CASE NO. P671/00
IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT PORT ELIZABETH
DATE 9.11.2000
In the matter between:
DEON MACKAY Applicant
and
MINNAAR NIEHAUS N O First respondent
COMMISSION FOR CONCILIATION, MEDIA-
TION AND ARBITRATION Second respondent
SOUTH AFRICAN POST OFFICE Third respondent
A N D
CASE NO. P672/00
DATE 9.11.2000
In the matter between:
MORNE STARBUCK Applicant
and
MINNAAR NIEHAUS N O First respondent
COMMISSION FOR CONCILIATION, MEDIA-
TION AND ARBITRATION Second respondent
SOUTH AFRICAN POST OFFICE Third respondent
J U D G M E N T
LANDMAN, J:
[1] Two matters were set down for hearing on 8 June 1999
before a senior commissioner of the CCMA. The two
matters involved MACKAY v S A POST OFFICE and STARBUCK
v S A POST OFFICE. The Post Office was not in a posi-
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JUDGMENT 2
tion to proceed despite having had adequate notice and
as a result its representatives tendered the wasted
costs of the applicants for that day, being 8 June 1999, on a
non-litigious scale and the matter was postponed. This order is
recorded in writing by the senior commissioner. As a result, the
attorney representing Mackay and Starbuck, prepared a bill of costs
which was submitted to the CCMA for taxation. The CCMA appointed the
first respondent as its taxing master in terms of the Rules
Regulating the Practice and Procedure for Resolving Disputes through
Conciliation and Arbitration Proceedings, Government Notice R245
of 31 March 2000. These regulations were promulgated by the
governing body of the CCMA in terms of Sec 115(6) of the Labour
Relations Act 66 of 1995.
[2] The first respondent heard argument and expressed the view that
the senior commissioner's letter indicated that payment of wasted
costs was only ordered
in respect of that specific day. As such he was of
the opinion that those items in the bill of costs re-
flecting costs incurred prior to the arbitration day
had to be excluded. In the circumstances he ruled that
items 1 - 4 of the bill of costs had to be excluded.
[3] The applicants were dissatisfied with this ruling and
sought to review the decision of the first respondent
in this Court.
[4] Rule 15(6) of the CCMA provides that:
"Any decision by a taxing master is subject to the
review of the Labour Court on application."
It is quite clear, however, as Mr Laubscher, who
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JUDGMENT 3 appeared on
behalf of the applicants, correctly pointed out, that a subordinate
legislature such as the governing body of the CCMA is unable to confer
jurisdiction on the Labour Court and to empower the
Labour Court to do its bidding. See L.C. Steyn Die uitleg van
Wette 4th edition 233-234.
[5] In the circumstances the present application for review
cannot be founded on Rule 15(6). However, Sec 158(1)(g)
of the Labour Relations Act is applicable and in terms
of that section, this Court may review any function of
the CCMA on grounds permissible at law. This, however,
means that the Court would have to apply the normal
tests which have been found to be applicable in review
situations. It would seem that the reviewing method of a taxation,
as it is commonly handled in terms of the Rules of the High Court, is
not entirely applicable in this particular instance. It appears from
such decisions as WELLWORTHS BAZAARS LTD v CHANDLERS LTD. AND OTHERS
1947 (4) SA 453 (T) that when a superior court reviews a taxation by
a taxing master it will correct the taxing master and substitute its own
opinion for his or her opinion where the matter is one in which the
Court is at least as well able to judge as the taxing master is.
[6] In this case the only question is whether the commis-
sioner misdirected himself or committed a gross irre-
gularity when it came to interpreting the order made by
the senior commissioner. The language used by the senior
commissioner is language which has been used in
courts and tribunals in this country for at least two
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JUDGMENT 4
centuries. It has acquired a well-founded meaning. Wasted
costs are in principle the same as costs of the
day. See CRAIG v KOPERMIJN, LTD. 1926 TPD 63 and 66,
DELFOS AND ATLAS CO-OP (EDMS) BPK v V V BANDE (EDMS)
BPK 1972 (3) SA 907 at 911B-C and MBEKENI v JIKA 1995
(1) SA 423 (TK) at 424. PICKERING, J who delivered the
judgment in MBEKENI's case goes on to say at 424F:
"'Wasted costs' are additional costs in-
curred by a party through the fault of
his opponent or costs previously incurred
which have become useless by reason of
his opponent's fault."
See also the DELFOS case at 910H which says:
"Die algemene reël is dat die verkwiste
koste die ekstra koste is."
[7] It follows in my opinion that the first respondent did
not properly apply his mind to the proper meaning of the term
"wasted costs of the day" and that he commit-ted a gross irregularity
which entitles this Court to intervene in his decision. In the premises
the two
applications under case no. P671/00 and P672/00 must
succeed. The decision made by the first respondent under the
auspices of the CCMA in both matters is
REVIEWED and SET ASIDE. The matters are remitted to the
CCMA to have them taxed afresh and the taxing master,
whoever that may be, is enjoined to have regard to the
proper meaning of the concept of wasted costs as ex-
plained in this judgment and in the decisions to which
I have referred.
[8] The applicants seek costs against the taxing master
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JUDGMENT 5
being the first respondent and the CCMA being the
second respondent. Generally speaking, costs are not
awarded against a public official unless the public
official was mala fide in exercising jurisdiction.
That is not the case here. In the circumstances
there will be NO ORDER for costs.
A A LANDMAN
JUDGE OF THE LABOUR COURT
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