Myoyo v Executive Authority for the Department of Home Affairs and Another (J3156/17) [2021] ZALCJHB 421 (13 November 2021)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case No: J 3156/17

In the matter between:

MNCEDISI HARRINGTON MYOYO Applicant

and

EXECUTIVE AUTHORITY FOR THE DEPARTMENT

OF HOME AFFAIRS First

Respondent

DIRECTOR – GENERAL FOR THE DEPARTMENT

OF HOME AFFAIRS Second

Respondent

Heard: 26 October 2021

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 13 November 2021 at 11:00

JUDGMENT - COSTS

TLHOTLHALEMAJE, J

[1] The applicant had approached the Court in terms of section 77(3) of the Basic Conditions of Employment Act[1] (BCEA), seeking an order declaring that he was entitled to certain payments by the respondents, following upon his reinstatement

consequent upon obtaining an arbitration award in his favour.

[2] On the date of the hearing and at the invitation of the Court, the parties had managed to amicably resolve the dispute. They had

submitted a draft order[2] in that regard which was made an order of Court. The parties could however not agree on the question of costs, and this is the only issue for consideration by the Court.

[3] Section 162(1) of the LRA[3] provides that this Court may only make an order for the payment of costs, in accordance with the requirements of the law and fairness. The approach of this Court in regard to costs was reiterated in Zungu v Premier of the Province of KwaZulu-Natal and Others[4], and Union for Police Security and Corrections Organisation v South African Custodial Management (Pty) Ltd and Others[5]

[4] Emanating from the above authorities, it is accepted that in labour matters, costs remain a matter of discretion, to be exercised judicially. Having had regard to the facts and circumstances of this case, and further upon a consideration of the requirements of law and fairness, I cannot find justification as to the reason the applicant should be entitled to any costs order against the respondents.

[5] It was submitted on behalf of the applicant that notwithstanding the settlement of the dispute, he should be entitled to costs simply because as late as a day before to the hearing, the respondents’ case in defending the claim, had always been that there was a settlement agreement between the parties in terms of which the dispute between them had been resolved, therefore ousting the jurisdiction of this Court. The respondents’ case until then, was to seek an order making the settlement agreement an order of Court.

[6] It is not necessary to burden this judgment with the circumstances leading to the settlement agreement in question which the applicant had disputed. It was however common cause that on 25 October 2021, the respondents had filed written heads of argument in which the issue surrounding the settlement agreement was abandoned. The respondents had instead raised points of law based on the applicant’s own version, contending that his claim was bad in law and thus unsustainable.

[7] The respondents’ case was essentially that since the applicant’s claim was contractual, there was however no employment contract between the parties since his dismissal. This was so it was argued, because the reinstatement order as per the arbitration award, had not resurrected the employment contract between the parties, particularly in the absence of an actual reinstatement. To that end, it was argued that the applicant’s relief was to be obtained by way of contempt proceedings, rather than a claim in terms of section 77 of the BCEA.

[8] Clearly a discretion in regards to costs cannot be exercised in favour of the applicant in that first, to the extent that settlement discussions were initiated by the Court, and further to the extent that there was indeed a settlement agreement, that in itself did not mean that the respondents had no defence to the applicant’s claim. Nothing can be or should be read into the parties’ willingness to resolve disputes amongst themselves. In fact this Court has and will always encourage parties to go that route if an amicable resolution can be found.

[9] The second point raised on behalf of the respondents, which is correct in law, is that there is nothing that prevents a party from raising points of law in defence against a claim, and if those points are found to be sound and can be dispositive of the matter. In this case, inasmuch as there was nothing to be read into the respondents’ answering affidavit to the extent that the issue of the settlement agreement was abandoned, they were perfectly within their rights to raise the points of law as they had. The applicant cannot in any event, allege any prejudice as a result of the raising of the legal points by the respondent, and to the extent that the applicant’s counsel may have been unprepared to argue those legal points, any prejudice could have been cured by a request for an indulgence from the Court had that been sought.

[10] It therefore follows that in circumstances where the parties have resolved a dispute amicably, this in effect makes it academic for this Court to even have to determine whether an award of costs should be made. It is appreciated that there may be exceptions where a party may seek a costs order even in the event of a settlement of a dispute, where for instance, the other party had acted in bad faith, or had litigated in the most frivolous and vexatious manner, causing the other to unnecessarily incur costs, and only for litigation to be abandoned in Court at the last hour.

[11] The matter before the Court is however is not one of those cases, where it can be said that the respondents’ defence to the applicant’s claim was mala fide, nor can it be said that they had in defending the claim, acted in a frivolous or vexatious manner. On the opposite side of the scale, the respondents had raised compelling and sound legal points, which they were by law, entitled to raise. It therefore follows that the applicant should not be entitled to any costs.

[12] Accordingly, the following order is made;

Order:

1. The parties’ Draft Order which is marked ‘X’ is made an order of court.

2. There is no order as to costs.

Edwin Tlhotlhalemaje

Judge of the Labour Court of South Africa

Appearances:

For the Applicant: Adv.

Z Feni, instructed by Qhali Attorneys INC

For the 1st – 2nd Respondents: Adv. M Naidoo, instructed by the Office of the State Attorney, Johannesburg

[1] Act 75 of 1997

[2] Draft order marked ‘X’

[3] Labour Relations Act 66 of 1995, as amended

[4] (CCT136/17) [2018] ZACC 1; (2018) 39 ILJ 523 (CC); [2018] 4 BLLR 323 (CC); 2018 (6) BCLR 686 (CC), where it was held as follows; “[23] I disagree with the Premier’s submissions. The correct approach in labour matters in terms of the LRA is that the losing party is not as a norm ordered to pay the successful party’s costs. Section 162 of the LRA governs the manner in which costs may be awarded in the Labour Court. Section 162 provides: “(1) The Labour Court may make an order for the payment of costs, according to the requirements of the law and fairness. (2) When deciding whether or not to order the payment of costs, the Labour Court may take into account- (a) whether the matter referred to the Court ought to have been referred to arbitration in terms of this Act and, if so, the extra costs incurred in referring the matter to the Court; and (b) the conduct of the parties (i) in proceeding with or defending the matter before the Court; and (ii) during the proceedings before the Court.” [24] The rule of practice that costs follow the result does not apply in Labour Court matters. In Dorkin, Zondo JP explained the reason for the departure as follows: “The rule of practice that costs follow the result does not govern the making of orders of costs in this Court. The relevant statutory provision is to the effect that orders of costs in this Court are to be made in accordance with the requirements of the law and fairness. And the norm ought to be that costs orders are not made unless the requirements are met. In making decisions on costs orders this Court should seek to strike a fair balance between on the one hand, not unduly discouraging workers, employers, unions and employers’ organisations from approaching the Labour Court and this Court to have their disputes dealt with, and, on the other, allowing those parties to bring to the Labour Court and this Court frivolous cases that should not be brought to Court.””

[4] (CCT136/17) [2018] ZACC 1; (2018) 39 ILJ 523 (CC); [2018] 4 BLLR 323 (CC); 2018 (6) BCLR 686 (CC), where it was held as follows;

“[23] I disagree with the Premier’s submissions. The correct approach in labour matters in terms of the LRA is that the losing party is not as a norm ordered to pay the successful party’s costs. Section 162 of the LRA governs the manner in which costs may be awarded in the Labour Court. Section 162 provides:

“(1) The Labour Court may make an order for the payment of costs, according to the requirements of the law and fairness.

(2) When deciding whether or not to order the payment of costs, the Labour Court may take into account-

(a) whether the matter referred to the Court ought to have been referred to arbitration in terms of this Act and, if so, the extra costs incurred in referring the matter to the Court; and

(b) the conduct of the parties

(i) in proceeding with or defending the matter before the Court; and

(ii) during the proceedings before the Court.”

[24] The rule of practice that costs follow the result does not apply in Labour Court matters. In Dorkin, Zondo JP explained the reason for the departure as follows:

“The rule of practice that costs follow the result does not govern the making of orders of costs in this Court. The relevant statutory provision is to the effect that orders of costs in this Court are to be made in accordance with the requirements of the law and fairness. And the norm ought to be that costs orders are not made unless the requirements are met. In making decisions on costs orders this Court should seek to strike a fair balance between on the one hand, not unduly discouraging workers, employers, unions and employers’ organisations from approaching the Labour Court and this Court to have their disputes dealt with, and, on the other, allowing those parties to bring to the Labour Court and this Court frivolous cases that should not be brought to Court.””

[5] (CCT 192/20) [2021] ZACC 26; 2021 (11) BCLR 1249 (CC)