3.
to make no order as to costs.
In response to these Heads the respondent filed its own Heads of argument in which it dealt with all three issues raised in the claimants’
Heads of argument. The respondent’s main argument however was that the interim relief application had lapsed.
On the day of the hearing itself the first and second claimants appeared in person without legal representation. We were informed
that the third complainant was overseas and had no knowledge of these proceedings. The respondent was represented by its attorney
and counsel.
We adjourned the matter to allow the respondent’s legal team to consult telephonically with the claimants’ attorney who
was in Durban. Since the matter revolved entirely around costs we asked if they could attempt to settle the matter. We were later
advised that this had not been possible.
The actions of the complainants in this matter and their attorneys are difficult to fathom. It appears that initially after receipt
of the notice of non-referral they had resigned themselves to the fact that they would not continue this matter. In a letter to the
Tribunal dated 18 January 02 their attorneys advised us that:
“ We refer to our Ms Hoffman’s recent discussion with your Mr Tsitsi, and confirm that our clients did not wish to proceed with
this matter in view of the ruling of the Competition Tribunal (sic) ( We presume an erroneous reference to the Commission’s decision to issue a notice of non-referral) particularly insofar as they were no able to afford the costs occasioned by arguing this matter before the Tribunal.”
Despite this they then in the same letter go on to say :
“ However it seems that the Respondent is adamant that it wishes to have this matter heard before the Tribunal and has apparently set
this matter down for hearing.
In the circumstances our clients have no option but to proceed with this matter and their heads of argument are annexed hereto.”
The heads of argument (prepared and submitted by their attorneys) referred to here persist in arguing the merits of the interim relief
application. The claimants’ attorney had thus prolonged the dispute at the very moment that they wished to appear to be abandoning
it due to their clients’ lack of funds. Given this stance on behalf of the claimants’ attorneys, it was entirely reasonable
for the respondents to prepare for this hearing on the basis that the matter was to be argued on the merits.
Has the interim relief application lapsed?
We agree with the respondent that the interim relief application has lapsed and that it is therefore not competent for us to grant
an order in relation to that application.
An interim relief application is one contingent on the continued existence of a pending complaint process that has still to be decided.
What is contemplated is some procedure pending before the Commission or Tribunal in respect of which a hearing has not yet been concluded.
When the Commission issues a notice of non–referral it has two consequences ;
1.
the Commissions investigation ceases ;
2.
the Commission no longer has jurisdiction to refer that complaint.
Once the Commission has issued a notice of non-referral, an interim relief case is suspended until the occurrence of a subsequent
jurisdictional fact. That subsequent jurisdictional fact is the filing of a complaint referral by the complainant within the prescribed
time period.If that filing is not made within the prescribed time period the application lapses.
In this case it is common cause that the claimants have not referred the complaint to us in terms of section 51 and they have stated
that they do not intend to do so. Accordingly the application has lapsed and therefore the only issue properly before is whether
the respondent is entitled to its wasted costs.
IS THE RESPONDENT ENTITLED TO COSTS?
The respondent argues that as in any other civil court matter we should observe the general principle that costs follow cause. They
further argue that in the past where an application for interim relief has been dismissed the Tribunal has awarded the respondent
costs. In this case although the application has not been dismissed the claimants have not kept their claim alive by filing a complaint
referral and therefore the same principle should apply.
The claimants’ attorneys in their heads of argument ask us not to make an award of costs because this would have the effect
of deterring persons from making complaints in terms of the Act. In this respect they appear to have confused two different processes.
Where a member of the public lodges a complaint with the Commission in terms of section 49 B of the Act, that person is not liable
for a respondent’s costs even if the Commission does not proceed with a complaint referral. In this respect filing complaint
with the Commission is no different to laying a charge with the police.
The position is quite different when it comes to an application in terms of section 49 C for interim relief. Here a complainant is
no longer waiting for the Commission to decide whether it will institute action, but is using its own resources because it wants
to get expedited interim relief. If it chooses this route it risks the possibility that if it is unsuccessful it will have to pay
the respondents cost . Thus no one is obliged to proceed with interim relief if they want to bring a complaint in terms of the Act,
but if they choose to avail themselves of this additional remedy they must be mindful of the consequences. It is therefore incorrect
to state that awarding costs against claimants in interim relief applications will deter members of the public from lodging complaints
with the Commission.
However it does not follow that we will always adopt a cost follows cause approach. There may be circumstances where a claimants who
abandons or who loses an interim relief application will show that there are special circumstances why we should not award costs
against them. In this case, however the claimants have not shown us that such circumstances exist. Moreover, since the Commission
issued its notice of non-referral the claimants adopted a posture that led to the respondent incurring further unnecessary costs.
The claimants should be liable for the respondent’s costs. There is no justification for any separate treatment of the third
claimant. His attorneys of record, who have never withdrawn, were aware of the date of the hearing and never advised us that the
date was not suitable for their client.
However we are not persuaded that the matter is of such complexity that it justified the respondent employing more than one legal
representative.
We accordingly make the following order-
1)
the claimants, jointly and severally, are ordered to pay the respondent’s costs on a party and party scale;
2)
the costs are to be limited to the fees of one legal representative.
_____________
4 February 2002
N.M. Manoim
Date
Concurring: D. H. Lewis, C. Qunta
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