OF INTEREST
IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT PORT ELIZABETH
CASE NO: P 805/01
DATE OF HEARING: 21/08/2002
DATE OF JUDGMENT: 21/08/2002
In the matter between
AKHONA NTLOKO Applicant
and
COMMISSION FOR CONCILIATION,
MEDIATION AND ARBITRATION First Respondent
TELKOM SA Second Respondent
VUYANI KLAAS N O Third Respondent
D WILLIAMS Fourth Respondent
J U D G M E N T
PILLAY, J
[1] This is an application to review and set aside the decision of
the first respondent commissioner who refused to condone a late
referral of a dispute for a conciliation.
[2] The pleadings before me run into about a 155 pages and lengthy
heads of argument were submitted on almost every possible point
that could have been taken.
[3] This matter was set down for hearing yesterday. The
representatives attended court but there was no electricity. The
Court used the opportunity to point out certain difficulties it had
with the applicant's case and raised at least three issues which it
asked Gqamana, who appeared for the applicant, to consider. The
court encouraged Mr Gqamana and Mr Ngaga, who appeared for
Telkom, the second respondent, to explore the possibilities of
settling the matter. The settlement negotiations failed and hence
this matter is before me today. The matter is opposed on almost
every issue that was pleaded and raised in the heads of argument,
with further argument being prepared on the issue of costs. It
became clear as the court questioned Mr Gqamana about all the
issues that it had raised with him the day before, that there was no
possible defence that the applicant could raise on the prospects of
success on the merits. This concession was made only today
despite the fact that it was raised yesterday with Mr Gqamana.
[4] The concession arises because the applicant made two
statements, one to the police the other to his employers. The
statement to the police, he alleged, was made under duress. Mr
Gqamana was asked to consider yesterday whether he, as an
officer of the court, could seriously suggest that that
statement was made under duress. This morning, after much
prodding, he conceded that that conclusion could not reasonably
be made, but that those were his instructions.
[5] He was given time to consider and compare both statements
and, following that, he conceded that there is a common thread
between
both statements, namely an admission that the applicant had
made an illegal connection of a telephone for which he was
illegally rewarded by a member of the public which was
indisputable on his own version.
[6] That led to the concession that, on the substance, the prospects of
success at arbitration were non-existent. Then Mr Gqamana
submitted that there were prospects of success on procedure. I
indicated to Mr Gqamana that for the sake of argument if one were
to accept that there were prospects of success on procedural
grounds, could he, on any basis, submit that an arbitrator would
reasonably exercise his or her discretion to award compensation in
the circumstances. The circumstances that I referred to were that
the applicant had defrauded a public entity and took money from a
member of the public. No commissioner, in my view, could
reasonably award compensation in those circumstances. That
concession was also made eventually during the hearing today.
[7] The next issue then was the question of costs. Mr Gqamana
submitted that there should be no order of costs against the
applicant's attorney and that he should instead be barred from
obtaining any remuneration from the applicant for this case. His
further submission was that it would not be permissible for
thecourt to make any order of costs against the applicant and the
attorney jointly and severally upon a reading of section 162 of the
Labour Relations Act No.66 of 1995 (“LRA”) and the relevant
authorities. I disagreed with these submissions.
[8] Inasmuch as the applicant failed in this review and the usual
consequence of that is that he should pay the costs, as a member
of the public and the user of professional services, he is entitled to
some protection from the court against those who profess to
provide those services efficiently. As this court is the body that
ensures fairness to litigants, it must do so with due regard to the
interests of both parties. In this case the court observes that at
least in three respects the applicant’s attorney misled the
applicant or conducted himself without due diligence or regard for
his duties as an attorney.
[9] The first indication of this is in the order prayed. The
applicant
seeks an order reinstating him to his previous employment with
Telkom. That is not relief competent in an application to review a
ruling. An attorney exercising reasonable care ought to have
known that.
[10] The second is that the applicant repeats at several places in
the
pleadings that he is not a lawyer but a lay-person and
therefore
was dependent on the advice of his attorney. There are
submissions, it was conceded, that could only have emanated from
the attorney, not from the applicant. The attorney’s advice and
opinion does not manifest the degree of care that can reasonably
be expected of a professional.
[11] Thirdly, the attorney made several typographical errors which he
attempted to correct by filing a notice of amendment. I accept
without hesitation that English may not be his first language.
However, if he wanted to correct the papers, then he should have
done so at his own cost and his own convenience, not at the
inconvenience of the court, the other side or the applicant. What
he should have done was to have filed amended pages so that the
court did not waste its time going through all the amendments to
effect the corrections. The papers, to say the least, were very
difficult to read in parts because the grammar was hard to follow. I
do not hold that against the attorney. However, the fact that he
failed to complete the corrections, is the reason for this reproach.
Those are at least the three grounds on which the attorney per se
is responsible for the poor state of this case.
[12] The applicant himself is also not free of blame for it is he
who
believed that he had an arguable case. It is he who knew
whether
he had committed a wrong or not. It is he who made two
statements which contradicted each other, one of which, he had
falsely submitted, was made under duress. There may be other
reasons for holding the applicant responsible for the state of these
papers and the allegations made. He therefore cannot escape
liability himself
for the outcome of this decision.
[13] Insofar as this court has authority to make an order of costs de
bonis propriis, jointly and severally against the applicant and his
attorneys, the relevant provisions of the Act provide as follows in
section 162 of the LRA:
"1. The Labour Court may make an order for
the payment of costs according to the
requirements of law and fairness."
…..
3. The Labour Court may order costs against a
party to the dispute or against any person
who represented that party in those pro-
ceedings before the court."
[14] In CHEMICAL WORKERS INDUSTRIAL UNION & ANOTHER v RYAN &
OTHERS, an unreported case, Labour Court Case No. D335/99,
which is cited in Practice in the Labour Court by Landman and Van
Niekerk, this court held that attorneys may be held jointly liable for
the other party’s costs of opposing an application. As a matter of
logic and interpretation of provisions of section 162(3), if an order
for costs can be made against a party or a person who represented
that party, there appears to be no reason why such an order
cannot be made against both a party and their representative
jointly and severally.
[15] In those circumstances, the order I make is as follows:
1. The application for review is dismissed.
2. The applicant's attorney is denied all his costs
otherwise payable by his client.
3. The applicant's attorney is ordered to refund any
such costs received to the applicant forthwith.
4. The applicant and his attorney are each ordered
to
pay 50% of the respondent's taxed or agreed
costs.
5. Neither party may claim any costs for the
proceedings
of 20 August 2002 when there was no electricity in court.
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D PILLAY
JUDGE OF THE LABOUR COURT
REPRESENTATIVES
For the Applicant : Advocate N.W. Gqamana
Instructed by : Sipho Ntloko and Co.
For the Second Respondent: Solomon Ngaga
(Labour Relations Officer of Telkom)