South Africa: Johannesburg Labour Court, Johannesburg

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Case no: J1580/15

DATE: 15 MARCH 2016

In the matter between:

VERULAM SAWMILLS (PTY) LTD.....................................................................................Applicant

And

ASSOCIATION OF MINEWORKERS AND

CONSTRUCTION UNION (‘AMCU’)......................................................................First Respondent

166 EMPLOYEES OF APPLICANT AND MEMBERS OF

FIRST RESPONDENT.....................................................................Second and Further Respondents

Decided in chambers

Date: 15 March 2016

JUDGMENT IN APPLICATION FOR LEAVE TO APPEAL

MYBURGH, AJ

[1] AMCU and its members (the respondents in the main application) seek leave to appeal against my judgment in this matter, in which I ordered AMCU to pay the costs of an urgent application for an interdict on the attorney-and-client scale. 

[2] It is trite law that leave to appeal against an order as to costs will not be given lightly. Indeed, it appears implicit from section 16(2)(a)(ii) of the Superior Courts Act 10 of 2013 that leave to appeal against a costs order should only be granted in “exceptional circumstances”. 

[3] In its application for leave to appeal and written submissions, AMCU advances six grounds of appeal, each of which is addressed in turn below. 

[4] Firstly, AMCU contends that the court misdirected itself in failing to consider that the application for an interdict was unopposed. There is no merit in this ground of appeal.  Not only is it apparent from the judgment that I was alive to this issue, but there is also no rule that a party can escape paying costs simply because it does not oppose the application.  

[5] Secondly, AMCU contends that the court failed to take into account that the company (i.e. the applicant in the main application) was not blameless.  As appears from my judgment, I was alive to the allegations that the company had not furnished buses and that it had disconnected the supply of water and electricity to the hostels, which was restored inside of a day (see paras 9(c), 9(d) and 19). Despite these allegations, I considered a punitive costs order warranted for the reasons explained in my judgment.

[6] Thirdly, AMCU contends that the court failed to consider that the company deliberately and intentionally attempted to frustrate the strike and thereby antagonised the striking employees. This is essentially a repetition of the second point, which I have already addressed. Furthermore, it is by no means clear to me that a link was established on the papers between this alleged conduct and the conduct of the strikers; and it certainly is not any justification for the inaction of AMCU described in my judgment.

[7] Fourthly, AMCU contends that the court failed to holistically consider the relevant case law, and focused only on those cases against AMCU, which were in any event (so it is contended) distinguishable.  I do not believe that there is any merit in this.  The case law cited in my judgment is consistent with the order that I made. 

[8] Fifthly, AMCU contends that the court erred in making a punitive order as to costs because there was no evidence to establish that the union had conducted itself improperly. I also do not believe there to be any merit in this contention.  I was not presiding over a case involving whether or not AMCU was in contempt of court, but rather over a case regarding whether it should be held liable for the costs of an urgent application in circumstances where its members conducted themselves unlawfully, and where the union itself failed to take all reasonable steps to ensure that they did not do so.

[9] Sixthly, and finally, AMCU contends that the court failed to consider that the company has a remedy in law to recuperate its losses in the event that it is able to prove that it suffered any. Even if this contention is correct, it does not detract from the fact that, in my view, a punitive costs order was warranted.

[10] In the circumstances, I do not believe that AMCU has reasonable prospects of success on appeal, particularly given that the appeal relates only to an order as to costs.

[11] In the premises, the following order is made: the application for leave to appeal is dismissed with costs.

Myburgh, AJ

Acting Judge of the Labour Court of South Africa