National Union of Metalworkers South Africa v Naledi Rail Engineering (J597/19) [2021] ZALCJHB 34 (9 March 2021)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case No: J597/19

In the matter between:

NATIONAL UNION OF METALWROKERS

SOUTH AFRICA

Applicant

and

NALEDI RAIL ENGINEERING

Respondent

Enrolled: 03 March 2021

Decided on the papers

Delivered: In view of the measures implemented as a result of the Covid-19 outbreak, this judgment was handed down electronically by circulation to the parties' representatives by email. The date for hand-down is deemed to be 09 March 2021.

Summary: Review of the decision of the taxing master in terms of Rule 25(6).

JUDGMENT

NKUTHA - NKONTWANA, J

Introduction

[1] This is an application in terms of Rule 25 (6) read with Rule 7 of the Labour Court Rules. The applicant, National Union of Metalworkers South Africa (NUMSA) seeks an order reviewing and setting aside or alternatively, rescinding the taxation of the bill of costs under case number J597/19 held on 12 August 2019 in favour of the respondent, Naledi Rail Engineering (Pty) Ltd (Naledi)

[2] Naledi is opposing the application and also seeks condonation for the late filing of its answering affidavit by a day. The delay is negligible and the explanation proffered is reasonable. I accordingly grant the indulgence.

Pertinent facts

[3] On 11 March 2019, the employees of Naledi, the majority were members of NUMSA, embarked on an unprotected strike. Aggrieved by the unlawful conduct of the employees, on 14 March 2019, Naledi approached this Court by way of urgency, seeking an order, inter alia, interdicting the unprotected strike and any unlawful conduct perpetrated by the members NUMSA.

[4] NUMSA did not oppose the urgent application. However, Mr Nkosinathi Moyo (Mr Moyo), NUMSA official and the deponent to the founding affidavit, asserts that he became aware of the urgent application on the date of the hearing while he was in court attending to another matter. Mr Moyo did not seek an indulgence to oppose the granting of the interim order. Consequently, a rule nisi was issued by Van Niekerk J, returnable on 09 May 2020. On the return date, the matter was still unopposed and rule nisi was duly confirmed with costs against NUMSA.

[5] NUMSA was served with a letter of demand seeking an amount of R71 655.00 due to the Company pursuant to the costs order and had to be paid by 24 May 2019. Instead of effecting the demanded quantum, NUMSA called for the taxation of the bill of costs.

[6] Naledi served NUMSA with a notice of taxation of the bill of costs. It is common cause that NUMSA did not file any notice on intention to oppose. The bill of costs was set down for taxation on 12 August 2019 and proceeded in the absence of NUMSA. The taxed bill of costs came to the amount of R88 674.21

[7] In these proceedings, NUMSA impugns the decision of the taxing master on the basis that it was not served with notice of set down for the taxation.

Analysis

[8] Subrules (4) and (5) of Rule 25 of the Labour Court Rules which read:

‘(4) The taxing master must not proceed to the taxation of any bill of costs unless the taxing master has been satisfied by the party requesting the taxation (if the party is not the party liable to pay the bill) that the party liable to pay the bill has received due notice as to the time and place of the taxation and of that party’s entitlement to be present at the taxation.

(5) Despite sub-rule (4), notice need not be given to a party-

(a) who failed to appear at the hearing either in person or through a representative; or

(b) who consented in writing to the taxation taking place in that party’s absence’

[9] NUMSA concedes it was served with the notice of taxation which it did not oppose. However, the crux of its impugn is that it ought to have been notified of the details of the set down. Naledi, on the other hand, contends that, since NUMSA was absent at the hearing of the matter on the return date, it was not entitled to a notice of set down in terms of Rule 24(5(a).

[10] Indeed, NUMSA was absent on 09 May 2020 when the rule nisi was confirmed. There is no explanation proffered for not appearing in court despite Mr Moya’s assertion that he was in court when the rule nisi was issued. As correctly submitted by Naledi, NUMSA’s claim must bite the dust due to Rule 25(5)(a).

[11] The rescission application is equally unmeritorious. NUMSA concedes that it was served with the notice of taxation but decided not to file its notice of intention to oppose.

Conclusion

[12] In the circumstances, decision of the taxing master consequent to the taxation of the bill of costs under case number J597/19 is unassailable and must stand. This application stands to be dismissed accordingly. Yet, I am not inclined to award costs against NUMSA in keeping with the principles and law and fairness.

Order

[13] In the circumstances, I make the following order:

1. The application is dismissed.

2. There is no order as to costs.

__________________

P Nkutha-Nkontwana

Judge of the Labour Court of South Africa