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[2018] ZALCJHB 336
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Sepheka v Du Point Pioneer (J267/18) [2018] ZALCJHB 336; (2019) 40 ILJ 613 (LC) (9 October 2018)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable
case
no: J 267 / 18
In
the matter between:
DAVID THABO
SEPHEKA
Applicant
and
DU POINT PIONEER (PTY)
LTD
Respondent
Considered: In Chambers
Delivered: 9 October 2018
Summary:
Leave to appeal – no proper grounds made out –
application for leave to appeal dismissed
Bias
– bias of judicial officer alleged – principles
considered – no bias proven
Costs
– leave to appeal and submissions vexatious and frivolous –
unfounded allegations of bias – costs
de bonis propriis
awarded
Costs
– punitive costs – principles considered – punitive
costs appropriate
JUDGMENT – LEAVE TO APPEAL
SNYMAN, AJ
Introduction
[1]
This
matter came before me on 16 August 2018, an in an
ex
tempore
judgment handed down the same date, I dismissed the applicant’s
application with costs, and directed that the applicant’s
attorney shall not be entitled to charge the applicant any fees
and/or disbursements relating to the application.
[2]
The
applicant had brought an application for an order to the effect that
the respondent be compelled to allow the applicant to choose
his own
legal representative to represent him in retrenchment consultations
in terms of section 189 of the Labour Relations Act
(‘LRA’)
[1]
being conducted at the respondent and which involved the applicant.
The application was opposed by the respondent.
[3]
On 29
August 2018, the applicant filed an application for leave to appeal,
followed by written submissions as contemplated by Rule
30(3A) of the
Labour Court Rules and clause 15.2 of the Practice Manual. The
respondent opposed the application and filed its own
written
submissions. Despite not being provided for in the Rules of this
Court or the Practice Manual, the applicant filed replying
submissions.
[4]
Clause
15.2 of the Practice Manual further provides that an application for
leave to appeal will be determined by a Judge in chambers,
unless the
Judge directs otherwise. I see no reason to direct otherwise and will
therefore determine the applicant’s leave
to appeal application
in chambers.
Defective
application
[5]
Considering
that judgment was given
ex
tempore
,
the duty was on the applicant to attend to have the
ex
tempore
judgment transcribed, and then present it to me to be edited and
approved, as part of considering the application for leave to
appeal.
The applicant has failed to do so, and has provided no explanation
for this failure. I will therefore decide the leave
to appeal based
on detailed notes I had made of my judgment.
[6]
Next,
and in terms of clause 15.2 of the Practice Manual, the applicant in
a leave to appeal application must file written submissions
in
support of the application for leave to appeal within ten days of
filing the application for leave to appeal. The applicant
filed his
application for leave to appeal on 29 August 2018. This meant that
the written submissions were due to be filed by 12
September 2018.
The submissions were only filed on 17 September 2018, and were thus 5
(five) days out of time.
[7]
The
applicant is obliged to comply with the provisions of the Practice
Manual, which is not just some or other guideline which parties
can
adhere to at their leisure. As said in
National
Education Health and Allied Workers Union on behalf of Leduka v
National Research Foundation
[2]
:
‘
The
Practice Manual is binding on litigating parties and must be complied
with. It is not just a guideline, but an actual prescript.
…
’
[8]
Therefore,
in the case of a failure to comply with the Practice Manual, a
litigating party is obliged to show good cause as to why
the Court
should nonetheless still entertain the matter, which must also be
done by way of a proper condonation application.
[3]
The applicant has not applied for condonation, and has not sought to
offer any explanation for not complying with the Practice
Manual. For
this reason alone, the application for leave to appeal should fail.
[9]
However,
this is a case where there is a bigger picture at stake. The
applicant’s approach to this application for leave to
appeal
was similar to the approach adopted when the original application was
argued before me. It is an ill-advised approach, is
entirely
unacceptable and is part of the reason why I had decided to make the
costs award that I did. However, yet again in this
application for
leave to appeal, despite the applicant being assisted by the same
counsel, Advocate Mthenjwa, the disregard for
the Rules of this Court
and what would be irresponsible litigation persists. What has
happened in this matter necessitates that
a number of issues be dealt
with in a comprehensive written judgment, which I will now do.
The
merits of the application
[10]
From
the outset, I state that I am convinced that the content of the
applicant’s application for leave to appeal and its
accompanying written submissions have little to do with instructions
emanating from the applicant himself. These pleadings are clearly
the
design of the legal representatives of the applicant who seem to be
driving their own agenda. The application for leave to
appeal and
submissions have clearly been drawn up by the same counsel I referred
to above, Advocate Mthenjwa, however, this time
he appears to be also
assisted by an Advocate Kwape. This being the case, it is inexcusable
and actually irresponsible for the
application for leave to appeal
and written submissions to contain what it does. This in fact shows a
complete disrespect for this
Court. As said in
De
Lacy and Another v South African Post Office
[4]
:
‘…
An
officer of the court may not without more convey to a court
allegations or claims by a client when there is reason to believe
that the allegations are untruthful or without a factual basis. This
duty is heightened in circumstances where imputations of dishonesty
and bias are directed at a judicial officer who ordinarily enjoys a
presumption of impartiality. It behoves the legal representative
concerned to examine carefully the complaints of judicial bias and
dishonesty and the facts, if any, upon which the accusations
rest.
’
[11]
In
the application for leave to appeal, it is stated that I was ‘biased
and reckless’ in ignoring that the delay occasioned
by the
respondent in initiating the ‘promised retrenchment’ was
unfair. It is irresponsible and simply unprofessional
for a party to
record, in a pleading, that a judge of this Court is biased and
reckless when there is no factual foundation for
doing so. Further in
the leave to appeal application it is said that I launched a
‘personal attack’ on the applicant’s
lawyers by
denying them a fee and that this determination was unwarranted,
extremely vicious and
ultra
vires
.
Yet again, these contentions are entirely baseless and egregious.
[12]
In
Moila
v University of the North and Others
[5]
the Court specifically considered allegations by an appellant in the
notice of appeal that the Labour Court Judge (Revelas J) ‘grossly
misdirected’ herself, and had made suggestions that the
respondent’s attorneys were engaged in ploys to undermine the
Labour Court's order as well as making false factual allegations in
the papers.
[6]
In that matter, Revelas J had made a punitive costs order against the
appellant. Considering what was contained in the notice of
appeal,
and all that had gone before in the Court
a
quo
where it came to the issue of the punitive costs award, the LAC said
the following:
[7]
‘
The
tragic part of this matter is that the appellant has not learned from
the strictures of the court a quo insofar as his conduct
is
concerned. Far from heeding the warnings issued by Revelas J and
moderating his language the appellant has increased and sharpened
his
vituperation in his notice of appeal and heads of argument. In fact
there is a stronger case for attorney and client costs
on appeal than
in the court a quo.
’
Similar
considerations apply
in
casu
.
[13]
The
situation is further exacerbated by the written submissions in
support of the application for leave to appeal. In this document,
it
is said the decision I took was ‘baseless and immoral’.
It is also submitted that the applicant has ‘taken
the liberty’
of looking into my past, it ‘emerged’ that Bowman
Gilfillan and my firm, Snyman attorneys, are ‘colleagues’
in SASLAW, and thus I personally knew lawyers from Bowmans and met
with them in such circles. It is contended that because of this,
I
was biased and should not have heard the matter. This reasoning
is not only ridiculous, but offensive. Most legal representatives
that dedicate their practice to employment law are members of SASLAW
and interact with one another in the activities of such organization,
in seminars and the like. SASLAW is a highly reputable organization
ascribing to the highest ethical standards, and in fact nominates
the
names of
pro
bono
acting judges that do duty in the Labour Court recesses. Interaction
between legal representatives in the context of such an organization
is in fact to the benefit of the profession, and not against it. For
the applicant to suggest, without any foundation for it, that
attorneys that participate in the
bona
fide
activities of such an organization in some way conspire to advantage
one another is nothing short of being scandalous. In
Moila
,
[8]
the Court referred with approval to the following
dicta
from the judgment in
Protea
Assurance Co Ltd v Januszkiewicz
[9]
:
‘
It
is wholly unjustified by anything stated or done by Mr Jordaan. If
attorneys, as officers of the Court, behave in such a fashion
towards
each other such conduct can only reflect upon the dignity of the
whole legal profession. Furthermore, such conduct brings
not only the
profession into contempt but indeed the whole system of justice and
the Courts. …
…
The
gravamen of the matter is not the protection or upholding of the
dignity of the individual but of the office he holds, so that
judicial officers, officials associated with the functions of the
courts and legal practitioners shall not be deterred from doing
their
duty, nor the courts be influenced extraneously in coming to their
decision; and so that the public shall not lose confidence
in the
courts. The law's concern is for the interest of the public.
’
[14]
There
seems to be a complete, if not deliberate, lack of appreciation on
the part of the applicant of the ethical standards, integrity
and
dignity that is integral to the profession of an attorney or an
advocate, no matter what task is being fulfilled, including
that of
acting as a judge of this Court. This was appreciated in
Ngobeni
v Passenger Rail Agency of SA Corporate Real Estate Solutions and
Others
[10]
as evident from the following
dictum
where the Court dealt with a similar kind of attack on a senior and
respected advocate at the Johannesburg Bar:
‘…
Further,
the
application represents
an
unwarranted if not scurrilous attack on the integrity of a senior
member of the Johannesburg bar. Clearly, the applicant has
no
understanding of the concept of independence that is fundamental to
the practice of any member of the bar. Adv Cassim drew to
the
applicant's attention the issues of dignity, integrity and self-worth
that were necessarily raised by his
application
for recusal and explained the safeguards in the form both of
conscience and the role of the ultimate arbiter, being
a commissioner
or arbitrator appointed to determine the fairness of any disciplinary
action taken against the applicant. The applicant
failed to heed
these wise words; indeed, he persisted with this application in the
face
of
them. In my view, the applicant's conduct warrants an order for costs
on a punitive scale.
’
[15]
This
Courts has time and time again warned against litigants making
unfounded allegations of bias on the part of presiding officers
tasked to decide disputes, without cogent proof to substantiate the
allegation.
[11]
In the context of employment law, this would be arbitrators tasked to
do so under the dispute resolution processes of the LRA,
and judges
of this Court. As said in
President
of the Republic of South Africa and others v South African Rugby
Football Union and Others
[12]
:
‘
In
applying the test for recusal, Courts have recognised a presumption
that judicial officers are impartial in adjudicating disputes.
This
is based on the recognition that legal training and experience
prepare Judges for the often difficult task of fairly determining
where the truth may lie in a welter of contradictory evidence.
The
test should be applied on the assumption that a reasonable litigant
would take these considerations into account. A presumption
in favour
of Judges’ impartiality must therefore be taken into account in
deciding whether such a reasonable litigant would
have a reasonable
apprehension that the judicial officer was or might be biased.
’
[16]
Any
allegation of bias, especially on the part of a Judge of this Court,
must be substantiated by a proper factual basis, must not
be based on
mere speculation and conjecture, and must be proved by the party
alleging bias.
[13]
In
Turnbull-Jackson
v Hibiscus Coast Municipality and others (Ethekwini Municipality as
amicus curiae)
[14]
the Court dealt with unfounded allegations of impropriety made
against public officers, a
nd
held:
‘…
I
am moved to caution against wanton, gratuitous allegations of
bias
– actual or perceived – against public officials.
Allegations of bias, the antithesis of fairness, are serious.
If made
with a sufficient degree of regularity, they have the potential to be
deleterious to the confidence reposed by the public
in
administrators. The reactive bias claim stems from unsubstantiated
allegations of corruption and
incompetence. These are serious allegations, especially the one of
corruption. Yes, if public officials are corrupt, they must
be
exposed for what they are: an unwelcome, cancerous scourge in the
public administration. But accusations of corruption against
the
innocent may visit them with the most debilitating public opprobrium.
Gratuitous claims
of
bias like
the
present are deserving of the strongest possible censure.
’
[17]
What
the applicant is in effect doing is to launch a scurrilous attack
without any foundation for it, on what the applicant perceives
to be
an unwanted decision maker that did not give him what he wanted, in
the course of seeking leave to appeal, with the hope
that this would
simply motivate the granting of leave to appeal.
[15]
This kind approach is ill conceived, and I simply cannot buy into it.
The answer to this kind of conduct can hardly be better expressed
than in the following
dictum
in
Turnbull-Jackson
:
[16]
‘
This
would be the easiest stratagem for the unscrupulous to get rid of
unwanted decision-makers: if I insult you enough –
whatever
enough may be – you are out. This is without substance. It
proceeds from an assumption that officials with decision-making
power
would respond the same way to insults. It ignores the following: the
training of the officials; their experience; possibly
even their
exposure to abuse and insults – from time to time – and
the development of coping skills; and other personal
attributes, all
of which may render them impervious to, or tolerant of, insults. A
finding
of
bias cannot be had for the asking. There must be proof; and it is the
person asserting the existence of bias who must tender
the proof. The
applicant has failed dismally in discharging the
onus
on
the so-called reactive bias …’
[18]
In
any event, it has been held that judges do bring their life and work
experiences with them to the bench, and it is not improper
to bring
individual perspectives to bear in the adjudication of disputes.
[17]
Interaction with other law firms and counsel in SASLAW, insofar as
this may influence an individual perspective of a judge, is
thus not
improper and cannot disqualify a judge from hearing a dispute,
despite what the applicant may believe.
[19]
Overall
considered, the criticism dispensed by the applicant of this Court,
as well as the allegations of bias, are without any
shred of
foundation of fact, and falls far short of establishing bias and
disqualification of hearing a matter as contemplated
by law. The
applicant’s contentions are disrespectful, and an unjustified
assault on the integrity of this Court, when there
is simply no basis
for doing so.
[20]
The
application for leave to appeal also contained a material factual
misrepresentation, compounded by the fact that the applicant
did not
even take the effort to have the
ex
tempore
judgment transcribed. It is said that I took into account the ‘forced
resignation’ of the applicant and that the matter
is moot. I
did nothing of the sort. I in fact held that I would not consider the
issue of mootness as the respondent did not properly
raise it, and
only referred to it in its heads of argument without any supporting
evidence. I simply decided the matter on the
merits thereof, as
gathered from the pleadings as it stood before me. It is the duty of
any legal practitioner not to misrepresent
facts to Court. In
Molepo
v Passenger Rail Authority of South Africa
[18]
the Court held:
‘
P
leadings
should not be a fabrication and legal practitioners have a duty to
the court, not only to his client, and must not misrepresent
facts to
the court.
Jwili
v Road Accident Fund
2010 (5) SA 32
(GNP) ([2010] ZAGPPHC 37) [also reported at
[2010] JOL 25488
(GNP) –
Ed];
Tshabangu
v Road Accident Fund
[2011]
ZAGPJHC 145 (19 October 2011);
Kunene
v Road Accident Fund
[2011]
ZAGPJHC 194 (8 December 2011); and
Sibeko
v Road Accident Fund
[2012]
ZAGPJHC 43 (28 March 2012) [also reported at
[2012] JOL 28650
(GSJ) –
Ed], give a clear indication to attorneys of the expectations of them
from the courts.
The
above authorities apply equally to notices placed before a court
under the hand of an attorney.
’
[21]
For
the above reasons alone, the applicant’s application for leave
to appeal constitutes an abuse of the processes of this
Court, and
should be dismissed.
[22]
But
even considering the prospects of success of the applicant’s
application for leave to appeal, it is simply hopeless.
When
deciding whether to grant leave to appeal to the Labour Appeal Court,
the Labour Court must determine whether there is a reasonable
prospect that another Court would come to a different conclusion to
that of the Court
a quo
,
or in other words the appeal would have a reasonable prospect of
success.
[19]
As said in
South African
Clothing and Textile Workers Union and Others v Stephead Military
Headwear CC
[20]
:
‘
It
is trite that for an application for leave to appeal to be
successful, it is required of the party seeking such leave to
demonstrate
that there are reasonable prospects that another court,
in this instance, the Labour Appeal Court, would come to a different
conclusion
to that reached in the judgment that is sought to be taken
on appeal. …
’
[23]
In
Member of the
Executive
Council for Health, Eastern Cape v Mkhitha and Another
[21]
the Court applied the concept of ‘reasonable prospects of
success’ as follows:
‘
Once
again it is necessary to say that leave to appeal, especially to this
Court, must not be granted unless there truly is a reasonable
prospect of success. Section
17(1)(a)
of the Superior Cou
rts
Act 10 of 2013 makes it clear that leave to appeal may only be given
where the judge concerned is of the opinion that the appeal
would
have
a reasonable prospect of success; or there is some other compelling
reason why it should be heard.
An
applicant for leave to appeal must convince the court on proper
grounds that there is a reasonable prospect or realistic chance
of
success on appeal. A mere possibility of success, an arguable case or
one that is not hopeless, is not enough. There must be
a sound,
rational basis to conclude that there is a reasonable prospect of
success on appeal.
’
[24]
The
applicant has satisfied none of the above. The applicant has made out
no case to the effect that there is a reasonable prospect
of success
on appeal where it comes to the critical issues dealt with in my
judgment, especially those concerning the conclusion
that there
simply was no legal foundation for the applicant’s application,
the applicant has a proper alternative remedy
in the normal course,
and that the applicant in essence sought to bypass the prescribed
dispute resolution processes in terms of
the LRA. I have dealt
with this in detail in my original judgment and there is no need to
revisit the issue again. Suffice
it to say that there exists no
reasonable prospect of success in an appeal Court deciding otherwise.
[25]
Further,
the applicant has simply regurgitated the same arguments relating to
legal representation in retrenchment proceedings,
as those presented
when the matter was originally argued. These arguments lacked merit
then, as they do now. There is no reasonable
prospects of success on
appeal in this regard.
[26]
The
applicant has sought to place considerable emphasis in the
application for leave to appeal on the judgment of
Workers
Labour Consultants obo Khoza and Others v Zero Appliances CC
.
[22]
The judgment is no authority for the proposition that legal
representation is allowed as a matter or right in retrenchment
consultations.
The Court held that it was unfair for the employer in
that case to refuse to allow the employee parties any external
representation,
and insisting that the process must be kept ‘in
the family’, as the Court called it.
[23]
This is a far cry from the applicant’s case in this instance.
[27]
It
may be added that the judgment in
Zero
Appliances
actually illustrates the point I sought to make in my judgment to the
effect that this is an issue that must be dealt with in terms
of the
dispute resolution processes under the LRA in the normal course. In
Zero
Appliances
,
the Court was actually dealing with an unfair retrenchment case, and
held that the retrenchment of the employees was unfair because,
inter
alia
,
they were denied any representative and this led to them not being
properly consulted.
[24]
The Court then afforded the employees relief under the LRA as a
result of this unfairness. The point is that the same avenue was
always open to the applicant had he been retrenched and had he
believed that refusing to consult his legal representative rendered
his retrenchment unfair. The applicant was not able to provide any
answer to the difficulty this situation caused his application.
[28]
But
importantly, and where it comes to the applicant’s intention to
appeal, the issue of mootness becomes relevant. The respondent
has
specifically raised this in its answering submissions. The contention
that the matter is moot arises from what now appears
to be
undisputed, that the retrenchment exercise applying to the applicant
was not pursued to finality, the applicant has in fact
resigned from
the employment of the respondent, and is pursuing an unfair
constructive dismissal dispute in the CCMA. There is
considerable
force in the respondent’s contention that the matter is moot as
a result. The fact is there is simply no longer
any live
lis
between the parties relating to representation in a retrenchment
consultation, as not only does no such consultation exist, but
the
employment relationship between the parties has since ended.
[29]
The
pertinent question is what possible practical effect could the order
sought in the notice of motion in the applicant’s
application
still have, and the answer has to be none at all. In
National
Coalition for Gay and Lesbian Equality v Minister of Home Affairs
[25]
the Court
said:
'A
case is moot and therefore not justiciable if it no longer presents
an existing or live controversy which should exist if the
Court is to
avoid giving advisory opinions on abstract propositions of law'
.
[26]
[30]
The
applicant’s two counsel, had they simply applied due and proper
care and discharged their duties in a professional manner,
must have
appreciated that any further conducting of this matter in an appeal
court was bound to fail because the matter was moot.
However, the
fact that it is still being pursued indicates to me that, what this
is all about is, in reality only the issue of
legal fees. This kind
of approach is simply unacceptable. In
Mashishi
v
Mdladla NO and Others
[27]
the Court recently dealt with this consideration in the following
manner:
‘…
The
only reason that I have prepared a written judgment is to draw the
attention of practitioners and others with right of appearance
in
this court to the abuse of this court’s process that continues,
notwithstanding prior indications from the bench that
given the
court’s limited resources and the backlogs that have built up
(especially in relation to the motion rolls), consideration
would be
given to making punitive costs orders and orders to the effect that
practitioners forfeit their fees where that is appropriate.
Judge
Owen Rogers recently suggested that it is improper for counsel to act
for a client in respect of claim or defence which is
hopeless in law
or on the facts. (Rogers O ‘The Ethics of the Hopeless Case’
December 2017 30(3)
Advocate
46.) Although these assertions are directed primarily at counsel (the
article having been published in the South African Bar Journal),
the
same principles apply to attorneys, and indeed all those who have the
right of audience before a court.) By this he means that
counsel must
be able to formulate a coherent argument comprising a series of
logical propositions which have a reasonable foundation
in law or on
the facts and which, if they are all accepted by the court, will
result in a favourable outcome, even if counsel believes
that one or
more of the essential links are likely to fail. But counsel acts
improperly when she is ‘quite satisfied’
that one or more
of them will fail. In particular, there is an ethical obligation on
counsel to ensure that only ‘genuine
and arguable’ cases
are ventilated, and that this be achieved without delay (at 51).
’
[31]
I
fully ascribe to this reasoning in
Mashishi
.
If it is applied to the current matter, even the original application
should never have been pursued, and most certainly not the
current
application for leave to appeal. The two counsel concerned should
have advised the applicant that further legal action
is hopeless, and
should be left to die a natural death. What has however been allowed
to perpetuate is nothing else but an abuse
of process, causing an
undue strain on the already stretched resources of this Court.
[32]
The
judgment in
Mashishi
also
puts paid to the applicant’s contention that depriving a legal
representative of charging a client a fee is
ultra
vires
conduct
on the part of this Court. There can be no doubt that this Court has
the power to grant such an order, should circumstances
so require, as
a mark of displeasure for the kind of unacceptable conduct described
in
Mashishi
.
[28]
The applicant’s contentions of
ultra
vires
conduct in this regard is entirely unfounded, and this case has no
prospects of success on appeal.
[33]
In
sum therefore, the applicant has dismally failed to make out a case
justifying the granting of leave to appeal. The applicant
has failed
to comply with the Rules of this Court and the Practice Manual. The
applicant’s counsel have conducted themselves
in a manner that
is disrespectful, unprofessional, unduly attacking the integrity of
this Court in a manner deserving of censure.
None of the grounds
sought to be made out in the application for leave to appeal have any
reasonable prospects of success on appeal.
And finally, to boot, the
matter is moot as well.
[34]
The
application for leave to appeal therefore falls to be dismissed.
Costs
[35]
In
its submissions, the respondent has stated that the current
application for leave to appeal is an abuse of process, and the
applicant’s legal representatives should be sanctioned with a
punitive costs award,
de
bonis propriis
.
Of course, this Court is empowered to award costs
de
bonis propriis
.
[29]
I have little hesitation in concluding that this is indeed a matter
where such a costs order is not only justified, but necessary,
for
the reasons to follow.
[36]
Considering
when costs orders
de
bonis propriis
are justified, I refer to
Stainbank
v SA Apartheid Museum at Freedom Park and Another
[30]
where the Court said:
‘
Although
the Courts have the power to award costs from a legal practitioner’s
own pocket, costs will only be awarded on this
basis where a
practitioner has acted inappropriately in a reasonably egregious
manner. However, there does not appear to
be a set threshold
where an exact standard of conduct will warrant this award of costs.
Generally, it remains within judicial discretion.
Conduct seen as
unreasonable, wilfully disruptive or negligent may constitute conduct
that may attract an order of
costs
de
bonis
propriis
.’
[37]
In
Candy
and Others v Coca Cola Fortune (Pty) Ltd
[31]
The Court held:
‘
In
terms of s 162(3) of the LRA, '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'. Clearly this would include the power to make a costs award de
bonis propriis against a representative. In
Moloi
& another v Euijen & another
,
the court said that 'costs de bonis propriis are awarded against
legal practitioners in cases which involve delinquencies such
as
dishonesty, wilfulness or negligence in a serious degree'. Factors
for consideration referred to in
Moloi
were whether the representative acted dishonestly in his dealings
with the court
,
whether he indulged in contemptuous conduct, whether he perpetrated
fraud on the
court,
whether he misled or placed false evidence before the court and
whether his conduct smacked of wilfulness or negligence to
a serious
degree. The court in
Indwe
Risk Services (Pty) Ltd v Van Zyl: In re Van Zyl v Indwe Risk
Services (Pty) Ltd
said that 'where the court is
of
the view that there is a want of bona fides or where the
representative had acted negligently or even unreasonably',
the
court
would
consider awarding costs against such a representative.’
[38]
It
must also be considered that legal practitioners practising in this
Court are part of a profession that
which
demands complete professionalism, honesty, reliability and
integrity
from
its
members, and who owe the court a duty to be truthful, and maintain an
appropriate level of professionalism and courtesy.
[32]
Where legal practitioners make un
sustained
and unwarranted attacks on other litigants, or witnesses or judicial
officers, it displays the kind of unprofessionalism
justifying a
costs award
de
bonis propriis
.
[33]
Costs
de
bonis propriis
also constitute a conveyance of a court’s displeasure when
these noble objectives are flouted or not adhered to.
[34]
[39]
In
this instance, the manner in which the applicant’s counsel
chose to pursue the application for leave to appeal is certainly
inappropriate
in
a reasonably egregious manner
as
contemplated by the above
dictum
in
Stainbank
.
This conduct ticks all the boxes where it comes to justifying a costs
order
de
bonis propriis
.
Summarized as succinctly as possible, the conduct was contemptuous,
unreasonable and completely lacking in
bona
fides
.
Also, false statements were made in the application for leave to
appeal and accompanying submissions.
[35]
The application was pursued in circumstances where it must be
abundantly clear to any one exercising a modicum of diligence and
care that it should never have been pursued.
[40]
In
addition, after the respondent filed its written submissions, counsel
for the applicant was forewarned and had the opportunity
to then
perhaps simply bring matters to an end by withdrawing the
application. But counsel pressed on, undeterred, which also supports
the granting of costs
de
bonis propriis
.
[36]
Also relevant in this regard is that the matter was still being
pursued, when it was clearly moot, which is the same basis on which
the Court in
Mahlangu
and another v Mahlangu and Others
[37]
decided to award costs
de
bonis propriis
.
[41]
Next,
it must be considered when punitive costs is justified. In this
regard, and also in
Stainbank
,
[38]
the Court held:
‘
Punitive
costs have been granted when a practitioner instituted proceedings in
a haphazard manner; wilfully ignored Court
procedure or rules;
presented a case in a misleading manner; and forwarded an
application that was plainly misconceived
and frivolous.’
And
in
Geerdts
v Multichoice Africa (Pty) Ltd
[39]
it was said:
‘
In
awarding costs on the attorney and client scale, the Court has a
discretion, to be exercised judicially upon a consideration
of all
the facts. As between the parties, it is a matter of fairness to both
sides. Vexatious, unscrupulous, dilatory or mendacious
conduct on the
part of an unsuccessful litigant may render it unfair for his
opponent to be out of pocket in the matter of his
own attorney and
client costs …
’
[42]
Punitive
costs will also be justified where a litigant adopts what is called
an ‘
unconscionable
stance
‘,
[40]
or conducts him/herself in an unacceptable manner in the course of
the proceedings.
[41]
Punitive costs also serve as a mark of a court’s
displeasure.
[42]
The failure to maintain a reasonable standard of workmanship and
skill in the drafting of documents and bringing of a case to court
may also justify a punitive costs award, where the ultimate cause
fails as a result of this failure.
[43]
[43]
Again,
and
in
casu
,
all the boxes justifying punitive costs are ticked. The provisions of
the Practice Manual were ignored and the
ex
tempore
judgment was not even transcribed, showing a disregard for regulatory
provisions. The application for leave to appeal was indeed
presented
in a misleading manner, and was no doubt frivolous. There was
contemptuous conduct, and an unwarranted attack on the
integrity of
this Court. In fact, there are many comparisons between the matter
in
casu
and the judgment in
Geerdts
,
[44]
where the Court indeed awarded punitive costs.
[44]
In
fact, it would seem that Advocate Mthenjwa has a penchant for
flouting Court rules and conducting frivolous litigation, and then
accusing the presiding Judge of impropriety. In
Mthenjwa
v Steyn and
Another
[45]
,
advocate Mthenjwa sought consent to institute legal proceedings
against Judge Elize Steyn of the Western Cape Division of the
High
Court. This however required, in terms of section 47(1) of the
Superior Courts Act
[46]
,
the leave of Head of the Court to do so. Advocate Mthenjwa not
only failed to comply with this provision, but did not even
disclose
the nature of the litigation he intended to institute against Judge
Steyn. As part of the reasoning in dismissing the
application with
costs, Tlaletsi JP said the following:
[47]
‘
There
is one general observation I wish to make. The applicant is
quite indifferent in his conclusions. His incautiousness
was
expressed in his papers and during his address. He accused the
first respondent of racism, “
attempted
bribe”,
that “…
it
brings out her deceitful character…”
These are strong allegations which should not be lightly made against
a person, worse against a judicial officer.
’
Advocate
Mthenjwa did not heed what is clearly a warning about this kind of
conduct, and has in essence done the same, in this matter,
again.
This si certainly deserving of censure.
[45]
Finally,
applying what was said in
Mashishi
,
and for in essence the same reasons ventilated above, I am once again
compelled to order that the applicant’s legal representatives
are not entitled to charge the applicant any fees or disbursements
for the application for leave to appeal.
[46]
In
summary, I am satisfied that this is a case where a special costs
award is justified. This is a case where the applicant’s
counsel must be ordered to pay the costs of the application for leave
to appeal,
de
bonis propriis
,
on the scale as between attorney and own client. Further, their own
client should not be left out of pocket by these ill-advised
legal
proceedings, and it is also justified that no fee or disbursement may
be charged to the applicant for this.
Order
[47]
In
the premises, I make the following order:
1.
The
applicant’s application for leave to appeal is dismissed;
2.
The
applicant’s counsel, advocate Sepheka Mthenjwa and advocate
Katlego Kwape are ordered to pay the costs of the application,
de
bonis propriis
,
on the scale as between attorney and own client, the one paying the
other to be absolved;
3.
The
applicant’s attorneys and counsel shall not be entitled to
charge the applicant any fee or disbursement for the application
for
leave to appeal.
_____________________
Sean Snyman
Acting Judge of the Labour Court
Appearances:
For the Applicant: Advocates S
Mthenjwa and K Kwape
Instructed by: Braimoh Attorneys
For the Respondent: Advocate E
Richards
Instructed by: Bowman Gilfillan Inc
Attorneys
[1]
Act 66 of 1995.
[2]
(2017) 38 ILJ 430
(LC) at para 13. See also
Ralo
v Transnet Port Terminals and Others
(2015)
36
ILJ
2653 (LC)
at
para
9
;
Tadyn
Trading CC t/a Tadyn Consulting Services v Steiner and Others
(2014)
35
ILJ
1672 (LC)
at
para
11
;
Butana
v SA Local Government Bargaining Council and Others
[2016] JOL 36088
(LC) at paras 8-9;
Edcon
(Pty) Ltd v Commission for Conciliation, Mediation and
Arbitration and
Others: In re Thulare and Others v Edcon (Pty) Ltd
(2016)
37
ILJ
434 (LC)
at
para
24
;
3G
Mobile (Pty) Ltd v Raphela NO and Others
[2014]
JOL 32479
(LC) at para 36.
[3]
See
Samuels
v Old Mutual Bank
(2017)
38 ILJ 1790 (LAC) at para 17;
MJRM
Transport Services CC v Commission for Conciliation, Mediation and
Arbitration and
Others
(2017)
38 ILJ 414 (LC) at paras 12 – 14;
SA
Municipal Workers Union on behalf of Mlalandle v SA Local Government
Bargaining Council and Others
(2017)
38 ILJ 477 (LC) at paras 5 – 6.
[4]
2011 (9) BCLR 905
(CC) at para 120.
[5]
(2005)
26 ILJ 452 (LAC).
[6]
Id at para 51.
[7]
Id at para 60.
[8]
(
supra
)
at para 55.
[9]
1989
(4) SA 292
(W)
.
[10]
(2016) 37 ILJ 1704
(LC) at para 14.
[11]
See for example
Sappi
Kraft (Pty) Ltd t/a Tugela Mill v Majake NO and Others
(1998) 19 ILJ 1240 (LC) at para 48;
SMCWU
v Party Design CC
[2001] 6 BLLR 667
(LC) at para 12;
[12]
1999 (4) SA 147
(CC) at paras 40 – 41 (‘SARFU’). See also
South
African Commercial Catering and Allied Workers Union and Others v
Irvin & Johnson Ltd (Seafoods Division Fish Processing)
(2000)
21 ILJ 1583 (CC) at para 12;
S
v Basson
2007 (3) SA 582
(CC) at para 30;
Ntuli
and another v S
[2018] 1 All SA 780
(GJ) at para 16.
[13]
See
Irvin
& Johnson
(
supra
)
at para 12;
Basson
(
supra
)
at para 31;
Sappi
Kraft
(
supra
)
at para 48.
[14]
2014 (11) BCLR
1310
(CC) at para 35.
[15]
Compare
De
Lacy
(
supra
)
at
para 66.
[16]
(
supra
)
at para 32.
[17]
SARFU
(
supra
)
at paras 42 – 43;
Irvin
& Johnson
(
supra
)
at para 13;
Basson
(
supra
)
at para 30.
[18]
[2014] 5 BLLR 456
(LC) at paras 21 – 22.
[19]
See
Section
17(1)(a)
of the
Superior Courts Act 10 of 2013
;
Molefe
v MMARAWU and Others
[2017] ZALCJHB 337 (13 September 2017);
Mbawuli
v Commission for Conciliation, Meditation and Arbitration and Others
[2017] ZALCJHB 275 (1 August 2017);
Glencore
Operations South Africa (Pty) Ltd v NUM obo Maripane and Others
[2017] ZALCJHB 147 (11 May 2017).
[20]
[2017] JOL 37932B
(LC) at para 7.
See also
Seathlolo
and Others v Chemical Energy Paper Printing Wood and Allied Workers
Union and Others
(2016)
37 ILJ 1485 (LC)
at
para 3.
[21]
[2016] JOL 36940
(SCA) at paras 16 – 17.
[22]
[1999] ZALC 193
(7
July 1999).
[23]
See para 27 of the judgment.
[24]
Id at para 29.
[25]
2000
(2) SA 1
(CC)
at
para 21 footnote 18.
[26]
See also
City
of Cape Town v SA Municipal Workers Union on behalf of Abrahams and
Others
(2012) 33 ILJ 1393 (LAC) at para 11;
Multichoice
Africa (Pty) Ltd v Broadcasting Electronic Media & Allied
Workers Union and Others
(2012) 33 ILJ 177
(LAC)
at para 16;
SA
Transport and Allied Workers Union v ADT Security (Pty) Ltd
(2011) 32 ILJ 2112 (LAC) at paras 4 – 5. In
Sun
International Ltd v SA Commercial Catering and Allied Workers Union
(2017) 38 ILJ 1799 (LAC) at para 21 the Court described it as ‘The
appellant has in effect asked for an advisory opinion
as to future
conduct’.
[27]
(2018)
39 ILJ 1607 (LC) at paras 13 – 14.
[28]
See also
section 162(2)
of the LRA,
which reads:
When
deciding whether or not to order the payment of costs, the Labour
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.
[29]
Section 162(3)
of the LRA.
[30]
2011 (10) BCLR
1058
(CC) at para 52. See also
General
Workers Union of South Africa and Others v Ramade Plastics (Pty) Ltd
[2010] ZALC 268
(11 February 2010) at para 13;
Mahlangu
and others v Femco (Pty) Ltd
[1999] ZALAC 18
(1 September 1999) at para 11.
[31]
(2015) 36 ILJ 677
(LC) at para 47
[32]
See
Candy
(
supra
)
at para 49;
Molepo
(
supra
)
at
paras
20-21
.
[33]
De Lacy
(
supra
)
at para 117.
[34]
SA Liquor
Traders' Association and Others v Chairperson, Gauteng Liquor Board
and Others
2009
(1) SA 565
(CC)
at para 54;
De
Lacy
(
supra
)
at para 121.
[35]
Compare
Molepo
(
supra
)
at para 23.
[36]
Candy
(
supra
)
at para 46.
[37]
[2017] JOL 37994
(SCA) at para 20.
[38]
(
supra
)
at para 53.
[39]
[1998] ZALAC 10
(29 June 1998) at para 48.
[40]
Du
Toit NO v Errol Thomas NO and Others
[2016] JOL 36040
(SCA) at para 13.
[41]
Moila
(
supra)
at para 60
;
Maluleke
and Others v Johnson Tiles (Pty) Ltd
(2008)
29 ILJ 2606 (LC) at paras 31 – 32.
[42]
Chairperson,
Gauteng Liquor Board
(
supra
)
at para 48.
[43]
Mphahlele
v Ephraim Mogale Municipality
(2018) 39 ILJ 879 (LC) at para 14;
January
v Standard Bank of South Africa Limited
[2015] JOL 34176
(ECG) at para 79.
[44]
See para 49 of the judgment.
[45]
[2017] ZAWCHC 161
(30 November 2017).
[46]
Act 10 of 2013.
[47]
Id at para 29. The unacceptable
conduct on the part of advocate Mthenjwa in the course of the
litigation can be found in paras
19 – 23 of the judgment.