About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2019
>>
[2019] ZALCJHB 67
|
|
Maila v Guards on Call Security CC (JS204/17) [2019] ZALCJHB 67 (2 April 2019)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
case
No:
JS
204/17
In
the matter between:
MPHO
STOFFEL MAILA
Applicant
and
GUARDS
ON CALL SECURITY
CC
Respondent
Heard
:
4
& 5 March 2019
Delivered
:
02 April 2019
Summary:
Dismissal based on employer’s operational requirements –claim
for payment of balance
of severance package - unlawful deduction of
monies by employer from employee’s salary
JUDGMENT
PHEHANE
,
AJ
Introduction
[1]
The Applicant was employed by the
Respondent since 3 April 2013 until 15 January 2017, when the
Applicant was dismissed due to the
Respondent’s operational
requirements.
[2]
It is common cause that the Applicant’s
dismissal was procedurally and substantively fair. The point of
departure for
the Applicant, however, is his claim that he did not
receive from the Respondent, the full amount of the severance package
which,
on his version, was due to him.
[3]
The
Applicant approaches this court seeking relief that the balance of
the severance package in the amount of R34 336.08 be
paid to him
by the Respondent. According to the Applicant, the Respondent
unlawfully deducted an amount of R750.00 from his salary
over a
period of 45 months, as the Respondent was financially unsound
[1]
.
Issues
to be determined by the court:
[4]
The issues to be determined by the court
are:
4.1
Whether the retrenchment notice reflecting
the total severance package amount of R40 645.15 is authentic;
4.2
What the agreed retrenchment package was
between the parties;
4.3
Whether the Applicant was short paid of his
severance package in the amount of R34 336.08 as a result of the
Respondent failing
to take into account, the repayment of the
unlawful deductions from the Applicant’s salary.
Jurisdiction
Legislative
framework
[5]
Section 189
of the Labour Relations Act
[2]
(LRA) regulates retrenchments and provides that in engaging in a
consensus-seeking exercise, parties must
inter
alia,
attempt
to reach consensus on
the
severance pay for the dismissed employees
[3]
.
[6]
Severance
pay is given effect in section 41(2) of the Basic Conditions of
Employment Act
[4]
(BCEA) which
makes it peremptory for an employer to make severance payment to an
employee who is dismissed on reason of that employer’s
operational requirements.
[7]
In order to determine whether Mr Maila’s claim for the payment
of
the balance of his severance package is properly before Court, the
following provisions of section 41 of the BCEA are instructive:
‘
41
Severance pay
(1)
For the purposes of this
section, 'operational requirements' means requirements
based on the economic, technological, structural or similar needs of
an employer.
(2)
An employer must pay an employee
who is dismissed for reasons based on the employer's operational
requirements or whose contract of employment terminates or is
terminated in terms of section 38 of the Insolvency Act, 1936
(
Act
24 of 1936
),
severance pay equal to at least one week's remuneration for each
completed year of continuous service with that employer, calculated
in accordance with section 35.
…
(5)
The payment of severance pay in
compliance with this section does not affect an employee's right
to
any other amount payable according to law.
(6)
If there is a dispute only about
the entitlement to severance pay in terms of this section,
the
employee may refer the dispute in writing to-
(a)
a council, if the parties to the dispute
fall within the registered scope of that council; or
(b)
the CCMA, if no council has
jurisdiction.
(7)
The employee who refers the
dispute to the council or the CCMA must satisfy it that a copy
of the
referral has been served on all the other parties to the dispute.
(8)
The council or the CCMA must
attempt to resolve the dispute through conciliation.
(9)
If the dispute remains
unresolved, the employee may refer it to arbitration.
(10)
If the
Labour Court is adjudicating a dispute about a dismissal based on the
employer's operational requirements, the Court may
inquire into and
determine the amount of any severance pay to which the dismissed
employee may be entitled and the Court may make
an order directing
the employer to pay that amount
.’
(
Emphasis added
).
[8]
On 3 February 2017, Mr Maila representing himself, referred a dispute
to the Commission for Conciliation, Mediation and Arbitration (CCMA)
alleging unfair dismissal relating to operational requirements.
The
CCMA issued a certificate of outcome recording that the dispute
remained unresolved.
[9]
Pursuant thereto, Mr Maila launched an application in this Court,
once
more, representing himself. In his statement of case, he
articulates that his dispute concerns the short payment of his
severance
package. He alleges that his total severance package
amounted to R40 645.15 and that this amount includes the payment
of unlawful
deductions of R750.00 per month from his salary by the
Respondent over a period of 45 months, totalling R33 750.00.
[10]
Mr Maila’s dispute accordingly falls into the purview of
section 191(5) of the LRA
read with section 41(10) of the BCEA.
Therefore, the Court has jurisdiction to adjudicate his claim.
Onus
[11]
Section 192 of the LRA provides as follows:
‘
Onus in dismissal
disputes
(1) In any
proceedings concerning any dismissal, the employee must establish the
existence of the dismissal.
(2) If the
existence of the dismissal is established, the employer must prove
that the dismissal is fair.’
[12]
In this case, dismissal is not in issue.
The challenge is directed at the amount of severance money that Mr
Maila is entitled to.
Therefore, what becomes relevant is the
‘evidentiary burden’; to whom this burden shifts to
persuade the Court that
that litigant is entitled to the relief he
seeks.
[13]
In
Louw
v Golden Arrow Bus Service (Pty) Ltd
[5]
direction is provided on
whom the burden of proof lies, where Landman J stated as follows:
‘
41.
I believe it is correct that the onus or burden of proof lies on the
applicant claiming relief.
I use the term onus or its equivalent,
burden of proof, in the sense used in
Pillay v Krishna
1946 AD
946
at 952 to mean the duty upon the litigant, in order to be
successful, of finally satisfying the court that he or she is
entitled
to succeed on the claim, or defence as the case may be. See
too Hoffman and Zeffert: The South 22 African Law of Evidence 4th ed
495.’
[14]
In the same judgment, in dealing with the
shifting of the evidentiary burden, the Court held at para 44 that:
‘
The
common law, though Hoffman and Zeffert are doubtful whether it is of
any great assistance, is instructive. I take the liberty
of
paraphrasing Davis AJA’s summary of the Roman law principle
in Pillay v Krishna (
supra
)
at 951-952. If one person claims something from another in a court of
law, then he or she has to satisfy the court that he or
she is
entitled to it. But there is a second
principle
which must always be read with it.
Where the person against
whom the claim is made is not content with a mere denial of that
claim, but se
ts
up
a special defence, then he or she is regarded
quo
ad
that defence as being the claimant and for the
defence to be upheld he or she must satisfy the court that he or she
is entitled
to succeed on it’
.(Emphasis added).
[15]
Where the Respondent goes to great lengths
in denying the Applicant’s claim, in particular, the
authenticity of the retrenchment
notice on which Mr Maila relies. The
evidentiary burden therefore shifted from Mr Maila to the Respondent.
[16]
Where Mr Maila alleges unlawful salary
deductions, the evidentiary burden shifts to him to prove that such
deductions took place
and that he is entitled to the relief he seeks.
Evidence
[12]
Mr Morries’ evidence on behalf of the
Respondent was that Mr Maila was employed as a security officer. Mr
Maila’s salary
at the commencement of his employment contract
was R130.00 per shift. A shift duration was 12 hours.
[13]
Mr Morries is the author of the time sheet
which reflects the number of days that the Applicant worked in the
month of December
2016. He is also the author of the salary summary
documents of all security guards of the Respondent for the months of
October
to December 2016. The salary summary documents reflect the
hours worked, the hourly rate, the deductions from the salary,
including
any loans owed and the net salary.
[14]
Mr Morries is responsible for collating the
salary summary documents and paying the salaries of the security
guards according to
the information contained on the salary summary
documents. His evidence was that he paid Mr Maila’s salary for
the months
of October to December 2016 according to these documents
and that no monthly deductions of R750.00 were deducted from Mr
Maila’s
salary during these months or at any stage.
[15]
It is common cause that the amounts that Mr
Maila received as his salary for the months of October to December
2016 corresponded
with the amounts on the salary summary documents of
these respective months. No deductions in the amount of R750.00 are
reflected
on the payslips.
[16]
Mr Morries’ evidence was that the
site where Mr Maila worked was cancelled by the client by way of a
notification in which
the client expressed that he was unhappy with
the service of the Respondent. The security guards accordingly had
been removed from
the site. Two employees were retrenched in January
2017 following this notification by the client, being Messrs Maila
and Ramabuda.
[17]
Mr Morries did not discuss the retrenchment
package with Maila. Mr Masindi, the labour consultant, discussed the
retrenchment package
with Mr Maila. Mr Morries identified the
retrenchment notice on which the Respondent relies, as the notice
that was authored by
Mr Masindi and approved by him. Mr Morries
confirmed that the signature on the retrenchment notice is his. The
total of the retrenchment
package reflected is R6 895.15. Mr
Morries testified that Mr Maila’s last working day was 15
January 2017.
[18]
Mr Morries further testified that Mr
Masindi was also the author of the retrenchment notice pertaining to
Mr Ramabuda and he confirmed
that he approved and signed the notice.
Mr Morries discussed both the retrenchment packages of Messrs Maila
and Ramabuda with Mr
Masindi.
[19]
Mr Morries testified that he was not
present when both retrenchment notices were handed over to the Messrs
Maila and Ramabuda. Further,
that no queries regarding both
retrenchment notices were raised with Mr Morries by either Mr Maila
or Mr Ramabuda.
[20]
The total retrenchment package that was
paid out to Mr Maila following deductions such as the provident fund
and UIF was an amount
of R6 309.06. It is common cause that this
amount was paid to Mr Maila.
[21]
With respect to the retrenchment notice
upon which Mr Maila relies reflecting the total amount of R40 645
15, Mr Morries’
evidence was that he did not sign this notice
and that he saw this notice for the first time in his attorney’s
office. He
said that the signature on this notice was forged. In
addition, that the main difference between the two retrenchment
notices is
that the notice relied upon by Mr Maila reflects an
addition of R750.00 X 45 months, amounting to R33 750.00.
[22]
Mr Morries was present at the CCMA when Mr
Maila’s dispute was conciliated. He denied that the
retrenchment notice on which
Mr Maila relies was presented at the
CCMA. The only issue that was raised at the CCMA by Mr Maila was
compensation and not the
calculation of his retrenchment package. He
confirmed that Mr Ramabuda withdrew his case at the CCMA. Mr Ramabuda
had referred
a joint dispute with Mr Maila and on the same merits.
[23]
Mr Morries denied that any agreement
existed between him and Mr Maila in terms of which he would deduct
R750.00 from his salary
every month. He further denied that the
company was having financial difficulties as a reason to make such
deductions. He confirmed
that Mr Maila did not complain or lodge a
grievance about salary deductions; neither did he report a matter of
salary deductions
to the Department of Labour.
[24]
He further testified that he paid one
lumpsum to Mr Maila on 9 September 2016 in the amount of R3 500.00
for leave days not
taken.
[25]
In cross examination, Mr Morries denied any
knowledge of what a second payment of R3 500.00 made to Mr Maila
on 4 October 2016,
was for. He confirmed that the first payment of
R3 500.00 on 9 September 2016 was for a period of leave for one
year that
was not taken. When he was questioned as to what became of
the remainder of the leave that was due to Mr Maila as no leave had
been taken by him since he commenced employment in April 2013, Mr
Morries’ evidence was that the remainder of the leave not
taken
by Mr Maila during the duration of his employment contract had been
forfeited. I find it strange that Mr Morries, who on
his own version
was responsible for salary payments, could not explain and distanced
himself from the second payment of R3 500.00
in October 2016,
which payment bore the same reference number as the preceding payment
in September 2016 and to which he admitted.
[26]
Mr Morries explained that Mr Maila’s
rate was initially R130 per shift when the contract was concluded and
the rate was increased
as and when salary increments were effected.
He further explained that he keeps his own timesheets that he marks
daily on the work
done by employees, as Mr Maila at times did not
submit time sheets. From these timesheets, salaries are paid and that
Mr Maila
at no stage complained about his salary.
[27]
Mr
Masindi’s evidence on behalf of the Respondent was that the
respondent contacted him to render advisory services. He advised
the
Respondent to notify Mr Maila and Ramabuda about the possible
retrenchment. This was done by way of letter dated 24 November
2017.
[6]
Mr Masindi thereafter,
consulted with both Messrs Maila and Ramabuda on the retrenchment. He
indicated to them that the Respondent
had no alternative vacancies
and retrenchment was the only option. He discussed their respective
retrenchment packages with them
and enjoined them to approach the
Department of Labour to verify the correctness of the calculation of
their retrenchment packages.
[28]
His evidence was that Mr Maila did not
furnish him with any information pertaining to the calculation of his
retrenchment package
and he did not mention the R750.00 deductions
from his salary.
[29]
Mr Masindi confirmed that he is the author
of both the retrenchment notices of Mr Maila and Mr Ramabuda on which
the Respondent
relies. He confirmed that he drafted these notices on
his personal computer at his home and that no one has access to the
content
stored thereon. He printed only four copies of the notices,
meaning two of each. He presented them to Mr Morries. Mr Morries
signed
two notices – one for Mr Maila and the other for Mr
Ramabuda. He then made copies of both original notices in order to
hand
the originals to Messrs Maila and Ramabuda and retain a copy.
When Mr Masindi attempted to hand the notice to Mr Maila, Mr Maila
tore it in his presence and told him that he is not his boss and that
he would talk to Mr Morries. Mr Maila refused to sign the
copy of the
original notice.
[30]
Mr Masindi testified that he is not the
author of the document upon which Mr Maila relies and that this
notice is fraudulent. He
further corroborated the evidence of Mr
Morries by stating that the first time he saw this document was in
his lawyer’s offices.
[31]
Mr Masindi testified as to the
discrepancies between this notice and that on which the Respondent
relies as well as the arithmetical
inaccuracies in the notice upon
which Mr Maila relies. He explained that the words “
Shortage
Salary as we agreed
” was factored
into the notice on which Mr Maila relies. He was at pains to
emphasize that the signature on the notice on
which Mr Maila relies
was forged.
[32]
Mr Masindi was present at the CMMA when
Messrs Maila and Ramabuda’s dispute was conciliated. He
corroborated Mr Morries’
evidence in stating that nothing was
mentioned at the CCMA about salary shortage by Mr Maila.
[33]
In cross-examination, it was put to Mr
Masindi that he did not hand the retrenchment notice to Mr Maila,
rather, that Mr Maila was
given the notice on which he relies,
directly by Mr Morries. Mr Masindi’s response was that he
authored the retrenchment
notice and the one that Mr Maila relies
upon was not authored by him.
[34]
During re-examination, Mr Masindi could not
explain how Mr Maila could have reconstructed the notice, as Mr
Masindi’s evidence
was that he tore it up before him. Mr
Masindi stated that perhaps he used the notice that was served on Mr
Ramabuda but conceded
that this was speculative.
[35]
Mr Maila’s evidence was that at the
commencement of his employment, him and Mr Morries entered into an
oral agreement in terms
of which Mr Morries would deduct R750.00 from
his salary on a monthly basis. He testified that the reason for such
arrangement
was because Mr Morries indicated that he could not afford
to pay him for the days he worked in excess of 30 days, for work
rendered
on Sundays and public holidays and for leave. Mr Maila
agreed to this arrangement.
[36]
Mr Maila approached Mr Morries in 2016,
seeking a repayment of the money that was being deducted, as he was
not taking leave. Mr
Morries then paid him R3 500.00 in
September 2016 and a further R3 500.00 in October 2016. When the
rest was not forthcoming
in November 2016, Mr Maila enquired form Mr
Morries. Mr Morries informed Mr Maila that he would retrench him and
that he would
give him a retrenchment package in
lieu
of the money that he owed to him. Mr Morries informed him to wait
until January 2017 for the retrenchment.
[37]
Mr Morries called him in January 2017 to
collect his retrenchment letter. The letter he received is the
retrenchment notice on which
he relies. He was surprised, at the end
of January 2017, to receive the salary of R6 309.06 when he was
expecting to receive
R40 645.15.
[38]
He approached the CCMA on 2 February 2017
to complain about the money that Mr Morries had undertaken to pay
over to him in terms
of their arrangement. He took the notice upon
which he relies to the CCMA and informed the CCMA about it; Mr
Morries denied any
knowledge of the retrenchment letter
[39]
In cross examination, Mr Maila was
questioned about the additional shifts he said he worked, which he
confirmed were six in number,
and whether he was not paid for those
shifts or whether R750.00 was deducted from his salary. His response
was that the six days
or shifts worked were deducted from his salary.
He could not explain by putting a monetary value to the shifts in
order to justify
his claim that the deduction of the six shifts
amounted to R750.00 per month. He insisted that the Respondent should
make the occurrence
book available, which would show the additional
shifts that he worked and was not paid for.
[40]
It was put to Mr Maila that he did not put
to Mr Morries, during his cross examination, his version of the six
shifts being deducted
from his salary. His response was that there
was an agreement between them when he commenced employment.
[41]
Mr Maila could not explain further, why he
did not deduct R7 000.00 comprising of the two R3 500.00 payments he
received in September
and October 2017 from his claim before this
court.
[42]
Mr Maila could not explain why deductions
of R750.00 per month were not reflected on his pay slips. When an
example was made of
the deduction of a loan of R250.00 from his
October 2016 salary slip, which is what Mr Morries had testified on
in his evidence,
Mr Maila said he could not recall having a loan from
the company.
[43]
Mr Maila denied discussing any retrenchment
package with Mr Masindi. He also denied that him and Ramabuda has the
same dispute at
the CCMA. He said that Mr Ramabuda’s challenge
at the CCMA was that he worked for Mr Morries for three years without
a contract.
I find his evidence unlikely, as a joint dispute was
referred by both Mr Maila and Mr Ramabuda; further, that Mr
Ramabuda’s
retrenchment notice, which is similar to that which
Respondent relies upon in respect of Mr Maila, mentions that Mr
Ramabuda was
employed for a period of one year and seven months.
[44]
Mr Maila denied forging the signature of Mr
Morries on the retrenchment notice on which he relies.
[45]
In the questions posed for clarity by the
Court, Mr Maila, confirmed that monies were deducted from his salary
monthly. He confirmed
that he had discussions with Mr Morries before
he handed him the retrenchment notice upon which he relies. He did
not discuss the
arithmetical error on his retrenchment notice with Mr
Morries after he received it, as his focus was on the total amount of
R40 000.00
he would receive. Mr Maila confirmed that his case
before this Court is about the monies that the Respondent deducted
from him.
Authenticity
of the retrenchment notice
[46]
Neither of the parties presented expert
evidence to assist the Court to reach a finding on the authenticity
or otherwise of the
retrenchment notices in dispute.
[47]
It is recognized in our law that there are
certain areas of expertise that another person, other than the Court,
will be more competent
to reach an opinion, based on the facts that
would assist the Court in making a decision. Expert evidence is
opinion evidence,
albeit
,
by a witness that relies on his expert knowledge in order to form an
opinion or to draw an inference.
[48]
Our
courts recognize two types of expert witness testimony. The first is
an opinion that is based on text book information and the
other is an
opinion based on practical knowledge.
[7]
[49]
This
concept was refined further. A lay person with relevant knowledge and
background could give an opinion on an issue despite
not being an
‘expert’ in the literal sense. In the matter of
Khangale
v S
[8]
the High Court found the following:
‘
As
it was correctly submitted by counsel for the appellant, the evidence
of a lay person on an issue in dispute will be admissible
and cogent
if such evidence is relevant in the legal sense, i.e if the witness,
by reason of his or her work situation or close
association with
situations like the one in issue, can be said to be better positioned
to talk authoritatively about that issue.’
[9]
[50]
Mr Masindi, by virtue of the advisory
services he rendered to the Respondent and him being the author of
the notice upon which the
Respondent relies, is better positioned to
speak authoritatively on the authenticity of the notices. Further,
the evidence of Messrs
Morries and Masindi on the one hand and Mr
Maila on the other, are mutually destructive.
[51]
When a
Court is faced with two irreconcilable versions, the best technique
to deploy in dealing with a factual dispute was set out
in
Stellenbosch
Farmers' Winery Group Ltd and Another v Martell & Cie SA and
Others
[10]
where the Court described the technique as follows:
‘
[5]
… To come to a conclusion on the disputed issues a court must
make findings on (a)
the credibility of the various factual
witnesses; (b) their reliability; and (c) the probabilities’.
[11]
Credibility/
Reliability and Probability Findings
[52]
When a Court is asked to make a finding on the credibility of the
witnesses that testified,
the Court in
Stellenbosch supra
stated the following:
‘…
the
court’s finding on the credibility of a particular witness will
depend on its impression about the veracity of the witness.
That in
turn will depend on a variety of subsidiary factors, not necessarily
in order of importance, such as (i) the witness’s
candour and
demeanour in the witness-box, (ii) his bias, latent and blatant,
(iii) internal contradictions in his evidence, (iv)
external
contradictions with what was pleaded or put on his behalf, or with
established fact or with his own extracurial statements
or actions,
(v) the probability or improbability of particular aspects of his
version, (vi) the calibre and cogency of his performance
compared to
that of other witnesses testifying about the same incident or
events.’
[12]
[53]
Thereafter, a Court will make an enquiry into the reliability of the
witnesses that testified.
The Court in
Stellenbosch supra
stated the following:
‘…
a witness’s
reliability will depend, apart from the factors mentioned under
(a)(ii), (iv) and (v) above, on (i) the opportunities
he had to
experience or observe the event in question and (ii) the quality,
integrity and independence of his recall thereof.’
[13]
[54]
Once a witness is found to be both credible and reliable, the Court
in
Stellenbosch supra
found that probability usually follows.
It ended the test with the following:
‘…
this
necessitates an analysis and evaluation of the probability or
improbability of each party’s version on each of the disputed
issues. In the light of its assessment of (a), (b) and (c) the court
will then, as a final step, determine whether the party burdened
with
the onus of proof has succeeded in discharging it ...’
[14]
[55]
Messsrs Morries and Masindi corroborated each other’s’
evidence with
respect to the creation of the retrenchment notice,
which was preceded by a consultative process. There were no material
contradictions
in their evidence in respect of the retrenchment
notice upon which the respondent relies. Their evidence was further
corroborated
insofar as what transpired at the CCMA was concerned. Mr
Maila sought compensation at conciliation. The referral form
indicates
this. I find that the calculation of the severance package
per se
was not an issue that was raised at the CCMA. Mr
Maila’s evidence that he raised the issue at the CCMA is
improbable.
[56]
To the extent that Mr Maila relied on the
oral agreement that was entered into between himself and Mr Morries
at the start of his
employment, as outlined above, Mr Maila did not
prove the existence of such agreement nor did he present any evidence
of the monthly
deductions of R750 per month. I find it improbable
that he would sit back over a period of 45 months and not complain
about the
deductions and the repayment thereof, until 3 years had
lapsed. I equally find it improbable that he would work additional
shifts
for no pay and take no leave over a three-year period without
any complaint.
[57]
Section 34(1) of the BCEA provides as
follows:
‘
An
employer may not make any deduction from an employee’s
remuneration unless –
(a)
subject to subsection (2), the employee in
writing agrees to the deduction in respect of a debt specified in the
agreement; or
(b)
the deduction is required or permitted in
terms of a law, collective agreement, court order or arbitration
award’.
[58]
I therefore, in the light of the provisions
of section 34(1) of the BCEA, find the evidence of Mr Morries more
probable, i.e. that
there were no deductions from Mr Maila’s
salary.
[59]
Mr Maila failed to put the version to Mr
Morries, while he was testifying, that it was Mr Morries and not Mr
Masindi who handed
the notice on which he relies to him and this was
in furtherance of their arrangement to ‘retrench’ him. Mr
Maila’s
version changed during his evidence, from unlawful
deductions to not being paid for additional shifts worked. The latter
was not
pleaded in his statement of case. This version was also not
put to Mr Morries. Mr Maila’s evidence in this regard is a
fabrication
and is accordingly rejected.
[60]
In the circumstances, I find that Messrs
Morries and Masindi’s evidence is credible and reliable. On a
balance of probabilities,
the evidence of the Respondent is more
probable.
[61]
In the circumstances, I find that the
Respondent has discharged its onus of proving that the retrenchment
notice relied upon by
it is the authentic notice; that the
retrenchment package of R6 895.15 is the correct amount; and
there was no short payment
to Mr Maila.
Costs
[62]
Section 162 of the Labour Relations Act provides as follows:
‘
162.
Costs
(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.’
[63]
What section 162 does is to confer on
this
Court, an unfretted discretion in
granting costs orders subject to the requirements of the law and
fairness. The Court is required
to take into account
inter alia
,
the conduct of the parties in proceeding with or defending the matter
before it.
[64]
The
protection of the discretion on judicial officers when making costs
orders was expressed by
Innes
CJ in
Kruger
Bros and Wasserman v Ruskin
[15]
when he said:
‘
the
rule of our law is that all costs – unless expressly otherwise
enacted – are in the discretion of the Judge. His
discretion
must be judicially exercised, but it cannot be challenged, taken
alone and apart from the main order, without his permission.’
[65]
The
requirements of law and fairness in awarding costs in this Court was
endorsed as early as 2008 in
Member
of the Executive Council for Finance, KwaZulu-Natal and Another v
Dorkin NO and Another
[16]
where
the Court held:
‘
[T]he
norm ought to be that cost orders are not made unless those
requirements [of law and fairness] are met. In making decisions
on
cost 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. That is a
balance that is not always easy to strike but, if the court is to
err, it should err on the side of not discouraging
parties to
approach these courts with their disputes.’
[66]
In putting
into context the striking of a balance as expressed in
Dorkin
[17]
the Labour Appeal Court in
Vermaak
v MEC for Local Government and Traditional Affairs, North West
Province and Others
[18]
,
remarked
that ‘
the
requirements of law and fairness are on equal footing, and none is
secondary to the other’
.
[67]
In
Zungu
v Premier of the Province of KwaZulu-Natal and Others
[19]
referred
with approval the decision in
Dorkin
[20]
and
reiterated
that the correct approach in labour matters is that the rule of
practice that costs follow the result does not apply; further the
importance of applying the requirements of law and fairness in
awarding costs was re-emphasized.
[68]
In this
case, the Respondent seeks a punitive cost order against the
Respondent. I do not find that the conduct of Mr Maila during
court
proceedings was
“
unconscionable,
appalling and disgraceful
”
[21]
to warrant a punitive costs order
against him. Mr
Maila
represented himself. I exercise my discretion in disallowing costs so
as not to discourage lay litigants from accessing the
courts to have
t
heir
matters ventilated.
[69]
In the premises, I make the following order:
Order
1.
The
Applicant’s claim is dismissed.
2. There is no order as
to costs.
_______________________
MTM Phehane
Acting
Judge of the Labour Court of South Africa
Appearances:
For
the Applicant: Mpho
Maila (Self Representing)
For
the Respondent: Advocate
JO Withaar
Instructed
by: JW
Wessels & Partners Inc.
[1]
Pleadings,
Statement of Case, p5, para 2.
[2]
Act
66
of 1995, as amended.
[3]
Sec 189 (c) of the L
abour
R
elations
A
ct
supra
.
[4]
Act 75 of 1997.
[5]
[1999] ZALC 166
(23 November 1999).
[6]
The
year ought to be 2016 according to the chronological sequence of
events.
[7]
See:
S
v Van As
1991 2 SACR 74 (W).
[8]
(A20/2015, 172/2014) [2016] ZALMPHC 4 (31 May 2016).
[9]
Ibid at para 52. See also:
S
v Klevnhans
2005(2) SACR 582(W):
S
v Ramaobin & Another
1986(4) SA 117.
[10]
2003 (1) SA 11 (SCA).
[11]
Id fn 11 at para 5.
[12]
Id fn 11 at para 5.
[13]
Id fn 11 at para 5.
[14]
Id fn 11 at para 5.
[15]
[
1918]
AD 63
at 69.
[16]
[2008] 29
ILJ
1707
(LAC) at para 19.
[17]
Id n 8 at para 10.
[18]
Unreported case no JA15/2014, 10-1-2017) at para 10.
[19]
[2018]
4
BLLR
323
(CC) at para 24.
[20]
Supra n 8.
[21]
fn
18 at para 13