About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2020
>>
[2020] ZALCJHB 80
|
|
SASBO - The Finance Union v Duma (J2548/2015; D1154/2015) [2020] ZALCJHB 80 (25 May 2020)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not reportable
Case No: J 2548/2015
D 1154/2015
In
the matter between:
SASBO-THE
FINANCE
UNION Applicant
and
DUMA,
CN First
Respondent
ENROLLED: 05 May 2020,
in view of the measures implemented as a result of the Covit-19
outbreak this matter was decided on papers.
DELIVERED:
This judgment was handed down electronically by circulation to the
parties representatives by email and release to SAFLII.
The date and
time for hand-down is deemed to be 14h00 on 25 May 2020.
Summary:
interlocutory application- whether it is reasonable and justifiable
to debar the respondent from
pursuing his rescission application -
payment of the security for costs in the labour court
JUDGMENT
MABASO,
AJ
Introduction
[1]
This is an interlocutory application whereby the applicant seeks an
order that the
respondent should provide security for its costs in
pursuing the rescission application that he has delivered against the
order
of this Court, whereby the review application of the respondent
previously delivered was dismissed due to the delay in its
prosecution
and costs thereof.
[2]
The question to be answered in this judgement is whether or not it
will be reasonable
and justifiable to debar the respondent from
pursuing his rescission application until he pays the applicant’s
security for
costs?
Background
[3]
In December 2016, the Applicant launched an application to dismiss
the review application
that had been lodged by the respondent the
previous year. Its application was granted in February 2018 in the
absence of the respondent.
The former then proceeded to prepare the
bill of costs, which was then taxed at the amount of R203 901.58.
[4]
The respondent became aware of the default judgement on 27 October
2018, and as a
result proceeded to launch the rescission application,
however he “
filed
”
it on 19 November 2018 and the applicant contends that the rescission
application was filed late. The applicant’s
attorneys
thereafter dispatched a letter to the respondent advising him of
their concern that the rescission application was out
of time,
therefore, encouraged him to bring a condonation application.
[5]
In summary, the applicant avers that the application is not properly
submitted before
court because the rescission application was only
initiated once the taxed bill was served on the respondent and there
are poor
prospects of success. It further alleges that it will not be
able to recover costs from the respondent incurred in preparation for
the rescission which include, among other things, drafting of an
answering affidavit and the preparations thereatfer.
[6]
The respondent delivered an answering affidavit, out of time, and in
turn, the applicant
objects to same, and there is no condonation
application that was delivered by the respondent thereafter. Under
the circumstances,
the answering affidavit was disregarded. The
applicant further states that the last known financial status of the
applicant was
that he was not the man of straw.
[7]
The procedure in launching this application is governed by Uniform
Rule 47. A litigant
may claim security for costs, for instance where
a statute provides so, and /or the main application is reckless,
vexatious, and
is an abuse of the process of the Court
.
[8]
This court will use its discretion to order provision for security
for costs, if the
applicant has successfully pursued its case that
security for costs should be paid.
[9]
The general rule is that all citizens of the Republic of South Africa
have a right
to approach a court of law and cannot be compelled to
provide security for costs. This is on par with section 34 of the
Constitution
of the Republic of South Africa
[1]
(the Constitution), which specifically provides that everyone has the
right to have any dispute that can be resolved in a fair
public
hearing before a Court. However, this right is not open-ended as it
can be limited in terms of section 36 of the Constitution.
Meaning, a
party who seeks security for costs has to show that it is reasonable
and justifiable to do so.
In
casu
,
the applicant has failed to show reasons to believe that it will not
recover costs from the respondent, should such costs be ordered
against the latter, as in its papers confirm the last known fair
financial status of the respondent.
[10]
If this Court is satisfied that the rescission is vexatious or
amounts to abuse of the court
processes; it may order security for
costs but has to be guided
inter
alia
by
the provisions of section 162 of the Labour Relations Act
[2]
(LRA). The court in
Fisheries
Development Corporation of SA Ltd v Jorgensen and Another; Fisheries
Development Corporation of SA Ltd v AWJ Investments
(Pty) Ltd and
Others
[3]
,
explained the term vexatious thus:
“
In its legal sense
vexatious means:
“
frivolous,
improper:
instituted without sufficient ground
, to serve
solely as an annoyance to the defendant.
Vexatious
proceeding
also not doubt
proceedings which, although properly instituted,
continued with the sole purpose of causing annoyance to the
defendant
, abuse connotes
a mis-use, improper use, a use mala
fide, a use for an ulterior motive
”
[11]
The applicant, in its supporting affidavit, states that the
respondent has no prospects of success,
however, it did not advance
reasons for that statement, and has not attached the answering
affidavit to the rescission application
which has been brought by the
respondent. The case of Supreme Court of Appeal (SCA), in
Zietsman
v Electronic Media Network Ltd and Another
[4]
,
applies in an application of this nature. A Court is not expected to
resolve the dispute in the main application as the SCA held
that it
will depend on each and every case and also pointed out that the
extent to which it is practicable to make an assessment
of the
parties, and prospects of success will depend on the nature of the
dispute in each case.
[12]
I am of the view that if all the papers were
properly placed before me, I would to be in a better
position to
assess the lack of prospects as alleged by the applicant. Therefore,
since they are not before me, I cannot rule in
favour of the
applicant.
[13]
On the point that the rescission application was delivered out of
time, there are number of factors
herein that have to be taken into
account, considering that this Court has an inherent power to protect
and regulate its own process,
and to develop the common law taking
into account the interests of justice,
[5]
inter
alia
that whether the respondent is represented or not, that this Court is
a court of equity
[6]
, that in
the majority of matters before this Court parties are unrepresented.
Sometimes, as a presiding officer, one comes across
applications
whereby they were delivered out of time. The question is, will it be
reasonable and justifiable in an open and democratic
society wherein
such applications security for costs is ordered.
[14]
My view is thus based on the facts of this matter. It cannot be in
the interest of justice to
make an order that the respondent pay
security for costs for a reason that the rescission application was
delivered late. Making
such an order means a party would not be in a
position to pursue their case until the security for costs is paid,
because, if at
a later stage a condonation application is delivered
they will still be debarred from pursuing the case until money is
paid. Meaning,
the majority of the citizens will not have access to
the Labour Court.
[7]
[15]
The Court that will be dealing with the rescission application,
should it be set down without
a condonation application being
delivered and /or delivered but has no merits, will be in a position
to make an appropriate order
being guided by the provisions of
section 162 (1) read with (2) (b) (i) or (ii) of the LRA.
[16]
In respect of costs, as this Court has not taken into account the
answering affidavit since it
was filed out of time, I regard the
matter as unopposed. Therefore, no costs order should follow.
[17]
Therefore the following order is made:
Order
:
1.
The application for security for costs is hereby dismissed, with no
costs order.
_______________________
S Mabaso
Acting
Judge of the Labour Court of South Africa
Appearances:
For the Applicants:
In chambers
Instructed
by:
BJ Erasmus Pieterse Attorneys
For the Respondent: In
person
Instructed
by:
[1]
Act
108 of 1996.
[2]
No.
66 of 1995, as amended.
[3]
1980
(4) SA 156 (W).
[4]
[2011]
ZASCA 169
(29 September 2011)
[5]
Section
173 of the Constiturion
[6]
Section
151 (1) of the LRA
[7]
Section
34 of the Constitution.