IN THE LABOUR COURT OF SOUTH AFRICA
(HELD AT CAPE TOWN)
NOT REPORTABLE
CASE NO: C04/2024 / C252/2024
In the matter between:
PAUL DUVERGE Applicant
and
SPANISH FARM GUEST LODGE CC First Respondent
t/a SKY VILLA BOUTIQUE HOTEL
SKY VILLA (PTY) LTD Second Respondent
Date heard: 13 April 2026
Judgment delivered: 15 April 2025
Summary: Costs ~ a matter of judicial discretion, to be determined by reference
to all the relevant circumstances ~ considering inter alia the criteria of law and
fairness ~ ordered the respondent to bear fifty percent of the applicant’s costs.
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JUDGMENT
DANIELS J
Introduction
1. The applicant came to this Court alleging that his retrenchment was
unfair, in substance and in procedure. After a lengthy trial, the Court
found his dismissal by the second respondent unfair in both respects .
Compensation of eight months’ pay was granted, but costs were
reserved. That question was argued on 13 April 2026. This judgment
answers only that.
Submissions
2. Mr Bosch, for the applicant, stated that Legal Wise would cover half his
client’s costs. The rest fell on the applicant —a layperson, with no union
to lean on, and a family to feed. He had no ongoing relationship with the
respondent. To deny the applicant costs, Mr B osch argued, would shut
the door to those who come to court in good faith but do so alone.
3. Mr Whittaker, for the second respondent, replied that the applicant had
already won much. R espondent’s defence was bona fide, not frivolous.
The applicant found alternative employment soon after his dismissal,
albeit at lower remuneration. According to the respondent, the applicant
had enjoyed a discount on a property and R45 000 in rental payments.
The respondent had paid for a trial transcript during a long hiatus in the
trial. Further, the applicant chose this Court over arbitration, a choice that
must count.
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Legal principles and analysis
4. In De Lacy 1 the Constitutional Court noted that , in respect of costs , all
the circumstances must be considered. C osts lie with in the discretion of
the court, but such discretion must be exercised justly and equitably.
Section 162 of the Labour Relations Act No. 66 of 1995 (the LRA)
echoes that: costs must follow the law and fairness.
5. In Zungu2 the Constitutional Court endorsed the Dorkin3 dictum that
costs do not simply follow the result in this court. Instead, the rule is that
there is no order of costs unless law and fairness demand it. The Court
must walk a narrow path — not discouraging claims but not encouraging
frivolous ones either.
6. In Bester4 the Labour Appeal Court added: when an individual carries
her own case, without a union, fairness looks to her burden—her purse,
her the needs of her family , and her solitude. This is consistent with the
requirement of fairness.
7. Here, the applicant bore half the costs himself. The trial was lengthy and
the costs likely significant. Mr Whittaker did not argue that the applicant
should have represented himself . While it is correct, as Mr Whittaker
submitted, that the applicant found re -employment soon after dismissal,
his remuneration in the new position were diminished. That was common
cause.
8. While it is correct that the second respondent presented its case in a
professional manner, professionalism is the duty of every litigant and
legal practitioner. The applicant’s team was equally professional.
1 De Lacy and Another v South African Post Office (CCT 24/10) [2011] ZACC 17; 2011 (9)
BCLR 905 (CC) (24 May 2011)
2 Zungu v Premier of the Province of KwaZulu-Natal [2018] ZACC 1; (2018) 39 ILJ 523 (CC);
[2018] (6) BCLR 686 (CC) at para 24
3 Member of the Executive Council for Finance, KwaZulu-Natal v Wentworth Dorkin N.O. [2007]
ZALAC 41 (Dorkin) at para 19
4 Bester (Scott) In re: Small Enterprise Finance Agency SOC Ltd v CCMA and Others
4 Bester (Scott) In re: Small Enterprise Finance Agency SOC Ltd v CCMA and Others
(JA41/2018) [2019] ZALAC 73; [2020] 3 BLLR 244 (LAC); (2020) 41 ILJ 877 (LAC) (11
December 2019)
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9. It is significant that the applicant won at trial and won on every point. The
discount claimed by the respondent and rental payments were not
proven and therefore irrelevant.
10. Compensation was granted to the applicant for his wounded dignity and
the infringement of his rights. To set costs against such compensation
would hollow out his victory - and discourage other individuals from
seeking relief from the Court . I therefore accept that fear of legal costs
chills the right of access to court. Both Zungu and Bester warn of this. A
winner who pays (costs) effectively still loses.
11. It is true that the applicant could have chosen arbitration – the LRA
permits it. Yet arbitration would have brought less finality. Further more,
this dispute was no simple matter. It warranted judicial scrutiny . On
balance, the election to approach the C ourt was reasonable and should
not be held against the applicant.
12. In the result, fairness and law dictates that the respondent must bear the
costs but not that which Legal Wise already covers . Fairness also
demands that the applicant bear the costs of any monies paid by the
respondent to secure transcripts of the evidence at trial and/or the
consultation process.
Court Order
13. Following careful consideration, I make the following order:
1. For the costs of the trial, subject to para two, the second
respondent is to pay 50% of the applicant’s taxed costs.
2. The costs of all the transcriptions used in the trial, which were paid
for by the second respondent, must be deducted from the taxed
costs,
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3. The second respondent shall pay the full taxed costs of this
hearing on costs.
Reynaud Daniels
Judge of the Labour Court of South Africa
For the Applicant:
Adv Craig Bosch
Instructed by: Africa & Associates
For the Respondent:
Adv Joseph Whitaker
Instructed by: Werksmans Attorneys