THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: JR 1935/2020

In the matter between: 

SVA SECURITY SERVICES (PTY) LTD	Applicant

and	

BONGANI SIMON MUCABEL	First Respondent

XOLANI NYAMEZELE N.O	Second Respondent

THE COMMISSION FOR CONCILIATION, 
MEDIATION AND ARBITRATION	Third Respondent

Decided in chambers: 14 March 2023
This judgment was handed down electronically by consent of the parties’ representatives by circulation to them via email. The date for hand-down is deemed to be 14 March 2023.

JUDGMENT ON COSTS

PRINSLOO, J
Introduction

[1]	On 17 February 2023, this Court issued an order wherein the Applicant’s application for review was dismissed. The review application failed inter alia because the attack on the arbitration award, as set out in the founding affidavit, was evidently one which no thought went into and no effort was made to file a supplementary affidavit after the record became available and it became clear that the review application was unsustainable. Ultimately, the Applicant’s case had no merit on the facts and it was a case that should not have moved to the level of a review application in the first place.

[2]	In respect of the issue of costs, the Court was, in view of the facts and the meritless grounds for review raised, satisfied that the First Respondent was entitled to costs. The question was who should be ordered to pay the costs.

[3]	Mr Mahafha for the First Respondent submitted that a punitive cost order should be made in favour of the First Respondent and that due to the conduct of the Applicant’s legal representatives, they should be ordered to pay the costs de bonis propriis. 

[4]	I invited Mr Swiegers, appearing for the Applicant, to make submissions as to why the Applicant’s attorneys should not be ordered to pay the Respondent’s costs and why a cost order de bonis propriis should not be made. 

[5]	Mr Swiegers was not in a position to make any submissions as to why cost should not be ordered as aforesaid. Since Lee and McAdam Attorneys were not given notice of my intention to make such an order, I afforded them seven days within which to make submissions as to why a cost order de bonis propriis should not be confirmed. 

Submissions made

[6]	Mr Lee from Lee and McAdam Attorneys filed written submissions as to why the provisional cost order made on 17 February 2023 should not be confirmed. Mr Lee confirmed that the judgment of this Court has been taken very seriously and he explained that the instructions in the review application were taken by Mr Dawson, who was employed by Lee and McAdam Attorneys in 2018, when his articles were ceded and who was admitted as an attorney in March 2021. Mr Dawson had a close relationship with the client, being the Applicant, and he took instructions and was involved in the review application. Mr Lee played no part during the review application, he only appeared at the arbitration proceedings to oppose the First Respondent’s application for legal representation. Mr Dawson ran with the review application independently and without Mr Lee’s input.

[7]	Mr Lee explained that the founding affidavit was attended to without his involvement and he does not recall signing a confirmatory affidavit, confirming the content of the founding affidavit. Mr Lee conceded that the content of the founding affidavit in relation to the events of 11 August 2020 and on which a ground for review was premised, is indeed incorrect and ill-conceived and that it should not have been included in the grounds for review. He accepted that the error should have been picked up earlier and certainly before the matter was heard. Mr Lee apologised for this and submitted that the grounds for review should have been checked once the record became available, but it was not and this was due to dropping the ball and not by intent or mala fides. 

[8]	Mr Lee conceded that the error in the founding affidavit could have been rectified, but he was not actively involved in the matter and he did not check on the progress of the application as Mr Dawson was dealing with the matter. Mr Dawson has since left the firm.

[9]	When the matter was set down for hearing, it was sent to counsel without checking the file and counsel drafted the heads of argument based on the pleadings. The transcript was not provided to Mr Swiegers and the heads of argument were drafted on the strength of the founding affidavit, wherefore the same ill-conceived ground for review was repeated and persisted with. It was only when this Court raised concerns with Mr Swiegers that Mr Lee actually perused the content of the affidavit in relation to the record. He conceded that reviewing the papers after the fact was too little too late. 

[10]	Mr Lee explained that after perusal of the papers and after being aware of the concerns raised by this Court, he consulted with his client and obtained instructions to settle the dispute. Mr Lee apologised to the Applicant, and which apology was accepted. Mr Lee accepted that the legal profession has no place for complacency and undertook that such a costly and embarrassing mistake will not be repeated.

[11]	Settlement discussions with the First Respondent’s attorneys were entered into and it culminated in an agreement regarding the quantum and the costs, which agreement was reached prior to the judgment of this Court being received. It is unfortunate that the parties have not alerted this Court of the fact that they were settling the matter, which would have avoided a situation where time and resources were spent to write a judgment in a matter that was settled between the parties. 

[12]	Be that as it may, I have been provided with a copy of the settlement agreement and it is apparent from the agreement that it was signed by the First Respondent on 16 February 2023 and by the Applicant on 17 February 2023. The agreement constitutes a full and final settlement of the dispute under case number JR 1935/20 and it provides for the payment of the wasted costs involved in this matter. By agreement, the Applicant tendered to pay such costs.

[13]	Considering the fact that the Applicant has tendered to pay the First Respondent’s cost, which tender was accepted and is provided for in a written settlement agreement, this Court is not inclined to make a cost order against the explicit agreement concluded between the parties. As a result, the provisional cost order made on 17 February 2023 is not confirmed. 

[14]	In the premises, I make the following order: 

1.	The cost order in paragraph 2 of the order of 17 February 2023 is not confirmed and the cost of the application is to be paid in accordance with the settlement agreement concluded between the parties. 

Connie Prinsloo
Judge of the Labour Court of South Africa