8473 Investment Holdings CC v Transport, Retail and General Workers Union and Others (D694/23) [2024] ZALCD 10 (29 February 2024)

THE LABOUR COURT OF SOUTH AFRICA, DURBAN

Not Reportable

Case no: D694/23

8473 INVESTMENT HOLDINGS CC

T/A EXSQUIZIT SOLUTIONS

Applicant

and

TRANSPORT, RETAIL AND GENERAL

WORKERS UNION

1st Respondent

COMMISSION FOR CONCILATION

MEDIATION AND ARBITRATION

2nd Respondent

COMMISSIONER RAJ SHANKER N.O.

3rd Respondent

SASOL (PTY) LIMITED

4th Respondent

ENGEN REFINERY (PTY) LIMITED

5th Respondent

Heard: 09 February 2024

Delivered: 29 February 2024

This judgment was handed down electronically by consent of the parties’ legal representatives by circulation to them via email. The date for hand-down is deemed to be 29 February.

JUDGMENT

MOKOSE, AJ

[1] This matter was before this court on 24 November 2023 wherein a rule nisi was granted calling on the first respondent to show cause on 9 February 2024, if any, why a final order should not be granted on

the following terms:

(i) the picketing rules issued by the third respondent on 16 August 2023 be suspended pending the finalisation of the referral to the second and third respondents regarding the application of the picketing rules;

(ii) the first respondent is interdicted and restrained from causing any damage to the motor vehicles belonging to the applicant, preventing non-striking workers of the applicant and workers of the fourth respondent from entering and exiting the refinery, picketing on a public road, its members blocking the refinery gates, forcefully trying to gain entry into the refinery and intimidating and/or threatening the non-striking employees of the applicant with violence.

[2] Furthermore, the applicant sought an order for costs on an attorney and own client scale.

[3] After the interim order was granted, the applicant instituted disciplinary proceedings against all the striking employees who were subsequently found guilty and dismissed. Counsel for the parties agreed that the application had become moot as there were no longer any employees for whom the picketing rules were made and could not be operational indefinitely. The parties then argued before the Court on the question of costs.

[4] It is noted that the order granted by Govender AJ on 24 November 2023 reads as follows pertaining to the costs:

“3.3 Costs to be determined on the return date.”

[5] In terms of the Notice of Motion, the applicant sought costs to be ordered in its favour on the scale as between attorney and own client. The applicant contends that it approached this Court as it did, as it had no alternative remedy.

[6] The respondent, on the other hand, contends that the applicant instituted a self-created urgency and then failed to discharge the onus it bore to obtain the order granted by the court.

[7] I will not entertain the issue of the urgency of the matter as it has already been dealt with by the Court in the application for the interim order. I will merely deal with the order of costs sought by the applicant and ordered by the court when granting the interim order.

[8] The general rule in litigation pertaining to an award of costs is that costs should follow the result. However, this does not find application in labour disputes due to the power imbalance between an employer and an employee. This court has a wide discretion in respect of the award of costs, considering fairness and the principles of law and further considering the power relationship between the employer and employee.[1] This principle was confirmed in the matter of Zungu v Premier of KZN and Others[2] where the Constitutional Court stressed that the court should seek a balance between unduly discouraging litigants from approaching the Labour Court to have their disputes dealt with and allowing those litigants to bring their matters to the court which should not have been brought in the first place. The court is obliged to strike a balance considering the requirements of fairness and the law. In so doing, the court must exercise a discretion and should exercise such discretion judiciously.[3]

[9] Whilst the general purpose of a costs award is to indemnify the successful party for the expenses, he or she may have been put through some sort of hardship by being compelled to either initiate or defend the litigation, I am obliged to consider and determine whether an award for costs in favour of one or the other party in the matter should be granted costs. Whilst the applicant in the matter in casu may have been put through the litigation, I do not deem it appropriate to grant costs in its favour merely to be indemnified of the costs it expended in instituting the application. I also note that the respondents were disciplined and duly dismissed.

Some would probably not have obtained employment at this stage and would accordingly not be able to make good on an order granted

against them in respect of the costs. It would not be fair in the circumstances to grant costs in favour of the applicant having considered the requirement of fairness and the law.

[10] Accordingly, the following order is granted:

No order is made as to costs.

SNI MOKOSE AJ

Judge of the Labour Court

Of South Africa.

Appearances:

Applicant:

Adv T Moretlwe on instructions of KNT Inc

Respondent:

Ms S Njambatwa on instructions of JT Inc

[1] Union for Police Security and Corrections Organisation v South African Custodial management (Pty) Ltd [2021] ZACC 41

[2] 2018 ZACC 1

[3][3] Trencon Construction (Pty) Limited v Industrial Development Corporation of South Africa Limited and Another [2015] ZACC 22 at para 85