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[2019] ZALCPE 2
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Eastcape Midlands TVET College and Another v National Education, Health and Allied Workers Union (NEHAWU) and Others (P53/19) [2019] ZALCPE 2; [2019] 7 BLLR 691 (LC) (6 March 2019)
the
labour court of South Africa, PORT ELIZABETH
Not
Reportable
case
no:
P53/19
In
the matter between:
EASTCAPE MIDLANDS TVET
COLLEGE
1st Applicant
DEPARTMENT OF HIGHER
EDUCATION
AND
TRAINING
2
nd
Applicant
and
NATIONAL EDUCATION,
HEALTH AND
ALLIED
WORKERS UNION (NEHAWU)
First
Respondent
THE
INDIVIDUALS WHOSE NAMES ARE
ANNEXED
HERETO ON ANNEXURE “A”
Second & Further Respondents
Heard
:
05 March 2019
Delivered
:
06 March 2019
Summary:
Strike interdict – interdicting conduct of the strikers –
strike ended following a settlement agreement. Applicant returning
to
court for costs order only – rule discharged. Section 162 of
the LRA in a strike context. Held (1): The interim order
is
discharged. (2): There is no order as to costs.
judgment
MOSHOANA,
J
[1]
Following
the recent Constitutional Court decision, it is apparent that the
default position with regard to costs is that costs
do not follow the
results in the Labour Court.
[1]
What a judge should do is to consider the issue of fairness and the
conduct of the parties. Of course fairness is a broad and elastic
concept. Section 162(1)(b)(i)(ii) of the LRA refers to a conduct
before the commencement of the proceedings and one during the
proceedings. The conduct is that of the parties and not that of their
representatives. Section 162(1) refers to two requirements.
The one
being law and the other being fairness. I can safely assume that in
the light of the Constitutional Court judgment, the
law part of it
has been completely handicapped. I am not certain whether such is
appropriate without the legislature amending section
162 of the LRA.
Nonetheless, I am bound by the Constitutional Court decision. In the
matter of
South
African Airways Technical (SOC) v SATAWU and another
[2]
,
my sister Prinsloo AJ (as she then was) concluded that the
requirements of law has been interpreted to mean that the cost would
follow the results
[3]
.
[2]
In
Dorkin
[4]
,
the LAC
referred to the costs following the results as being a rule of
practice. It therefore means that what had been abandoned
by the
Constitutional Court is the rule of practice. The Constitutional
Court did not pronounce itself on the question of what
the
requirement of the law mean. Whatever it means, it seems that the
remaining requirement is that of fairness. Although proper
reading of
Dorkin
,
which seem to have influenced
Zungu
,
suggests that the two requirements remain.
Zungu
influenced
Long
,
however it seems to be categorical that the law requirement has since
departed. In all these matters reference is made to “labour
matters”. It remains unclear in all the matters as to what
effectively is a labour matter. Generally, all matters justiciable
in
the Labour Court are considered to be labour matters. A labour
matter, in my view, is one that involves an employer and an employee,
inclusive of their representatives (employer’s organisation and
a trade union). Can it be said that if a matter may be justiciable
in
another court, like the High Court, it loses the touch of being a
“labour matter”, even if, it involves an employer
and
employees, as parties to the litigation? In my view, it appears
to be so.
[3]
An example that comes to mind is the section 77(3) of the BCEA claim.
Such a claim may be instituted in this court as well as in the civil
courts. Another is an interdict of conduct during a protest
action in
accordance with the Gatherings Act. Such an interdict may be
instituted in this court or in the high court. In terms
of section
68(1)(a)(i)(ii) of the LRA, the Labour Court has exclusive
jurisdiction to grant an interdict or order to restrain participation
in a strike or conduct in contemplation or in furtherance of a
strike. In both examples, if a party approaches the High Court as
opposed to the Labour Court, a cost order may be made on different
basis than what would obtain in the Labour Court. Does it then
mean
that a section 77(3) claim is a labour matter when instituted in the
Labour Court and a civil matter when instituted in the
High Court? It
does seem so. I do not intend to resolve this question in this
judgment. I shall leave the question open.
[4]
The Labour Court is a creature of a statute. The statute that created
it provides guidance when it comes to costs. To my mind, once a party
enters the Labour Court, there exist a labour matter and section
162
applies on the question of costs.
Applying
the Long decision to this matter
[5]
On 19 February 2019, the applicant launched an interdict owing to the
unlawful conducts of the second to further respondents of blocking
access to the premises of the applicant; interfering with the
passage
of vehicles; harassing, intimidating and assaulting non-strikers,
employees and pupils and damaging property. I pause to
mention that
this interdict may have been sought in the High Court. Its
jurisdiction is not ousted in my view. On 20 February 2019,
this
court, per my brother Van Niekerk J issued an interim order. In the
interim order, the respondents were to show cause why
they should not
be ordered to pay the costs of the proceedings. The interim order was
returnable on 5 March 2019. Meanwhile, on
8 October 2018, the
respondents had referred a dispute of mutual interest to the
bargaining council.
[6]
On 27 February 2019, whilst the interim order was in place, the first
respondent and the second applicant entered into a settlement
agreement in order to resolve the dispute of mutual interest. I pause
to mention that the first applicant was not party to the dispute
referred and the settlement agreement. In the settlement agreement,
the relevant parties agreed that the agreement was in full and final
settlement of the dispute referred to the bargaining council
(matter
of mutual interest) as well as matters that were not part of the main
dispute. The main dispute is the matter of mutual
interest. It is not
clear as to what is meant by “matters that were not part”.
However, at that time, the second applicant
was a party, together
with the first respondent, to a litigation in this court.
[7]
It must then follow axiomatically that the second applicant and the
first
respondent must have been referring to this litigation.
Relevant to this judgment, the first respondent was required on the
return
day to show cause why it should not pay the costs of the
proceedings. In my view, Advocate Burton, appearing for the
respondents,
was correct when he submitted that the dispute of costs
was also settled on 27 February 2019. I am unable to agree with
Advocate
Voultsos, when he submitted that the dispute emanating from
the litigation, inclusive of the costs issue was not resolved.
Strange
enough, Advocate Voultsos submitted that the interim order
must be discharged. If the interim order is discharged, the issue of
costs, which was only to show cause why the respondents should not
pay the costs, should also be discharged.
[8]
I shall move from the premise that the applicant’s counsel
meant
a discharge of paragraphs 2.1 – 2.6 of the order made on
that day. Of course, there was no interim order on the issue of
costs. All the respondents were to show on the return day was why
should they not be ordered to pay the costs of the proceedings.
The
cause the first respondent shows is that the costs issue has become
settled. Therefore, by ordering the first respondent to
pay the
costs, this court would be going behind the settlement agreement of
the parties. Accordingly, in my view, the first respondent
may not be
ordered to pay the costs of the second applicant.
[9]
What then remains is the costs as between the first applicant and the
first respondent as well as the second to further respondents. The
first applicant is not party to the settlement agreement. In
respect
of it, the respondents are still required to show cause why they
should not pay its costs. Advocate Burton did not advance
any cause
in respect of these remaining parties. I pause to mention that the
respondents did not lead any evidence in these proceedings.
Accordingly, before me, there is no cause shown why the respondents
should not pay the costs of the first applicant.
[10]
Therefore, in considering whether I should make an order as to costs,
I must first establish
whether fairness dictates that I must make an
order. Should fairness so dictate, then I must consider the conduct
of the parties.
With regard to fairness, on 15 February 2019, the
first applicant addressed correspondence to the first respondent
advising it
of the objectionable conduct. The first respondent was
informed that should the objectionable conduct not cease; the first
applicant
would have no option but to approach this court. The letter
does not state that a costs order shall be sought. Nothing really
turns
on this. On the same day, the first respondent replied to the
letter and effectively said nothing that would have obviated the
application to this court. Under those circumstances, the only
available option was to approach this court. The LAC in
Dorkin
acknowledged that what is required is the striking of a balance,
a task which is not easy to do. In this matter, fairness dictates
that an order of costs must be considered in respect of the first
applicant and the first respondent. However, the enquiry does
not end
there. I am obliged to consider the conduct of the parties in
specific terms - in defending the matter before court
and
during the proceedings. On 20 February 2019, the respondents filed a
notice indicating their intention to oppose the matter.
A notice of
intention to oppose is what it is, it is not an opposition of the
matter. Since there was no opposing affidavit filed,
in my view, the
respondents did not oppose the matter. Since there is no opposition,
I am unable to assess any conduct in opposing
the proceedings. This
matter remains unopposed despite a clear intention to do so.
[11]
On the return day, which would constitute the part of during the
proceedings, counsel for
the respondents did not seek to waste the
court’s time. His submissions were crisp and to the point. Such
a conduct is commendable
and cannot be an objectionable conduct that
could drive the court to making an order as to costs. On 4 March
2019, the first respondent
filed a notice disclosing the settlement
agreement between the parties. Similarly, on the same date, the first
applicant, through
Vukile Hewana, led further evidence indicating
that oral submissions would be made at the hearing of the matter.
This, in my view,
prompted the respondents to engage counsel in order
to make counter oral submissions. Therefore, the appearance of
counsel was
necessitated by the evidence of Hewana. Such on its own
is not an objectionable conduct.
[12]
No other objectionable conduct was demonstrated to me during these
proceedings, which would
have prompted me to make an order as to
costs. In the absence of objectionable conduct there is no reason why
I should mulct the
respondents with costs. I do not find any reason
to follow my sister Prinsloo J in the matter referred to above. In
any event,
the facts are distinguishable. The Constitutional Court in
Long
decreed that the Labour Court must stipulate the reasons
why an order of costs is made. In
casu
, I find none to
stipulate.
[13]
For all the above reasons, I accordingly make the following order:
Order
1.
The interim order is discharged.
2.
There is no order as to costs.
_______________________
GN Moshoana
Judge
of the Labour Court of South Africa
Appearances:
For the
Applicants:
Advocate L Voultsos
Instructed
by:
Joubert Galpin Searle, Port Elizabeth.
For the
Respondents: Advocate
C Burton
Instructed
by:
Wikus Van Rensburg Attorneys, Port Elizabeth.
[1]
[27] It is well accepted that in
labour
matters
,
the general principle that costs follow the results does not apply…
[29] It is clear that when making an adverse costs
order in a labour
matter, a presiding officer is required to consider the principle
of
fairness and have due regard to the conduct of the parties.
Long
v SAB (Pty) Ltd and others (CCT61/18)
[2019] ZACC 7
(19 February
2019).
[2]
[2014] 5 BLLR 491 (LC)
[3]
City of Cape Town v SAMWU (C429/2007) [2008] ZALCCT 12 (19 March
2008) at para 20
[4]
[2008] 6 BLLR 540
(LAC)