Stone v Director General of the Department of Labour and Another (8893/2020) [2020] ZAGPPHC 367 (31 July 2020)

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

(1) REPORTABLE: NO

(2) OF INTERESTTO OTHER JUDGES: NO

(3) REVISED.

CASE NO: 8893/2020

In the matter between:-

JAN JOHANNES STONE

Applicant

And

THE DIRECTOR GENERAL OF THE DEPARTMENT OF LABOUR 1st Respondent

THE COMPENSATION COMMISIONER

2nd Respondent

JUDGMENT

Kollapen, J

Introduction

[1] In this matter, the Applicant issued proceedings out of this Court in February 2020 in which he sought an order in the following terms:-

1. That a mandamus order be handed down by this Honourable Court compelling Second Respondent to adjudicate and determine the Applicant’s

compensation within seven (7) Court days from date of this order.

2. Costs of suit on attorney and own-client-scale against First and Second Respondents , jointly and severally, the one paying, the other to be absolved.

[2] The basis upon which the claim was advanced followed the medical boarding of the Applicant by his erstwhile employer the South African Police Services in 1999 and the submission thereafter of a claim by the Applicant to the Second Respondent for compensation in terms of the Compensation for Occupational and Diseases Act No 130 of 1993.

[3] In the Founding Affidavit the thrust of the case advanced by the Applicant was that notwithstanding the proper submission of his claim for compensation, the Second Respondent had failed to take a decision on whether to accept or reject the complaint . He accordingly sought relief that would effectively compel the Second Respondent to take a decision that in law the Second Respondent was obliged to take and had according to the Applicant failed to do so.

[4] After the issue and service of the application the Respondents filed a Notice of Opposition on the 20t h of February 2020, and what

thereafter followed was a trail of correspondence that should have resulted in the resolution of the issue that gave rise to the launch of the application, but unfortunately did not.

[5] On the 12th of March 2020 the State Attorney informed the Applicants attorneys that a decision to repudiate the Applicants claim had been taken on the 18th of December 2019. There was however no proof that this decision had been communicated to the Applicant or its attorneys and the first time the Applicant would have become aware of the decision would have been on the 12th of March 2020.

[6] In response thereto the Applicants attorneys took the stance that as the Applicant had not received the letter of repudiation of the 18th of December 2019, the Applicants attorneys now awaited the Respondents answering affidavit. With respect by then the merits of the dispute had become academic and there would have been no basis for the Respondents to file an answering affidavit. The only outstanding issue then would have been the question of costs.

[7] The Respondents did not tender costs in its letter of the 12th of March 2020, but rather suggested that the matter be removed from the roll with no order as to costs. At that stage the Applicant would at least have been entitled to costs up that that point in the proceedings.

[8] The Applicant however proceeded to enrol the matter for hearing and notwithstanding the repudiation of the claim (which by then was not in dispute) then proceeded to firstly contend that it was still entitled to the mandamus but even beyond that took the stance that the Court could proceed to review and set aside the decision to repudiate the claim. This stance is in my view untenable in law and on the facts. The draft order suggested by the Applicant and argued for in the hearing of the matter would have the Court make an order that the Applicant is suffering from post-traumatic stress disorder and that the Respondents are responsible for 100% of his compensation dated back to 1999. In this regard Applicant sought to place reliance on the judgment of the Supreme Court of Appeal in Gauteng Gambling Board v Silverstar Development 2005 (4) SA p 67 (SCA) at paragraph 40 for the proposition that the Court could consider the grant of such relief.

[9] With respect the reliance on this case is misplaced as the case is authority for the proposition that in exceptional cases the reviewing court may substitute its decision for that of the administrator. The case does not support the proposition that a Court may consider granting review relief in circumstances where that relief is not sought on the papers at all, where the facts do not deal with the new relief sought and where the other side has not been forewarned and given an opportunity to respond to the new relief sought. To do so as the Applicant has urged this Court to do would offend the basic principles of fairness and predictability in litigation and would seriously undermine the audi alterem principle. It is for these reasons that the kind of relief advanced in the draft order and pursued by Counsel for the Applicant at the hearing of the matter is simply untenable.

[10] This is a radical leap from the relief sought in the Notice of Motion and in substance constitutes a new case which is advanced not on the papers but in argument.

[11] What all this illustrates is that the Respondent was remiss in not communicating the decision of repudiation of the 18th of December 2019 and also erred in not making an appropriate tender for costs when it finally did communicate its decision on the 12th of March 2020.

[12] On the other hand the Applicants were unreasonable in insisting on the enrolment of the matter and a request that an answering affidavit be filed when on the objective facts the relief sought had become moot by the 12t h of March 2020. I am not sure though whether a tender for costs would have resolved the matter given the stance of the Applicant in seeking even at the hearing of the matter to advance a case for relief beyond what the Notice of Motion sought and not supported by the facts in the founding affidavit.

[13] In the circumstances and given that the question of costs ultimately remains in the discretion of the Court I am of the view that the Applicant would be entitled to an order for costs on an unopposed basis up to an including the 12t h of March 2020. Despite a Notice of Opposition being filed, the matter was in substance unopposed and the letter from the Respondents

attorneys of the 12th of March 2020 informing the Applicants attorneys of the decision taken and attaching a copy of the decision

to its letter would have rendered the dispute academic from that point onward. To that extent costs on the unopposed scale would be justified.

[14] There is no justification for costs on a punitive scale. The decision sought was made well in advance of the issue of the application. That it was not communicated to the Applicant or that no proof existed of such communication does not justify a punitive costs order. While there was a long delay in taking the decision there was also a long delay on the part of the Applicant in bringing these proceedings long after the reasonable time for the taking of a decision had lapsed. There is in the circumstances an element of culpability and delay on the part of both parties and under these circumstances a punitive order of costs would not be warranted.

[15] Beyond the 12th of March 2020, the respective conduct of the parties suggest that they were equally remiss - the Respondents in not tendering costs and the Applicant in insisting on proceeding with the both the merits of the matter as well as additional relief not foreshadowed on the papers. For the period beyond the 12th of March 2020 no costs order is accordingly warranted.

[16] In conclusion parties involved in litigation should remain mindful that litigation is a costly exercise and Courts should be careful not to encourage irresponsible litigation by rewarding parties with cost orders when on the objective facts such costs are not justified or could by the exercise of common sense and reasonableness have been avoided . This is such a case.

Order

I make the following order:-

1. It is recorded that the Respondent have repudiated the claim of the Applicant and that while the date of repudiation is the 18th of December 2019, the Applicant only became aware of this decision on the 12th of March 2020.

2. The Respondents are ordered jointly and severally, the one paying the other to be absolved, to pay the costs of this application on an unopposed basis up to and including the 12th of March 2020.

NJ. KOLLAPEN

JUDGE OF THE HIGH COURT,

PRETORIA

APPEARANCES:

Applicant:

Adv W.F Pienaar SC

Instructed by:

Wolvaardt Incorporated Attorneys

Respondent:

Adv K Toma

Instructed by:

State Attorney, Pretoria

DATE OF HEARING:

27 July 2020

DATE OF JUDGMENT:

31 July 2020