IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT DURBAN REPORTABLE
CASE NO: D178/2000
Date heard: 28/02/03
Date delivered: 5/03/03
In the matter between:
THEMBEKLIE ELSIE SIBISI APPLICANT
and
SARASWATHEE GANPATH RESPONDENT
J U D G M E N T
PILLAY, J
1. This is a review of a taxation. The taxing officer refused to allow the
applicant’s attorney, Mr Jafta, fees as if he were an advocate, for
appearing in the Labour Court in an opposed application.
2. The taxing officer allowed a fee of R100,00 per fifteen minutes. As the
hearing, in her view, did not last more than five minutes, he was not
entitled to more than R100,00.
3. If he wanted to be paid as an advocate then he should have obtained a
special order for costs from the Court, she maintained.
4. She further submitted that although the Labour Court is of equal standing
with the High Courts, the practice regarding rights of appearance differed.
The difference was that in most cases the litigant can represent itself or be
represented by an attorney. The fees of counsel should be allowed only in
trial or complicated opposed matters. The “going rate”, she submitted, for
opposed matters was hardly as much as R3000, 00, the lowest amount
recommended for opposed motions in the Guideline for Taxation of Junior
Counsel’s fees (Natal Bar) [“the Guideline”].
5. Mr Jafta objected firstly to the conduct of the taxing officer during the
taxation. He denied that he was given a fair hearing. I do not intend to
traverse this route as the review of a taxation is wider than the common
law grounds of review. I am entitled to set aside any decision of the taxing
officer even if she had exercised her discretion properly. (Erasmus:
Superior Court Practice B1349)
6. Secondly, he contended that he should be allowed to charge on the same
basis as junior counsel would for appearing in the High Court in an
opposed motion.
7. Thirdly, he maintained that the matter was sufficiently complex that a fee
of at least R3000,00 should be allowed for the appearance. He had asked
for R5000,00 in the bill of costs.
8. He relied on the matter of B Neethling and N Parmee v Peach & Hatton
Heritage (Pty) Ltd unreported Case No D 623/98 and D717/98 (per
Ncgamu AJ) at the taxation and in this review.
9. I have been referred to the judgments of my learned brothers in Darrien
Ivan Stubbs v Johnson Brothers Properties CC and 2 Others (case No
2817197955/2000) reported at
http://www.derebus.org.za.archives/2001feb/new/magidspeech.htm (per
Magid J) and Neethling ( supra). I have also had the benefit of the
judgment of Blieden J, (Cachalia AJ and Jordaan AJ concurring) in Road
Accident Fund v Le Roux 2002 (1) SA 751 (W).
10. Citing with approval the decision of Van Dijkorst J in Promine Agentskap
en Konsultante Bk (At) v Du Plessis en ’n Ander (TPD unreported case No
20028/69), Magid J agreed that
“the proper approach to the taxation of the fees of an attorney with
right of appearance is to assess those fees by reference to what
would have been allowed to an advocate under similar
circumstances”.
11. Underpinning this view were the absurdities that arose upon an analysis of
the subrules of Rule 69 of the Uniform Rules of Court when applied to
attorneys as directed in terms of Rule 70.
12. For different reasons Ngcamu AJ also refused to distinguish between the
fees allowable to advocates and attorneys who appear in the Labour
Court. He reasoned as follows at paragraph 5 of the judgment:
“The Labour Court is equal to the High Court in status.
Accordingly the fees are assessed using the High Court tariff. The
High Court tariff does not provide fees of the appearance by an
attorney. If this Court has the same status as the High Court, I
cannot see any reason for not granting the attorneys appearing
fees equal to those of junior counsel. There should not be any
difference between an attorney who has the right of appearance in
terms of Act 62 of 1995 and the one who does not. In my view,
there is no reason for making such differentiation. This is so
because the Labour Relations Act does not make that difference.
To me, it does not make sense to allow the attorneys to appear in
this Court but disallow them fees for such appearance on the
basis that they are not advocates or do not have the Right of
Appearance in terms of Act 62 of 1995. If there should be such a
difference, the Rules Board should make this clear. I however
conclude that the attorney appearing in the Labour Court is
entitled to fees equal to that of a junior counsel.” ( sic)
13. The full Bench in Road Accident Fund above is critical of the “gloss” that
the generalisation of Magid J puts over the judgment of Van Dijkorst. The
learned judges in Road Accident Fund clarified the matter which I
summarise thus : An attorney who is acting as counsel is entitled to a
reasonable fee provided that she or he in fact did the work and can satisfy
the Taxing Master of this fact. Nevertheless, a distinction must be drawn
between the trial fee which an attorney may charge where the trial is
settled before the trial date and the fee which counsel may charge in that
respect because of the difference in nature of the practice of an attorney
as opposed to that of an advocate. The structure of the advocate's
profession is such that the settlement of a trial and the loss of a firstday
trial prejudices counsel who runs a real risk of not being compensated for
reserving a day for trial. An attorney, on the other hand, can do other
lucrative work in the time set aside for the first day of the hearing. It would
be discrimination to disallow an attorney who appears in the High Court
fees on the same basis as an advocate for actual work done.
14. I respectfully agree that there is no rational basis to distinguish between
the fees allowable to an attorney and advocate for the same work actually
done in labour matters. Constitutionally speaking, it could be unfairly
discriminatory.
15. Whenever the Rules of the Labour Court do not provide for a situation, the
Labour Court, in the exercise of its discretion in terms of Rule 11(3) of the
Rules of the Labour Court, has relied upon the Uniform Rules of Court
(Van Rooy v Nedcor Bank Ltd (1998) 3 LLD 376 (LC); Botha v Gensec
Asset Management (Pty) Ltd (2000) 21 ILJ 1999 (LC); Maharaj v Bartel
Kabel Werke (Pty) Ltd (2000) 21 ILJ 2269 (LC); Mafuyeka v Commission
For Conciliation, Mediation & Arbitration & Others (1999) 20 ILJ 2386
(LC)).
16. There is no tariff promulgated as yet for taxation in the Labour Court. Rule
48 of the Uniform Rules of Court which provides for taxation in the High
Court may therefore be applied. This has been the practice thus far in the
Labour Court.
17. Based on the cases cited and the obvious intention of Rule 70 read with
Rule 69 of the Uniform Rules of Court the taxing officer erred by requiring
the applicant to have first obtained a special order from the Court for Mr
Jafta’s fees to be paid as if he were junior counsel.
18. However, I respectfully differ with my brother Ngcamu AJ in so far as his
opinion might imply that the tariff applicable in the High Court for junior
counsel should automatically apply in the Labour Court. The Guideline
relied on by Mr Jafta is just that : a guideline. It is:
“designed to cater for the majority of matters in which counsel’s
fees require taxation, it is not a scale of minimum and maximum
fees or a tariff. It is not designed to cater for matters which are
extraordinarily simple or extraordinarily complicated and in such
matters a fee which is lower than the minimum fee or higher than
the maximum fee reflected in the guide may be justified.”
19. For opposed applications, it provides a fee on brief and for the first day
(exclusive of heads) between a range of R3000,00 and R7500,00. In
determining a reasonable amount the Guideline suggests that factors such
as the following be considered:
“i. the length of the matter;
ii. the time required to complete the matter and any urgency attaching thereto;
iii. the complexity of the factual and legal issues involved in
the matter.”
20. In Stubb’s ( supra), the criteria were summarised as follows:
“a. the complexity and importance of the case viewed
objectively;
b. the degree of expertise and seniority required of (not possessed by) whomever
appears in the matter;
c. the traditional ways in which advocates charge for their appearances – e.g. fee
on brief, refreshers etc.
d. generally speaking, the value of the work done.”
21. In determining the kind of expertise that is required for a particular dispute
the nature of the dispute needs to be carefully analysed. The expertise
required may be that of a specialist in particular fields of law or generally
as a practitioner. Senior counsel of many years of practice may have less
expertise in labour law than a seasoned trade unionist who recently
qualified as an attorney. To the extent that seniority may determine the
expertise of the practitioner, it would be relevant. Otherwise it is
irrelevant.
22. In my view there are special considerations for determining a reasonable
amount to be allowed as fees in the Labour Court:
23. The legislature intended to provide a less costly means of resolving labour
disputes. This is evidenced firstly from the overarching attempts to
simplify the law and procedures so that they are accessible to lay people.
Secondly, the tariff for the High Court provides inter alia for the payment of
Court fees when proceedings are instituted (Rule 67 of the Uniform Rules
of Court). No fees are charged by the Labour Court when proceedings
are launched.
24. Thirdly, section 213 of the Labour Relations Act 66 of 1995 [LRA] provides
for the less expensive methods of service by registered post, telegram,
telex, telefax or delivery by hand. Rule 4 of the Uniform Rules of Court
require service by the Sheriff. A tariff of fees is prescribed for Sheriffs
(Rule 68 of the Uniform Rules of Court).
25. In deciding on the complexity of a case the following objective factors
apply generally to labour disputes. Unlike the High Courts, the Labour
Court has a limited jurisdiction. Furthermore, over time many
controversies about the interpretation and application of the law and
procedures have been settled through the cases. There is therefore a
substantial degree of predictability and certainty on matters regularly dealt
with in the Labour Court. Such matters are not complex.
26. Conversely, disputes e.g. about mass dismissals and strikes could involve
massive monetary claims and have serious socioeconomic implications.
Certain labour disputes derive their complexity because they involve one
or other constitutionally entrenched fundamental right. Consequently,
even though the quantum of claims may be insignificant, the legal issues
may not be so.
27. The complexity of a case would go to determining the expertise required
of the representative for the particular matter. This approach is objective.
I respectfully agree with the view in Stubb’s ( supra) that actual experience
and the seniority of the practitioner are not appropriate criteria. They are
subjective and irrelevant. If applied, they would lead to significant
disparities amongst those burdened with cost orders as such disparities
would have no relation to the cause giving rise to the orders. Thus if
employers A and B each ignore an application to make an award an order
of court, A might pay higher costs for the appearance if a more senior
practitioner is used by the applicant in the case against him than in the
case against B. The objective approach would standardise the penalty of
costs to prevent some litigants being burdened more than others for the
same transgression.
28. In the Labour Court economic issues are often at the heart of the dispute.
Parties may be unemployed, indigent or struggling small businesses and
trade unions. Legal fees cannot be pitched so high as to exacerbate their
plight or render the Court inaccessible to them. Irrespective of their
economic status, the rate of fees allowed must be standardised for all
litigants. If the standard is set on the basis of what the wealthy can afford,
then the poor would suffer.
29. In this case Mr Jafta stated in the Application for Review of Taxation that
the matter was sufficiently complex to justify the fee claimed in that the
respondent had
“filed an eighteen (18) page opposing Affidavit seeking a two (2)
relief for condonation as well as the dismissal of the applicant’s
claim with costs. The Respondent was raising inter alia a
jurisdictional point as to whether the matter was properly before
the Labour Court or that it is a matter justiciable only by the
CCMA.”(sic)
30. When the Labour Court ruled in favour of having jurisdiction, the
respondent, he submitted, sought a postponement which would have been
refused were it not for a tender of costs.
31. Mr Jafta made no reference in that document to the fact that the main
application was for an order in terms of section 158(1)(c) of the LRA. He
also made a statement there, which he later withdrew, that the respondent
had been represented by senior counsel.
32. However, subsequently when reinstating his application to make the
award an order of court Mr Jafta described the proceedings simply as
follows :
“I confirm that on 15 th October 2002 the employer party applied for
a postponement of the hearing of an application to make an
arbitration award an order of the Labour Court. The said application
was granted and the Labour Court proceedings relating thereto
were stayed pending a finalization of the pending CCMA rescission
application.”
33. In this case the respondent opposed the application to make an award to
the Commission for Conciliation Mediation and Arbitration [CCMA] an
order of Court in terms of section 158(1)(c) of the LRA on the basis that
there was an application pending in the CCMA for rescission. The
rescission application had not been properly made. The Court granted an
application for a postponement against a tender for costs and directed the
respondent to launch a proper rescission application in the CCMA within
ten days. The hearing was brief. There was nothing complex about the
matter at all. There were no material disputes of fact or of law. The Court
grants such orders as a matter of routine. Comparatively, an unopposed
divorce matter would be more complex as it would involve the leading of
oral evidence and a change of status.
34. Any practitioner with a modicum of expertise in labour law would have
predicted this result. Mr Jafta appears regularly in similar matters and
ought to have anticipated this outcome.
35. Mr Jafta persisted that the lowest amount of R3000,00 in the Guideline
should be allowed because firstly, the Labour Court was of the same
status as the High Court. It demanded a similar high standard of care by
practitioners. To award a fee that was less than that stipulated in the
Guideline would imply that the Labour Court was inferior to the High
Courts. Secondly, a lower fee would discourage practitioners from
appearing in the Labour Court.
36. Neither of these submissions are valid considerations when determining
an appropriate fee. A higher fee cannot be allowed out of concern for
diminishing the status of the Labour Court. It seems quite immoral to me
that fees higher than the value of the work done should be extracted from
any litigant, especially the unemployed, indigent, and struggling small
businesses and trade unions, merely to encourage lawyers to do business
in the Labour Court. The “value for money” test which I endorse will not
discourage practitioners from appearing in the Labour Court. In a free
market system, where there is work there will be practitioners to do it.
Practitioners continue to appear in the Magistrates’ Courts despite its
lower tariff.
37. The value of the work involved was hardly R3000,00. After considering
the criteria discussed above the appropriate fee that should be allowed for
the appearance in Court is in my opinion R300,00.
38. It was submitted that as the review sought to establish general principles
of interest to practitioners there should be no order as to costs.
39. Order:
a. The assessment of R100,00 for the appearance in court by the
taxing officer is reviewed and set aside.
b. The applicant is allowed an amount of R300,00 for the appearance
in Court.
c. There is no order as to costs.
PILLAY D, J
APPEARANCES:
For the Applicant: Mr. Jafta
Jafta & Co. Attorneys
For the Respondent: Ms. P. Govender
Pravina Govender Attorneys