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[2019] ZALCJHB 197
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Moshoeshoe v Department of Justice and Constitutional Development: National (J8/17) [2019] ZALCJHB 197 (14 August 2019)
IN
THE LABOUR COURT OF SOUTH AFRICA JOHANNESBURG
Not
Reportable
case
no: J8/17
In
the matter between
A
R MOSHOESHOE
Applicant
and
DEPARTMENT
OF JUSTICE AND
CONSTITUTIONAL
DEVELOPMENT: NATIONAL
Respondent
Heard:
16 July 2019
Delivered:
14 August 2019
Summary:
The Labour Court has the power to award costs in terms of section 162
read with
section 158(1)
(a) (vii) of the
Labour Relations Act 66 of
1995
having regard to the considerations of law and fairness.
JUDGMENT
SWARTZ,
AJ
Introduction
[1]
The only issue for determination before the Court pertains to costs.
This
sole determination is as a result of the merits of the matter
becoming moot. This was only brought to the Court’s attention
on 16 July 2019, being the day this matter was argued.
[2]
The application was initially launched to compel the Respondent to
finalise
the job evaluation in respect of the position of Principal
Messenger at the Master of the High Court, Bloemfontein, as required
in terms of the Public Service Regulations, Chapter 4, Part 1,
Regulation 39(1) and 39(2).
[3]
The Respondent submitted in argument that the upgrading of
“Messengers”
to “Driver Messengers” within
the Department of Justice and Constitutional Development was
implemented and finalized
approximately around 14 November 2018.
[4]
The Respondent handed up additional heads of argument on the day of
the
hearing. Attached to the Respondent’s heads of argument is
the Applicant’s Service Record marked as annexure “A”
and dated 15 July 2019. This Service Record indicates that
the Applicant was upgraded from level 3 (three) to level 4
(four) on
1 October 2018.
[5]
Accordingly, the purpose of this application has become moot and the
only
issue to be determined is that of costs given that the merits
became moot at least 9 (nine) months prior to the hearing of this
application.
Factual
background
[6]
In May 2010, the Applicant initially lodged a grievance with the
Respondent in respect of the salary level on which he was employed.
After a series of events and as a result of the Applicant’s
persistence with this matter, the Applicant eventually launched this
application on 10 January 2017.
[7]
The matter
was initially unopposed and was set down for hearing on the unopposed
roll on 23 May 2017. On this day, the
Respondent attended
Court and the matter was ordered to be enrolled on the opposed roll
and timelines were ordered for the filing
of the Answering and
Replying Affidavits. Of importance in this Order of 23 May 2017
was that costs were ordered to be
in the cause.
[1]
[8]
Approximately 5 (five) months after the Respondent filed its heads of
argument, it upgraded the Applicant’s salary level, rendering
the merits of this application moot.
Parties’
Submissions
[9]
It is common cause that the merits have become moot and the only
issue
outstanding are the costs. The costs in question are the costs
in the cause from the Order of 23 May 2017 and the costs
of
16 July 2019.
[10]
The
Applicant contends that the merits became moot in that the Respondent
upgraded the Applicant’s salary level from level
3 (three) to
level 4 (four) in October 2018,
[2]
only after the Applicant had:
[10.1] launched
this application;
[10.2] first set
this matter down on 23 May 2017; and
[10.3] filed heads
of argument.
[11]
On
6 June 2019, the Applicant’s attorneys wrote a letter
to the Respondent requesting
[3]
that the Respondent tender the taxed costs and on confirmation
thereof, the Applicant would remove the matter from the roll of
16 July 2019
[12]
In this letter, the Applicant’s attorneys further stated that
if the Respondent did
not tender the taxed costs, the issue of costs
would have to be argued. The Respondent did not respond to the
Applicant’s
attorney’s letter dated 6 June 2019.
[13]
The Applicant contends that he had no choice but to instruct counsel
to appear on 16 July 2019
to argue costs.
[14]
The Respondent argued that the Applicant’s attorneys were
notified that the Applicant’s
salary had been upgraded on 14
November 2018 and had requested the Applicant to withdraw his
application.
[15]
The Respondent referred the Court to the Applicant’s
supplementary practice note
dated 11 June 2019 which does not refer
to the merits being moot and states that the matter will proceed on
16 July 2019.
[16]
The Respondent is of the view that as the Applicant was aware that
the merits had become
moot by the very latest November 2018, the
matter should have been withdrawn and there should be no order as to
costs.
Reasoning/Merits
[17]
Rule 13 (1) of the Rules of this Court provides that:
“
(a)
A party who has initiated proceedings and
wants to withdraw the matter must deliver
a notice
of withdrawal as soon as possible.
(b)
If costs are not tendered any other party may apply on notice for
costs.”
[18]
It is common cause that the matter was not withdrawn by the Applicant
despite the Applicant
himself being fully aware that his position had
been upgraded from at least November 2018.
[19]
It is trite
that the Labour Court has the power to award costs in terms of
section 162 read with section 158(1)(a)(vii) of the Labour
Relations
Act
[4]
(LRA). Costs will
generally be awarded in favour of a successful party unless the
considerations of law and fairness dictate otherwise.
In considering
an order of costs in terms of section 162(2)(b) of the LRA, the Court
will take into account the conduct of the
parties in the following
respects:
“
(i) in proceeding
with or defending the matter before the Court; and
(ii) during the
proceedings before the Court.”
[20]
However,
the Labour Appeal Court (LAC) in
MEC
for Finance (KZN) v Dorkin
[5]
has held that “
the
norm ought to be that costs orders are not made unless those
requirements (of law and fairness) are met
”.
This approach has been confirmed by the Constitutional Court.
[6]
[21]
As to what
constitutes considerations of law and fairness in the exercise of a
discretion was explained within the context of the
now repealed
Labour Relations Act 195
6 in
Chevron
Engineering (Pty) Ltd v Nkambule and Others
[7]
“
Although
the appellant succeeds on appeal, when deciding the question of
costs, a discretion must be exercised after taking into
account the
requirements of law and fairness.
Section 17C(2)
specifically enjoins
this Court to decide the question of costs ‘according to the
requirements of law and fairness’.
The guidelines as to
fairness are set out in
NUM v East Rand Gold and Uranium Ltd
[1991] ZASCA 168
;
1992 (1) SA 700
(A) at 738F-739G. (See also
Performing Arts Council of the Transvaal v Paper Printing Wood and
Allied Workers Union
[1993] ZASCA 201
;
1994 (2) SA 204
(A) at
221A-C). The proper approach is to take account of the conduct of the
parties during the dispute and in the conduct of the
litigation. The
general approach developed by courts acting in terms of this Act is
that costs do not automatically follow the
result, unless there are
special or exceptional circumstances justifying a costs order. Mala
fides, unreasonableness and frivolousness
have been found to be
factors justifying the imposition of a costs order.”
[22]
Despite the
merits of this matter becoming moot, there was no settlement and the
reliance by the Respondent on the unreported case
Radebe
v South African Postal Workers Union and Others
[8]
in which there was a settlement, is misplaced for this very reason.
[23]
Prior to the Applicant’s upgrade, he had incurred legal costs
which he would not
have incurred had the upgrade been implemented by
the Respondent when the dispute was brought to its attention and/or
on the issuing
of the application.
[24]
It is common cause that the Respondent has never tendered costs. The
costs of 23 May 2017
were in the cause. As the matter had
to be placed on the unopposed roll due to the Respondent’s
conduct of opposing the matter
on the day of the hearing, being
23 May 2017, the Respondent should pay these costs.
[25]
In respect of the costs of 16 July 2019, it was argued by
the Applicant that
as the Respondent did not tender costs, the
Applicant had no choice but to come to Court to argue costs.
[26]
Although the Respondent did finally upgrade the Respondent, it did so
only after the heads
of argument had been filed. In my view, the
Applicant incurred unnecessary legal costs in circumstances which
such costs could
have been avoided had the Respondent acted
reasonably and tendered the costs in June 2019 when the
Applicant’s attorney’s
requested the Respondent to do so.
Conclusion
[27]
Despite the Court only being asked to determine the issue of costs,
the Court must still
deal with the application as such was not
withdrawn nor was the matter settled. As the matter has become moot,
the matter must
be struck from the roll.
[28]
In respect of costs, the Applicant’s persistence with the
application in respect
of the costs was not unreasonable nor
mala
fide
. Costs should have been tendered by the Respondent before
the hearing of this matter on 16 July 2019.
[29]
In the absence of such a tender, and the Court having had regard to
the history of this
matter, finds that the requirements of law and
fairness are met and the following order is deemed appropriate:
Order
1. The
application is struck from the roll.
2. The
Respondent is to pay the costs of 23 May 2017 and the costs
of 16 July 2019.
—————————————
S.
Swartz
Acting
Judge of the Labour Court of South Africa
Appearances
For
the Applicant: C
Malan
Instructed
by: J
Nortjie, Kramer Weihman & Joubert
For
the Respondent:
B.G Mashabane
Instructed
by: The
State Attorney
[1]
See
Court Order pg: 39 of paginated bundle.
[2]
Respondent’s
letter dated 14 November 2018 informing Applicant’s attorney
of upgrade.
[3]
Annexure B of Respondent’s supplementary heads of argument.
[4]
Act
66 of 1995 as amended
[5]
[2008]
6 BLLR 540
(LAC), cited in Ethekwini Municipality v Hadebe
[2016] 8
BLLR 745
(LAC) at para 35.
[6]
See
:
Zungu v Premier of the Province of KwaZulu-Natal
(2018) 39 ILJ 523 (CC) at paras 24–26.
[7]
2004 (3) SA 495
(SCA) at para 42.
[8]
J731/2013.