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[2019] ZALCJHB 316
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Mtinde v Sheriff Johannesburg East and Others (J1104/2018) [2019] ZALCJHB 316 (29 October 2019)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not reportable
Case
no: j 1104/2018
In
the matter between:
LUMKO
MTINDE
and
SHERIFF
JOHANNESBURG EAST
UNIVERSAL
SERVICES AND ACCESS
AGENCY
CHAIRPERSON
AND BOARD OF USAASA
MINISTER
OF COMMUNICATIONS
AND
DIGITAL TECHNOLOGY
Applicant
First
Respondent
Second
Respondent
Third
Respondent
Fourth
Respondent
Heard:
22 October 2019
Judgment
delivered: 29 October 2019
JUDGMENT
VAN
NIEKERK J
[1]
The applicant was suspended by the first respondent on 14 March 2018.
He contested
the lawfulness of his suspension and on 28 March 2018,
he filed an urgent application in this court seeking to have the
suspension
set aside. The application was opposed. On 24 April 2018,
the court struck the application from the roll for lack of urgency,
with
costs, such costs to include the costs of two counsel.
[2]
The applicant could not have imagined then that consequent on the
order, in mid- September
2019, the sheriff would be attaching his
assets to satisfy a bill of costs taxed in the sum of R512 091.49. In
this application,
also brought on an urgent basis, the applicant
seeks to have the writ of execution issued on 1 August 2019 stayed,
pending the
outcome of an application to review and set aside the
taxed bill of costs.
[3]
The issuing of the writ has a history. The applicant was initially
represented by
Marweshe Attorneys, and later, when the costs order
was made, by Matuba Maponya Attorneys. A bill of costs was prepared
for the
respondents and served on Marweshe Attorneys, and not Matuba
Maponya, who were then on record. After the bill was taxed on 17 May
2019, the respondents demanded payment of the taxed costs. The
applicant then appointed Ndobela Lamola to deal with the matter.
On
23 May 2019, Ndobela Lamola wrote to the respondents’ attorneys
and advised that the taxed bill of costs had been addressed
to the
wrong attorneys, and that they were now attorneys of record. The same
letter acknowledged receipt of a taxed bill in the
sum of R 512
091.49, and recorded that the applicant intended to bring an
application to rescind the costs order. On 24 May 2019,
the
respondent’s attorneys wrote a letter to Ndobela Lamola in
which they acknowledged the area of having served a bill of
costs on
Marweshe Attorneys, and in which they gave an undertaking that the
taxed costs would not be enforced. At the same time,
the respondent’s
attorneys attached a new draft bill of costs for taxation
de novo
.
The applicant was requested to make an offer in regard to costs but
he did not respond. On 3 July 2019, the applicant’s
attorneys
were advised that the period within which to lodge objections to the
item stated in the bill of costs had lapsed and
that the bill would
be set down for taxation. On 16 July 2019, the notice of set down for
the taxation was sent to the applicant’s
attorneys. On 1 August
2019, the taxing master taxed the bill in the presence of the
applicant’s legal representative, and
without any objection to
any item by the representative. On the same date, an email was sent
by the respondents’ attorney
to the applicant’s
attorneys, attaching the taxed bill and demanding full payment.
[4]
The applicant contends that this application is urgent because after
receiving the
writ of execution on 17 September 2019, he contacted
his current attorneys of record to assist him to resolve the matter.
An offer
was made to settle the bill of costs, which was refused. On
15 October 2019, the applicant was advised by the respondents that
they persisted with their instruction to the sheriff to remove the
assets under attachment. The present application was filed on
18
October 2019.
[5]
The respondents dispute that the application is urgent. They contend
that any urgency
is self-created, since the applicant was aware as
far back as 17 May 2019 of the bill of costs and that he took no
steps to raise
any objections to the bill. Further, the writ of
execution was served on 17 September 2019, and the present
application filed only
a month later.
[6]
There is merit in this submission. On his own version, the applicant
has been aware
since mid-May of the bill of costs, and the
respondents’’ intention to have it taxed and enforced. In
early July 2019,
the applicant was presented with the revised bill of
costs and afforded the opportunity to object to any item and to
consider making
an offer of settlement. He did neither. On 1 August
2019 the applicant’s representatives were aware of the amount
that had
been taxed. Any right to review the taxing master in terms
of Rule 10 ought to have been filed within 10 days of the date of
taxation.
The applicant failed to file a review application within
this period. Indeed, at the time of the hearing of the present
application
22 October 2019, no review application had been filed.
The applicant ought therefore not to have been surprised when on 17
September
2019, the sheriff sought to execute the writ. Yet it took
the applicant another month, to the day, to file the present
application.
[7]
In these circumstances, any urgency there might be is self-created,
and the application
stands to be struck from the roll on that basis.
[8]
In so far as costs are concerned, s 162 affords the court a broad
discretion to make
orders for costs according to the requirements of
the law and fairness. In
Long
, the Constitutional Court
affirmed the proper approach to the exercise of a discretion in terms
of s 162 and awards of costs in
this court:
[27]
It is well accepted that in labour matters, the general principle
that costs follow the result
does not apply…This principle is
based on section 162 of the LRA, which reads:
(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.”
[28]
The relationship between the general principle of costs and section
162 was considered and settled
by this Court in
Zungu
:
“
In this matter,
there is nothing on the record indicating why the Labour Court and
Labour Appeal Court awarded costs against the
applicant.
Neither court gave reasons for doing so. It seems that both
courts simply followed the rule that costs follow
the result.
This is not correct…”
[9]
This court is in any event reluctant to make orders for costs against
individual employees, for whom
the prospect of an adverse costs order
may serve to inhibit the exercise of what they perceive as their
rights. Given particularly
that the applicant is an individual
employee who pursues a legitimately felt grievance against his
employer, the interests of the
law and fairness dictate that there
should be no order as to costs.
I
make the following order:
1. The
application is struck from the roll for lack of urgency.
2.
There is no order as to costs.
Andre
van Niekerk
Judge
APPEARANCES
For
the applicant: Adv. Serwarweng, instructed by Thembekile Graham
For
the respondents: Adv. L Monnakgotla, instructed by Leepile Attorneys