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[2019] ZALCCT 20
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Sick Automation Southern Africa (APty) Ltd v Swanepoel and Another (C258/2018) [2019] ZALCCT 20 (2 August 2019)
IN
THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
Not
Reportable
Case
No: C258/2018
In
the matter between:
SICK
AUTOMATION SOUTHERN AFRICA (APTY) LTD Applicant
And
HANRE
SWANEPOEL
First
Respondent
DATALOGIC
(PTY)
LTD
Second Respondent
Date
heard: 16 May 2019
Delivered:
2 August 2019
JUDGMENT
RABKIN-NAICKER, J
[1]
This judgment concerns only the issue of costs. The applicant filed
an application to enforce a restraint
of trade agreement on the 3
April 2018. The answering affidavit filed of record by the first
respondent stated in paragraph 30
that:
“
Lastly
the Applicant has joined the Second Respondent as a party to these
proceedings, however no relief was sought against the
Second
Respondent. This had the effect of having my fixed term and interim
consultation agreement with the Second Respondent being
terminated
and has left me without an income for the immediate to medium terms
future.”
[2]
I deal only with the application for which the issue of costs was
reserved on the 20 April 2018, following
the applicant’s
decision not to proceed with the application
[1]
.
On the 16 April 2018, attorney for the applicant addressed the
following correspondence to the first respondent’s attorney
of
record:
“
Dear
Sir
1.
The answering affidavit served on behalf of
your client this morning refers.
2.
In paragraph 30 of it your client makes the
submission that the Second Respondent terminated his contract of
employment upon receipt
of the application. I confirm our telephonic
discussion that he indeed never commenced employment with the Second
Respondent.
3.
In these circumstances our client’s
application is moot and it will serve no purpose to argue it as the
Court is not inclined
to make order which are academic or cannot be
enforced.
4.
Our instructions are to offer that our
client withdraws its application and that each party is liable for
its own legal costs.
5.
We would appreciate if you could revert
with your client’s instructions before the close of business
today.”
[3]
In reply the attorney for the first respondent pointed out,
inter
alia
,
that the decision to withdraw the application belongs to the
Applicant and does not require the Respondent’s consent, and
that such withdrawal should be accompanied with an appropriate tender
for costs. Furthermore, it is recorded that the agreement
[2]
between the first and second respondents was cancelled as a direct
result of the application. In addition, first respondent’s
attorney stated that: “The reality is that the first respondent
had to incur costs in opposing the interdict sought by the
Applicant
and that these costs could have been avoided.”
[4]
The applicant submits that it was then forced to file a replying
affidavit addressing
the merits of the application, as well as costs.
It was argued by Mr. Posthma that the first respondent should never
have opposed
the application as once the agreement had been
terminated it became moot. No answering affidavit should have been
filed. The applicant
had to incur unnecessary costs in preparing the
replying affidavit.
[5]
I am not convinced that the issue of costs could not have been dealt
with in submission
by the applicant given its case that the
application was moot, without the drafting of a replying affidavit. I
am also unimpressed
by the submissions on behalf of the first
respondent. These seek to convince the Court of the mala fides of the
applicant, drawing
on issues raised in an application brought by the
first respondent in the application under J1462/18. As I have stated
in paragraph
2 above, this Judgment concerns costs under the above
case number, and cannot be influenced by judgments in other
applications
before another Court and between the same parties.
[6]
In the result, I am of the view that both parties could have
prevented the occurrence
of further costs. The first respondent could
have notified the applicant that the agreement had been cancelled
before incurring
the costs of filing its answering affidavit, and the
applicant did not need to file replying papers given that the
application
was moot on its own submission. In these circumstances I
exercise my wide discretion to make the following order:
Order
Each
party is to pay its own costs
_________________
H. Rabkin-Naicker
Judge
of the Labour Court
Appearances:
Applicant:
Snyman Attorneys
First
Respondent: Hogan Lovells South Africa Inc
[1]
Other
applications between the parties under case number J1462/18,
including orders as to costs have been dealt with by Le Grange
J.
[2]
The
nature of the relationship as employment or consultancy was disputed
in the papers.