Employees of Colefax Trading (Pty) Ltd and Others v Colefax Trading (Pty) Ltd (J 146/22) [2023] ZALCJHB 89; (2023) 44 ILJ 1526 (LC) (21 April 2023)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not reportable

Case No: J 146/22

In the matter between:

THE EMPLOYEES OF COLEFAX

TRADING (PTY) LTD

First Applicant

JUSTICE FOR ALL WORKERS OF AFRICA

Second Respondent

KGAKANTSHO BOSHIELO

Third Respondent

and

COLEFAX TRADING (PTY) LTD

Respondent

Delivered: This judgment was handed down electronically by circulation to the parties' legal representatives by email and publication on the

Labour Court’s website. The date and time for hand-down is deemed to be on 21 April 2023

JUDGMENT ON COSTS

TLHOTLHALEMAJE, J

[1] The applicants had on 11 February 2022, obtained a rule nisi returnable on 5 May 2022, in terms of which the respondent was interdicted from proceeding with disciplinary hearings against the employees, on allegations of misconduct for participating in a strike action.

[2] On 5 May 2022, the rule nisi was extended to 7 June 2022 for the purposes of enabling the respondent to file its answering affidavit. It was contended on behalf of the respondent that the Court on that date had further warned the applicants of the mootness of the dispute, in view of certain undertakings it had made that it would not proceed with the disciplinary hearings.

[3] On 19 May 2022, the respondent filed its answering affidavit wherein it had reiterated that indeed the matter was moot based on the undertakings made on 5 May 2022 and further on 16 May 2022 in correspondence sent to the applicants’ attorneys of record.

[4] On 7 June 2022, the matter served before this Court and the respondent persisted with their contention that the final order sought would not serve any practical purposes on account of the undertakings made. It was conceded on behalf of the applicants during the hearing of this matter that the Court ought to discharge the rule nisi on account of the undertakings made and the mootness of the matter. At the conclusion of the hearing, and in the light of an award of wasted costs sought by the respondents, an order was issued effectively discharging the rule nisi and further granting the parties an opportunity to file written submissions regarding costs, to be considered in chambers.

[5] The basis upon which the respondent sought an order of costs was that the relief sought on 5 and 7 June 2022 had become academic, and that an order confirming the rule nisi would not have had any practical effect. It was submitted that even though the applicants were made aware of the mootness of the matter prior to the return dates from as early as the aforesaid dates, they had persisted with confirming the rule nisi. It was against this set of facts and the conduct of the applicants, that it was submitted that they ought to be mulcted with a costs order. In similar vein, it was submitted that all that the applicants needed to do was to acknowledge as early as 5 May 2022 and after the answering affidavit was filed on 19 May 2022, that the respondent had no intention of proceeding with the

disciplinary hearings, and to accordingly abandoned their application at that point.

[6] The applicants contended that the reasons for proceeding with the application were that the respondent had failed to produce the agreement between the parties which purportedly resolved the matter. It was further contended that the settlement agreement which was produced on 5 May 2022 was not signed by the applicants and therefore the matter as of 5 June 2022 was live.

[7] The applicants sought to rely on the uncertainty pertaining to the status of the matter and the undertakings made by the respondent in view of its opposition to the merits in the answering affidavit. They submitted that it was in fact the respondent that ought to be mulcted with costs for the hearings of 5 May and 7 June 2022 on the basis inter alia, that it failed to file an answering affidavit after the rule nisi was granted; that no agreement was presented to the court on 5 May and 7 June 2022 in regard to the alleged settlement

agreement; that the answering affidavit was not brought to the attention of the applicants’ attorney of record until 7 June 2022 and they were thus denied to file a replying affidavit; that there was no written communication from the respondent to the applicants’ attorneys that the disciplinary hearings will not be proceeded with; and further that the respondent had acted in bad faith.

[8] It is settled that this Court when considering an order of costs, exercises a discretion, upon having regard to the requirements of law and fairness as dictated by the provisions of section 162 of the LRA. In the exercise of the discretion, the Court is required to provide reasons for its departure from the ordinary rule in this Court that costs should not ordinarily be awarded. Furthermore, when a Court makes an adverse costs order, it is required to consider the requirements of fairness and with due regard to the conduct of the parties in the proceedings. This means that the Court must seek to strike a fair balance between not unduly discouraging parties from approaching the Court for relief, and on the other hand, to provide a deterrent against parties who bring frivolous applications before the Court.[1]

[9] It must be accepted that the applicants did not dispute that on 5 May 2022, the respondent had orally communicated the undertakings to the applicants’ attorneys of record and further that those undertakings were reduced to writing and dispatched to the applicants’ attorneys of record on 16 May 2022. In fact, Mr Marweshe appearing for the applicants had conceded that he had received the correspondence dated 16 May 2022. He however persisted with the submissions that since there was no agreement proved, the confirmation of the rule nisi was still a competent order.

[10] Equally apparent in the answering affidavit filed on 19 May 2022 is that the underlying dispute between the parties was settled and thus the relief being sought by the applicants had become purely academic. This was on the basis that when the strike action embarked upon by the employees came to an end on 6 February 2022, no further disciplinary action was taken against any of the employees, and further that there was no intention of pursuing any disciplinary action against employees that participated in the strike.

[11] It is therefore apparent that in view of the undertakings made by the respondent as early as on 5 May 2020, and as further

conceded on behalf of the applicants that their representative was equally made aware on 16 May 2022, there would have been no reason for the rule nisi to be confirmed on account of there being no live dispute between the parties. This is significant since the respondent’s representatives had on record on 5 May 2022 indicated that it did not seek to proceed with the impugned disciplinary processes. In my view, these undertakings made during the life of the rule nisi ought to have been sufficient for the applicants to acknowledge that there was no point in persisting with an academic matter. Even if there was doubt regarding the undertakings made by the respondent on 5 May 2022, the latter’s further undertakings on 16 May 2022 followed by the answering affidavit of 19 May 2022 could not have been clearer. This was so in that at that stage it was apparent that any confirmation of the rule nisi would not have had any practical effect, since the matter was clearly moot, and there was no live dispute before the Court.

[12] In the end, in persisting with this matter under the above circumstances, I agree that the applicants compelled the respondent to incur unnecessary costs, including the costs related to the filing and service of the answering affidavit, together with the costs of the hearings on 5 May 2022 and 7 June 2022. An undertaking made by attorneys or legal representatives of the respondent, and who are by implication officers of the Court, in my view ought to have been sufficient. The contention there that there was no agreement is in my view a red herring, and it can only be demonstrative of the applicants’ intention to cause undue prejudice and inconvenience to both the respondent and the Court. Such conduct in my view under the circumstances deserved rebuke in line with the authorities cited above. The persistence with seeking confirmation of the rule nisi in the circumstances described above had nothing to do with the vindication of the applicants’ rights.

[13] Based on the applicants’ conduct and that of their legal representative as described above, I am satisfied that a case was indeed made for the wasted costs as sought by the respondents. Inasmuch as the respondent was entitled to these costs, I am of the view that these should be limited to the proceedings of 07 June 2022.

[14] In the premises, the following order is made:

Order:

1. The First, Second and Third applicants are ordered, jointly and severally with one paying for the other to be absolved, to pay the Respondent’s wasted costs of 7 June 2022.

Edwin Tlhotlhalemaje

Judge of the Labour Court of South Africa

APPEARANCES:

For the Applicant: M. W. Marweshe, of Marweshe Attorneys. For the third Respondent: S. Kroep, instructed by Barnard Incorporated attorneys.

[1] See Zungu v Premier of the Province of KwaZulu-Natal 2018] ZACC 1 (2018) 39 ILJ 523 (CC); 2018 (6) BCLR 686 (CC); Member of the Executive Council for Finance, KwaZulu-Natal and Another v Dorkin NO and Another (2008) 29 ILJ 1707 (LAC) at para 19; National Union of Mineworkers obo Masha and Others v SAMANCOR Limited and Others National (Eastern Chromes Mines) and Others CCT154/20; [2021] ZACC 16; (2021) 42 ILJ 1881 (CC); [2021] 9 BLLR 883 (CC); 2021 (10) BCLR 1191 (CC); Union for Police Security and Corrections Organisation v South African Custodial Management (Pty) Ltd and Others [2021] 12 BLLR 1173 (CC) at para 33.