a collective agreement
concluded between certain parties to the bargaining Council to
non-parties. They also sought to set aside the Minister’s
renewal of the period of operation of the previous main agreement
until 30 June 2017 under government notice number R1050 (GG 38366
dated 24 December 2014) under section 32 (6) (a)(ii) of the LRA. The
applicants also asked the court to strike down section 32(5)
of the
LRA as unconstitutional, in so far as it might be necessary.
[3]
The applicants raised numerous grounds of review requiring an
extensive canvassing of factual and legal issues. The following
was said in the judgement on the issue of costs.
Costs
The
ongoing and repetitious litigation between the parties over these
issues as evidenced by some of the other cases mentioned above
is
regrettable, and could probably be avoided if past lessons were
learned. In my view, it should not have been necessary for the
applicants to litigate to assert the need for compliance with council
procedures and to exercise their right to make representations
when
agreements are to be extended to non-parties. Accordingly, I believe
they are entitled to their costs. The only party to the
MEIBC which
opposed the application in its own name was the National Union of
Metalworkers’ (‘Numsa’), the thirty-fourth
respondent which accordingly should also bear its share of the
applicants’ costs.
[4]
The following cost order was then made
The
costs of the application are to be paid by the first, second and
thirty-fourth respondents jointly and severally, the one paying
the
other to be absolved, such costs to include the costs of two counsel.
The review
[5]
The applicant wishes to set aside two
aspects of the taxation ruling. The first relates to the costs of the
record served on the
other 32 respondents who were
members of the bargaining council even though none of them opposed
the review application.
The second concerns certain items relating to
senior counsel’s fees.
[6]
The review was brought under Rule 10 of the
labour court rules which provides for reviews in chambers, but which
does not specifically
identify which matters falling within the ambit
of the rule. This omission will in all probability be rectified when
the revised
rules of the court are promulgated. Be that as it may,
even though the respondent in the review application contends that
the review
ought to have been argued in court, it acceded to the
review being conducted in chambers.
Item 200
[7]
The taxation master awarded an amount of
R151, 221.00 for 35 copies of the record served on the respondents.
The amount was calculated
based on the standard tariff of fees of
attorneys applicable at the time, which permitted a fee of R 3.50 per
copied page.
[8]
While accepting that it was necessary for
the applicants to cite all 35 respondents as interested parties,
NUMSA submits that before
serving copies on all the respondents the
applicants should have written to them to inquire if they required
copies thereof in
circumstances where the three respondents had
indicated they intended to oppose the application.
[9]
Secondly,
NUMSA contends that it is wasteful and burdensome for a party to
serve records on interested parties that have no intention
of
entering the fray. In this regard NUMSA notes that rule 7A(6)
[1]
of the Labour Court Rules requiring an applicant in review
proceedings to serve a copy of the record on other parties is similar
in all relevant respects to Labour Court Rule 9 (5A)(d)
[2]
,which
also requires an appeal record to be served on other parties, yet
NUMSA submits it is common practice that copies of the
appeal record
are not served on respondents who are not opposing an appeal. In a
related ground, NUMSA argues that since the vast
majority of the
respondents were employer associations affiliated to the third
respondent, SEIFSA, it was unnecessary to file copies
on them
individually. Lastly, the union contends that the applicants could
have produced the copies of the record more cheaply.
[10]
Dealing first with the last point, I accept
that there might have been cheaper ways of reproducing the record.
However, the tariff
permits an attorney to charge the amount per page
levied by the applicants’ attorneys in this matter. The tariff
does not
specify that this is a maximum charge or that attorneys are
obliged to adopt the most economically efficient method of printing
documents. In so far as that means the tariff permits a less cost
effective methods of making copies that is a problem with the
tariff
and not the exercise of the taxing master’s description, even
though it is doubtless a source of irritation to any
party having to
foot the bill.
[11]
I accept also that if the applicants had
been considerate they might have inquired of respondents whether they
required copies of
the record before filing them. The difficulty is
that a respondent in review proceedings is not obliged to indicate if
they are
opposing the application before they have received the
record and any supplementary affidavit. Even if NUMSA is correct in
contending
that a practice of not filing the record on all parties
exists in direct appeals to the labour court, a point on which I make
no
finding as these are relatively rare, the existence of a practice
in appeal proceedings, does not obligate an applicant in review
proceedings to adopt similar practices. In filing copies of the
review records on the respondents, the applicants were doing what
the
rule required and it cannot be said that the costs incurred were
wasteful or unnecessary.
[12]
Once again, the incurral of the cost is a
consequence of the rules governing review proceedings, which an
applicant must comply
with, in the absence of an indulgence granted
by a respondent party, which the applicant is not obliged to seek.
[13]
In light of the above, I cannot find that
the taxation master acted unreasonably in awarding the costs under
item 200.
Counsels’ fees
[14]
The contested fees in question concern the
taxing master allowing 60 hours of preparation for senior counsel
under items 248 (14/09/15),
287(30/11/15), 322 (03/10/16) and 347
(26/04/17)
of the taxed bill of costs. The
taxing master’s explanation for her ruling on the taxation of
these items is as follows:
In
the items above the applicants had submitted that counsel be given 11
days for preparation of the matter. In their submissions
the
applicants gave a calculation of the documents that had to be read
and perused by counsel. The description was as follows:
(a) Annexures, replying
affidavits and supplementary affidavits amount to a total of 891
pages;
(b) 34
th
respondent’s answering affidavits, second respondent, first
respondents - all amounting to a total of 854 pages
(c) Heads of argument-72
pages’ global amount
(d) The total number of
pages is 1817
This
entails perusal, drafting and settling of affidavits and other
related work.
In
addition, the applicant submitted that the record had a total page
count of 955 which counsel was required to peruse and make
use of for
preparation.
The
taxing master ruled that perusal would be allowed at half tariff.
The
taxing master further ruled that preparation would be allowed at six
days and not 11 days as submitted by the applicants.
The
decision of the taxing master took into consideration (the) amount of
work and time of counsel in preparing for the matter.
Noting that the
matter had run for a period of a year the taxing master saw fit to
grant 6 days’ preparation. The taxing
master found that the
proposed 11 days was excessive.
[15]
NUMSA’s essential contention is that, the taxing master “erred”
in ruling that 6 days preparation should
be allowed for senior
counsel in circumstances where senior counsel only charged
approximately 3.5 days for settling heads of argument
and to prepare
for the hearing. It was rightly accepted by the parties that the
senior counsel’s hourly rate of R 3,300.00
at the time of the
hearing was reasonable. Because NUMSA accepted that six days
preparation for junior counsel was reasonable,
the applicants contend
NUMSA cannot argue that senior counsel’s contribution should
not be calculated on the same basis.
The applicants further submit
that the taxing master was entitled to take a robust approach in
determining a reasonable number
of hours which senior counsel needed
to prepare himself to present the matter.
[16]
The applicants further argue that senior counsel’s actual
charges for 35 hours preparation were for accounts submitted
on 30
September and 31
st
of October 2016 and did not include 90
hours charged for work done in 2015. NUMSA argues that the taxing
master effectively allowed
an additional 25 hours preparation time
for work done in August to November 2015, which should already have
been included in time
spent in the preparation of replying affidavits
at that time. It is not in dispute that taxing master accepted the
applicants’
argument at the taxation that counsel would have
been entitled to charge for 60 hours preparation had they done so and
the fact
that they perused documents in 2015 meant they did not have
to spend as much time in 2016 to prepare. It appears from the papers
that senior counsel’s actual charges for work done in
preparation for the hearing during September and October 2016 were
allocated by him as follows: 20 hours for settling heads prepared by
Junior counsel and 15 hours considering opposing heads and
preparing
for the hearing.
[17]
The nub of the dispute on this issue is whether the taxing master in
the exercise of her discretion unreasonably allowed an
additional 25
hours to be attributed to the task of preparation for the reading and
perusal of the documents in 2015 , as itemised
in her explanation for
the taxation of these items (see paragraph (13) above).
[18]
In paragraph 3.1. of NUMSA’s representations it states:
3.1.1 In her stated case,
the Taxing Master states that preparation would be allowed at 6 days,
and that she “took into consideration
amount of work and time
of counsel in preparing for the matter”.
3.1.2 NUMSA has elected
not to review the 6 days allowed for the Junior counsel, as (Junior
counsel) indeed charged more time than
this.
3.1.3 However, NUMSA
submits that the Taxing Master erred in ruling that 6 days should be
allowed for the Senior Counsel for heads/preparation
in circumstances
where (senior counsel) only charged roughly 3.5 days to settling the
heads of argument and to preparing for the
hearing.
[19]
The applicants argue in response that:
It
appears from paragraph 3.1.3 of NUMSA’s representations that it
takes issue with the
form
of (senior counsel’s)
account. Applicants reiterate that the Hounorable Court is a Court of
substance not form and, as (senior
counsel)
has not yet been
compensated for the general preparation he did during 2015
(by
reading
inter alia
the record and papers filed by the opposing
parties),
nothing precluded the taxing master from taking a robust
approach
in allowing a reasonable and considered number of hours
for (senior counsel) to prepare himself to present the matter of the
half
of the applicants.
(
original
emphasis;
court’s
emphasis)
[20]
At the taxation, the cost consultants agreed amongst themselves what
they considered a reasonable fee for senior counsel’s
drafting
and settling of the affidavits and heads, using a formula adopted by
taxing masters in the Gauteng Local Division of a
fee per statutory
page (250 words). The agreed fee was R 1,100-00 per page. However,
the applicants contend that this fee did not
include perusal of the
opposing affidavits and annexes, perusal of the respondent’s
heads of argument, perusal of the annexures
to the applicants’
affidavits (which he had settled), perusal of the records and
preparation for the hearing.
[21]
The applicants claim that they argued at the taxation that senior
counsel should be allowed a reasonable fee for the work mentioned
and
that the perusal of the documents in question was necessary for two
reasons. Firstly, to put him in a position to draft and
settle the
applicants’ affidavits and heads. Secondly, to put him in a
position to argue the matter in court as a fee for
general
preparation. The applicants submit that the additional time spent by
senior counsel reading the record and affidavits of
the respondents
and consulting with junior counsel between January 2015 and November
2015 amounted to 90 hours. In view of this,
the applicants had urged
the taxing master to adopt a “robust approach” and
consider all the work done by senior counsel
in preparation.
[22]
I agree that if senior counsel had spent more time on actual
preparation for the hearing once pleadings had closed, as his
junior
did, in all probability the applicants would have been entitled to
reimbursement for those fees. However, I have difficulty
in the
taxing master effectively retrospectively attributing ‘preparation’
for the hearing to work done during the
time counsel was settling
replying affidavits. The applicants contend this is simply a
reasonable exercise of a robust discretion
on the part of the taxing
master. In my view, a robust approach cannot reasonably extend to
re-characterising the nature of work
done before pleadings were
closed as part of work done in preparation for the hearing.
[23]
It is perhaps also questionable why any perusal of documents and
answering affidavits would have been implicitly incorporated
in the
time spent in settling the supplementary affidavit and settling the
replying affidavit, which would have necessitated the
perusal of the
documents in question. However, I make no finding in this respect as
it might be possible that when the parties
agreed to determine senior
counsel’s fees for settling the affidavits and heads of
argument on the basis of a fixed rate
per page, the perusal of
answering affidavits and annexures was considered a separate item.
[24]
In any event, what the taxing master did was to attribute additional
hours to preparation, in excess of the time actually billed
for
preparation after close of pleadings, to a period during which
replying affidavits were being settled. In my view, notwithstanding
the extent of the taxing master’s discretion it was a
misdirection on her part to allow 6 day’s preparation fees for
senior counsel instead of the time actually claimed for preparation
done after close of pleadings.
[25]
Accordingly, the taxed off amount for senior counsel’s
preparation for the hearing should have been limited to 3.5 days.
Costs
[26]
As NUMSA is only partially successful, no
cost order is appropriate in my view.
Order
[27]
The taxation master’s taxation of the
bill of costs is reviewed and set aside only to the extent that in
relation to items
248, 287, 322 and 347 the taxation master’s
ruling that six days’ preparation fees should be allowed for
senior counsel
is reviewed and set aside and substituted with a
ruling that 3.5 days’ preparation fees should be allowed for
senior counsel
under those items.
[28]
No order is made as to costs.
____________________
Lagrange
J
Judge
of the Labour Court of South Africa
(In
Chambers)
3
October 2018
APPEARANCES:
APPLICANTS: AJ Freund SC
assisted by G Leslie instructed by Anton Bakker Inc.
FIRST RESPONDENT: H
Maenetje SC assisted by JM Ramaepadi instructed by the State Attorney
SECOND RESPONDENT: N A
Cassim SC assisted by V September instructed by Patelia Cachalia
Attorneys
THIRTY-FIFTH RESPONDENT:
J G Van der Riet SC assisted by C Orr instructed by Haffegee Roskam
Savage Attorneys
[1]
Rule 7A(6) states:
The
applicant must furnish the registrar and each of the other parties
with a copy of the record or portion of the record, as
the case may
be, and a copy of the reasons filed by the person or body.
[2]
The relevant provision, which is only applicable to direct appeals
to the Labour Court permitted by the LRA, states:
(5A(d)
The appellant must furnish the registrar and each of the other
parties with a copy of the record or portion of the record,
as the
case may be, and a copy of the reasons filed by the person or body.