THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case no: 2025-115635
In the matter between:
SAMSON SEFOTLE MODIBA Applicant
and
ROAD ACCIDENT FUND First Respondent
THE ACTING CHIEF EXECUTIVE OFFICER Second Respondent
THE BOARD OF THE ROAD ACCIDENT FUND Third Respondent
Heard: 30 July 2025
Delivered: 30 July 2025
Reasons: 13 August 2025
REASONS FOR ORDER
PHAKEDI, AJ
2
Introduction
[1] On 30 July 2025, this Court removed the urgent application brought by the
applicant from the roll at the instance of the Applicant . Subsequent to hearing both
parties and considering their submissions, the following order was made:
‘1. The application is removed from the roll.
2. There is no order as to costs.’
Brief background facts and parties’ submissions
[2] At the start of proceedings, the Applicant’s counsel indicated that there were
ongoing talks between the parties with the view of settling the matter. However,
Counsel for the respondents indicated that his clients do not have any objection to
the applicant removing the matter from the roll on condition that he tenders the
wasted costs. The matter was stood down until 14h00 to accommodate the
Applicant’s counsel to obtain instructions from his client in respect of tendering the
respondents’ wasted costs. However, despite such a lengthy indulgence, the
applicant could not tender wasted costs , and both parties argued their cases in
respect of costs.
[3] The Applicant submitted that jurisdiction in this matter was brought in terms of
section 77 (3) of the Basic Conditions of Employment (the BCEA)
1 and as an
alternative relief to the breach of contract, he sought an interim
relief in terms of
section 158 (1)(a)(i) of the Labour Relations Act (LRA)2. Applicant’s counsel
submitted that because the Applicant is also relying on the provision of the LRA , the
Court must not award costs against him as it is a court of law and equity.
[4] Section 77(3) of BCEA provides that:
‘The Labour Court has concurrent jurisdiction with the civil courts to hear and
determine any matter concerning a contract of employment, irrespective of
whether any basic condition of employment constitutes a term of that
contract.’
1 Act 75 of 1997.
2 Act 66 of 1995, as amended.
3
[5] The Respondents submitted that they were invited by the Applicant to the
urgent court and they had to employ the services of two counsel , including a Senior
Counsel. They indicated that conciliation took place on 29 July already , and the
applicant had sufficient opportunity to remove the matter from the roll at the earliest
opportunity, but instead opted to file a replying affidavit. It was submitted that the
consequences of a removal from the roll are the same as those arising from the
matter being struck off the roll.
Costs in the Labour Court
[6] Although the applicant invoked the provisions of the BCEA and the LRA, the
matter was not argued on merits but removed from the roll. The Labour Appeal Court
in Passenger Rail Agency of South Africa and Others v Ngoye and Others
3 held that:
‘While there are provisions in the legislation, notably section 77(3), that endow
the Labour Court with authority to adjudicate contractual claims, in my view,
these provisions must be interpreted by having regard to the objectives
sought to be achieved by the labour law dispensation as a whole. I do not
believe that the intention of the legislature in enacting section 77(3) was to
give the Labour Court jurisdiction over disputes that arise from dismissals and
ULPs which should, in the first instance, be categorised as unfair dismissal
disputes or unfair labour practice disputes and dealt with by the CCMA. In
dealing with employment disputes, our first point of reference should be the
constitutional right to fair labour practices, which is given effect in the LRA.’
[7] Costs in the Labour Court are regulated in terms of section 162 (1) of the
LRA, which provides that the Labour Court may make an order for the payment of
costs, according to the requirements of the law and fairness. Since the matter was
not argued on merits but removed from the roll, the C ourt did not award costs. As a
general proposition and considering the dictates of fairness, the Court saw no
general proposition and considering the dictates of fairness, the Court saw no
legitimate reason to depart from the general principle that costs do not follow the
result in employment disputes before the Labour Court.
3 (2024) 45 ILJ 1228 (LAC) at paras 28.
4
[8] The general approach is that the awarding of costs in the Labour Court is
discretionary. It is trite that the Court in exercising its discretionary powers must not
act capriciously, upon wrong principles, in a biased manner, for insubstantial
reasons, or commi t a misdirection, or an irregularity or exercis e its discretion
improperly or unfairly.
4
[9] The Constitutional Court in Booi v Amathole District Municipality and Others
5
dealt with the issue of costs in the Labour Court and held as follows:
‘However, this is a labour matter and this Court’ s jurisprudence is settled: the
ordinary rule that costs follow the result does not apply in labour matters.
Rather, what emerges from the provisions of the LRA and the jurisprudence is
that courts, when awarding costs in labour disputes, must consider what
fairness demands and err on the side of not discouraging parties from
approaching the courts for the peaceful resolution of labour disputes. Further,
if costs are to be awarded in labour matters, there must be reasons that justify
a court’s decision to depart from the position that a losing party should not be
mulcted in costs in labour disputes.’
[10] The above-mentioned principle was clearly espoused in Member of the
Executive Council for Finance, KwaZuluNatal v Dorkin N.O
6, where the Court held:
‘In making decisions on cost orders this Court should seek to strike a fair
balance between, on the one hand, not unduly discouraging workers,
employers, unions and employers’ organisations from approaching the Labour
Court and this Court to have their disputes dealt with, and, on the other,
allowing those parties to bring to the Labour Court and this Court frivolous
cases that should not be brought to court. That is a balance that is not always
easy to strike but, if the court is to err, it should err on the side of not
discouraging parties to approach these courts with their disputes. In that way
discouraging parties to approach these courts with their disputes. In that way
these courts will contribute to those parties not resorting to industrial action on
4 Coates Brothers Ltd v Shanker and Others (2003) 24 ILJ 2284 (LAC) at para 5.
5 (2022) 43 ILJ 91 (CC) at para 60.
6 2008 (29) ILJ 1707 (LAC) at para 19.
5
disputes that should properly be referred to either arbitral bodies for arbitration
or to the courts for adjudication.’
[11] The matter was removed from the roll at the instance of the Applicant , and
either of the parties may still re -enrol it for final determination. For the above
reasons, the order as set out above was issued.
GC Phakedi
Acting Judge of the Labour Court of South Africa.