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2020
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[2020] ZALCJHB 33
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Minister of Water and Sanitation v Maseko and Others (JR448/17B) [2020] ZALCJHB 33; [2020] 5 BLLR 528 (LC) (14 February 2020)
the
labour court of South Africa, johannesburg
Reportable
case
no: jR448/17B
In
the matter between:
MINISTER
OF WATER AND SANITATION Applicant
and
OLIPA
MASEKO First
Respondent
NEHAWU Second
Respondent
THOMAS
NTIMBANA
N.O.
Third Respondent
COMMISSION FOR
CONCILIATION
MEDIATION AND
ARBITRATION Fourth
Respondent
Heard
:
16 January 2020
Delivered
:
14 February 2020
JUDGMENT ON COSTS
DE
BONIS PROPRIIS
HARDIE,
AJ
[1]
On 29 January 2020, I handed down judgment in which I dismissed the
Applicant’s review
application, and gave the Applicant’s
attorneys, Koikanyang Attorneys 10 court days from that date, to
address me on why
I should not order costs
de bonis propriis
against them. In my judgment, I set out in detail, the serial
negligence on the part of the Applicant’s legal
representatives,
and in paragraph 14 of the judgment, specified the
reasons why I was considering granting costs
de bonis propriis
.
That paragraph reads as follows:-
“
[14]
I am of the view that unless the Applicant’s legal
representatives can persuade me otherwise,
which opportunity I will
give them to do, they did not properly read the legislation relating
to Labour Court reviews, nor the
case law relating to it. Had they
done so, they would have filed the portions of the CCMA record
necessary for this Court to decide
the review. That they didn’t
in the circumstances described above, and particularly in the face of
the defence raised by
the First and Second Respondents, that they
were presenting a different case to this court than that which served
before the Commissioner,
appears to smack of negligence of a serious
degree.”
[2]
It is now apparent that not only did the Applicant’s legal
representatives
not properly read the legislation relating to Labour
Court reviews, nor the case law relating to it, but that they also
did not
deem it necessary to read my judgment before addressing this
court on why costs
de bonis propriis
should not be granted
against them. This is borne out by the fact that in paragraph 3 of an
affidavit that was served and
filed on this issue, and which is
deposed to by Mr Elijah Ramonyai, a director of Koikanyang Attorneys,
he states as follows:-
“
3. This affidavit
is deposed to in compliance with the above Honourable Court’s
judgement of 29 January 2020, especially paragraph
2 thereof. Ms.
Matjeni who attended the noting of the judgement advised me that the
Honourable Judge indicated that the attorneys
must explain why there
was no appearance on the date of hearing of the matter, hence a cost
de bonis propriis
against the attorney.”
[3]
Mr Ramonyai then proceeds to set out the reasons for why the
Applicant and its legal representatives
did not attend the hearing on
16 January 2020. They apparently did not receive the notice of set
down.
[4]
Given the serious consequences for the legal representatives, should
an adverse costs order be granted
against them, I cannot accept that
Mr Ramonyai would simply have relied upon the say- so of Ms Matjeni
before deposing to the affidavit.
And if he did, he was grossly
negligent in doing so. As a result, there is nothing before me, to
persuade me otherwise, not to
grant an order of
cost de bonis
propriis.
[5]
The Applicant’s review application was stillborn and fell to be
dismissed, directly as a result
of the Applicant’s attorneys
having conducted themselves in a seriously negligent manner. Had they
read the legislation relating
to Labour Court reviews, and the case
law relating to it, and taken seriously the First and Second
Respondent’s protestations,
that they had not compiled a
competent review record, their client, the Applicant may have had an
opportunity to successfully review
the arbitration award in question.
In addition, as a result of Applicant’s serious negligence, the
First and Second Respondents
have been put to unnecessary expense in
opposing the review application. Not only was the Applicant done out
of that opportunity
by the Applicant’s attorneys serial
negligence, but the taxpayer has had to fit their bill. The Applicant
should therefore
also give serious consideration to the recovery of
fees and disbursements paid in this matter, to the Applicant’s
attorneys.
[6]
Having dismissed the Applicant’s review application, I
therefore make the following order:
Order
1. Koikanyang
Incorporated is to pay the First and Second Respondent’s legal
costs
de bonis propriis.
2. The Registrar of the
Labour Court is directed to serve a copy of the full judgment on the
Legal Practice Council.
_______________________
S
B Hardie
Acting
Judge of the Labour Court
Appearances:
For the Applicant:
Koikanyang
Inc Attorneys
For
the First and Second Respondents: Advocate M Sekhethela
Instructed
by:
Thaanyane
Attorneys