CASE NO. P671/00
IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT PORT ELIZABETH
								DATE  9.11.2000
In the matter between:

DEON MACKAY						Applicant
and
MINNAAR NIEHAUS N O					First respondent
COMMISSION FOR CONCILIATION, MEDIA-
TION AND ARBITRATION				Second respondent
SOUTH AFRICAN POST OFFICE			Third respondent
				A N D
								CASE NO. P672/00
								DATE  9.11.2000
In the matter between:

MORNE STARBUCK						Applicant
and
MINNAAR NIEHAUS N O					First respondent
COMMISSION FOR CONCILIATION, MEDIA-
TION AND ARBITRATION				Second respondent
SOUTH AFRICAN POST OFFICE			Third respondent
                                                            				J U D G M E N T
                                                           
LANDMAN, J:
[1]	Two matters were set down for hearing on 8 June 1999
	before a senior commissioner of the CCMA. The two
	matters involved MACKAY v S A POST OFFICE and STARBUCK
	v S A POST OFFICE. The Post Office was not in a posi-
                                                    /...

                                                JUDGMENT  1
	tion to proceed despite having had adequate notice and
	as a result its representatives tendered the wasted
	costs of the applicants for that day, being 8 June 	1999, on a non-litigious scale and the matter was 	postponed. This order is recorded in writing by the 	senior commissioner. As a result, the attorney 	representing Mackay and Starbuck, prepared a bill of 	costs which was submitted to the CCMA for taxation. The 	CCMA appointed the first respondent as its taxing 	master in terms of the Rules Regulating the Practice 	and Procedure for Resolving Disputes through 	Conciliation and Arbitration Proceedings, Government 	Notice R245 of 31 March 2000. These regulations were 	promulgated by the governing body of the CCMA in terms 	of Sec 115(6) of the Labour Relations Act 66 of 1995.
[2]	The first respondent heard argument and expressed the 	view that the senior commissioner's letter indicated 	that payment of wasted costs was only ordered
	in respect of that specific day.  As such he was of
	the opinion that those items in the bill of costs re-
	flecting costs incurred prior to the arbitration day
	had to be excluded. In the circumstances he ruled that
	items 1 - 4 of the bill of costs had to be excluded.
[3]	The applicants were dissatisfied with this ruling and
	sought to review the decision of the first respondent
	in this Court.
[4]	Rule 15(6) of the CCMA provides that: 
		"Any decision by a taxing master is subject to the 		 review of the Labour Court on application." 
	It is quite clear, however, as Mr Laubscher, who 
                                                  /...

                                             JUDGMENT   1   	appeared on behalf of the applicants, correctly pointed 	out, that a subordinate legislature such as the 	governing body of the CCMA is unable to confer
	jurisdiction on the Labour Court and to empower the
	Labour Court to do its bidding.  See L.C. Steyn Die 	uitleg van Wette 4th edition 233-234.
[5]	In the circumstances the present application for review
	cannot be founded on Rule 15(6). However, Sec 158(1)(g)
	of the Labour Relations Act is applicable and in terms
	of that section, this Court may review any function of
	the CCMA on grounds permissible at law. This, however,
	means that the Court would have to apply the normal
	tests which have been found to be applicable in review
	situations. It would seem that the reviewing method of 	a taxation, as it is commonly handled in terms of the 	Rules of the High Court, is not entirely applicable in 	this particular instance. It appears from such 	decisions as WELLWORTHS BAZAARS LTD v CHANDLERS LTD. 	AND OTHERS 1947 (4) SA 453 (T) that when a superior 	court reviews a taxation by a taxing master it will 	correct the taxing master and substitute its own 	opinion for his or her opinion where the matter is one 	in which the Court is at least as well able to judge as 	the taxing master is.
[6]	In this case the only question is whether the commis-
	sioner misdirected himself or committed a gross irre-
	gularity when it came to interpreting the order made by
	the senior commissioner. The language used by the 	senior commissioner is language which has been used in
	courts and tribunals in this country for at least two
                                                          /....

                                              JUDGMENT    1
	centuries.  It has acquired a well-founded meaning.     	Wasted costs are in principle the same as costs of the
	day. See CRAIG v KOPERMIJN, LTD.  1926 TPD 63 and 66,
	DELFOS AND ATLAS CO-OP (EDMS) BPK v V V BANDE (EDMS)
	BPK 1972 (3) SA 907 at 911B-C and MBEKENI v JIKA 1995
	(1) SA 423 (TK) at 424. PICKERING, J who delivered the
	judgment in MBEKENI's case goes on to say at 424F:
		"'Wasted costs' are additional costs in-
		 curred by a party through the fault of
		 his opponent or costs previously incurred
		 which have become useless by reason of
		 his opponent's fault."
	See also the DELFOS case at 910H which says:
		"Die algemene reël is dat die verkwiste
		 koste die ekstra koste is."
[7]	It follows in my opinion that the first respondent did
	not properly apply his mind to the proper meaning of 	the term "wasted costs of the day" and that he commit-	ted a gross irregularity which entitles this Court to 	intervene in his decision. In the premises the two
	applications under case no. P671/00 and P672/00 must
	succeed. The decision made by the first respondent 	under the auspices of the CCMA in both matters is
	REVIEWED and SET ASIDE. The matters are remitted to the
	CCMA to have them taxed afresh and the taxing master,
	whoever that may be, is enjoined to have regard to the
	proper meaning of the concept of wasted costs as ex-
	plained in this judgment and in the decisions to which
	I have referred.
[8]	The applicants seek costs against the taxing master
                                                        /...

                                              JUDGMENT    1
	being the first respondent and the CCMA being the 
	second respondent. Generally speaking, costs are not
	awarded against a public official unless the public
	official was mala fide in exercising jurisdiction.
	That is not the case here. In the circumstances
	there will be NO ORDER for costs.

						                         
							A A LANDMAN
						JUDGE OF THE LABOUR COURT