IN THE HIGH COURT OF SWAZILAND JUDGMENT · 2017-10-20 · 4 Applicants out of time as envisaged by...
Transcript of IN THE HIGH COURT OF SWAZILAND JUDGMENT · 2017-10-20 · 4 Applicants out of time as envisaged by...
1
IN THE HIGH COURT OF SWAZILAND
JUDGMENT
Case No. 1510/15
In the matter between:
NDZ CONSULTING COMPANY (PTY) LTD 1st Applicant
TRENCOR INVESTMENTS (PTY) LTD 2nd Applicant
VS
SIBUSISO MOHAMMED 1st Respondent
CMAC 2nd Respondent
FANILE GININDZA N.O. 3rd Respondent
Neutral citation: NDZ Consulting Company (Pty) Ltd & Another VS Sibusiso
Mohammed & Others [1510/15] [2017] SZHC 146 (25th July,
2017)
2
Coram: FAKUDZE, J
Heard: 17/07/2017
Delivered: 25/07/2017
Summary: Civil Procedure – 1st Respondent claims for costs at Attorney –
own client scale – Applicant resists same on basis that matter
was settled out of court – there was a compromise between the
parties – 1st Respondent not entitled to costs – principles
governing award of costs. Costs follow the event – successful
party entitled to costs – granting of costs discretion of court –
such discretion to be exercised judiciously – since matter settled
between parties, each party to bear its own costs – Application
for costs dismissed.
JUDGEMENT
Background
[1] The 1st Respondent was employed by the 2nd Applicant in April, 2011 as a
mechanic. On or about 2013, the 2nd Applicant came on board and made
employees of the 1st Respondent to sign contracts of employment. No
3
terminal benefits were paid to these employees. The 1st Respondent alleges
that he did not sign any contract with the 2nd Applicant. The 1st Respondent
was charged for failing to account for a sum of Two Hundred Emalangeni
(200.00) given to him by the 1st Respondent. He was found not guilty in a
hearing convened by the 2nd Applicant. However, the 1st Applicant did not
allow him to resume his normal duties. He then filed a claim for
compensation for unfair dismissal and terminal benefits. The claim was
filed with the 2nd Respondent, CMAC.
[2] The 3rd Respondent made an Arbitration Award in favour of the 1st
Respondent. The Award specifically provided that payment of the amounts
due to the 1st Respondent should be on or before the 30th June, 2015.
Parties’ contention
The 1st Respondent’s Case
[3] The 1st Respondent argues that following the registration of the Arbitration
Award, the matter was set down on the 28th August, 2015 under Industrial
Court Case No. 380/15. After the matter had been set down, the Applicants
then moved an Application at the High Court for Review of the proceedings
of the Arbitration. The Application for Review was filed by the 1st and 2nd
4
Applicants out of time as envisaged by Section 85(4)(b) of the Industrial
Relations Amendment Act, 2010. The Applicants, so argues the 1st
Respondent, should have filed the Review Application within a period of
Twenty One (21) days from the date of issuance of the Arbitration Award.
[4] After the Review Application was filed at the High Court, the Industrial
Court ordered that it be removed from its Roll. When the proceedings were at the
High Court, the parties exchanged pleadings. They were closed. The 1st
Respondent filed its Heads of Argument and the Applicants never filed
theirs causing the matter to be postponed time and again. The 1st Respondent then
alleges that the Applicants have decided to abandon the Review Application
and the matter was then settled out of court. Notwithstanding the
abandonment, the Applicants are refusing to pay the 1st Respondent’s costs,
hence the matter has been left to the court to decide on it. The costs the 1st
Respondent is paying for are at an attorney and own client scale. This has
always been the 1st Respondent’s prayer since the litigation started, so
alleges the 1st Respondent.
[5] The reason why the 1st Respondent claims that it is entitled to costs is that
the Applicants have unjustly compelled the 1st Respondent to engage in
5
litigation. If the Applicants had complied with the Arbitration Award the matter
would have reached finality unless the Applicants seek to challenge it by
way of review and within the 21 days period as stipulated in the Industrial
Relations Act, 2000. By failing to prosecute its case on time, the Applicants are
abusing the court process and are also purposely frustrating the 1st Respondent
in whose favour the award was made.
[6] The 1st Respondent finally submits that the circumstances in the present case
warrant the granting of costs in favor of the 1st Respondent in that he was
unfairly dismissed from work by the Applicants, was summoned by the
Applicants to appear for purposes of a disciplinary hearing in which he was
found not guilty, but was nevertheless fired. The 1st Respondent also
appeared before the Arbitrator who ruled in his favor and granted him the
Award which the Applicants failed to timeously honour. The 1st Respondent
approached the Industrial Court for the endorsement of the Award and same was
opposed by the Applicants. They then filed a Review Application in the High
Court, which they failed to pursue. All these facts show that the
Applicants were abusing the court process and the 1st Respondent has been put
out of pocket.
6
The Applicants’ case
[7] The Applicants allege that the matter to be resolved by this court pertains to
costs which the 1st Respondent claims for opposing the Review Application.
In resisting the claim for costs, the Applicants state that since the parties
concluded the issue by mutual agreement between them, this signifies that
the parties ignored the merits and the demerits of the Review Application.
Focus was then placed on the quantum of the Arbitration Award to get the
matter amicably settled and put to rest.
[8] The Applicants further contend that the reason it challenged the Arbitration
Award was that there was a glaring irrational disconnect between the
evidence adduced during the hearing and proved information before the
arbitrator. Other factors were also alleged in the Founding Affidavit to the
Review Application. The Applicants aver that it is common cause, that
despite several set downs made before this Honourable Court and a chance
never availed for the parties to be heard in arguments with respect to the points of
7
law raised by the 1st Respondent, it was in March, 2017 wherein a spirit of
settlement prevailed upon the parties.
[9] Since the dispute between the parties was compromised in that the merits
and demerits of the matter were not adjudicated upon, the dispute between the
parties extinguished. In support of its proposition the Applicants made
reference to the wise words of Rooney J. in the Botswana case of Township
Rollers Football Club V Botswana Football Association 1974(1) B.L.R.
20 at p. 23, where His Lordship said that:-
“I am by no means convinced that where an action had been
compromised, the Plaintiff might proceed with the action for costs
only. A compromise implies something more than either the abandonment
of an action or a consent order to judgment. It involves the mutual
adjustment of conflicting claims and interests without regard to their
merits and the rights and obligations of the parties thereto.”
His Lordship further observed that
“……… the dispute between the parties having been compromised
could not be revived merely to settle the question of costs.”
8
The Applicable law
[10] The basic rule pertaining the award of costs is that costs are awarded based
on the discretion of the court. Such discretion should be exercised judiciously.
In the case of Nedbank Swaziland V Sandile Dlamini NO Civil Case No.
144/2010, His Lordship Maphalala M.C.B. J (as He then was), cited with
approval at page 10, the case of Kruger Brothers and Wasserman V
Ruskin 1918 A.D. 63 at 69 where Innes C.J. stated the basic rule as follows:
“…………. the rule of our law is that all costs unless expressly
otherwise enacted, are in the discretion of the judge. His discretion
must be exercised judicially.”
[11] In Fripp V Gibbon and Company 1913 A.D. at 363, His Lordship De
Villiers P pointed out the difficulty courts face in deciding the award of
costs when the Learned Judge said:
9
“It is common cause that while, as a rule, there is no room for the
discretion of a Magistrate or a Judge on the merits of a case as he is
bound to decide the issues between the parties in accordance with
their rights as established at the trial, on the matter of costs, the law allows
him a discretion, which of course is a judicial discretion. Questions
of costs are always important and sometimes complex and difficult to
determine and in leaving the Magistrate a discretion the law
contemplates that he should take into consideration the circumstances
of each case carefully weighing the various issues inducing the
conduct of the parties and any other circumstance which may have a
bearing upon the question of costs, and then make such order as to
costs as would be fair and just between the parties………”
[12] The Learned authors, Herbstein and Van Winsen, The Civil Practice of the
Supreme Court in South Africa (3rd Edition at pages 477 to 478, deal with
the fundamental rules relating to the award of costs. They observe that:
“The award of costs is a matter wholly within the discretion of the
Court. But this is a judicial discretion and must be exercised upon
10
grounds on which a reasonable man could have come to the
conclusion arrived at…….”
[13] On the issue of costs on Attorney and own client basis, the Superior Courts
in our jurisdiction have provided some guidelines. In the High Court Case of
Sikhumbuzo Thwala V Pholile Thwala (nee Dlamini) Case No. 101/12,
the Learned Justice Ota said:
“Now the award of costs of and Incidental to any proceedings is at
the discretion of the court. This discretion, like any other discretion must
be exercised judicially on fixed principles, that is according to rules of
reason and justice, not according to private opinion. Similarly the
exercise of the discretion must not be effected by questions of
benevolence and sympathy. In exercising this discretion, the court
looks at the result of the action itself as well as the conduct of the
parties to see whether either of them had in any way involved the other
unnecessarily in the expense of litigation. The court looks at all
the facts of the case. It is imperative for me to observe here that
the attorney and client costs sought by the Respondent is one that
the court approaches with caution. The judicial accord is that this scale
11
of costs is only awarded where there are compelling circumstances that
would justify same. The cautious approach is underscored by the fact
that the court is loath to penalise a party who has lawfully exercised his
right to obtain a judicial decision in any complaint he might have.”
Court’s Analysis and Conclusion
[14] The 1st Respondent’s contention is that the Applicants filed the Review
Application out of time and contrary to the provisions of the Industrial
Relations Act, 2000 especially Section 85 (4)(b). This is the first reason
why costs at attorney and own client scale should be awarded to it. The court’s
observation on this point is that it was initially raised by the 1st Respondent
as a point of law when this party was filing its Answering Affidavit. Page
43 of the Book of Pleadings reflects this. If same had been fully
argued before the High Court, the court would have made its finding on it.
Unfortunately, the whole case was not fully argued because the parties then
opted to settle out of court all the issues around the Review Application.
This court cannot therefore pronounce that the 1st Respondent is entitled
to costs at attorney and own client basis with respect to a point of law that
was never argued by the parties.
12
[15] The 1st Respondent further justifies the entitlement to costs at attorney and
own client basing it on the fact that after the Review Application had been
filed at the High Court, the Applicants did not prosecute it speedily and
timeously notwithstanding that the pleadings had been filed. The pleadings
included the filing of Heads of Argument by the 1st Respondent. There were
also various postponements. All these seek to prove that the Applicants
filed the Review Application for purposes of frustrating the implementation of the
Arbitration Award.
In response to this allegation, the Applicants state that as of right they had
to defend their interests by whatever available legal processes. The
Arbitration Award Review Application was filed in good faith with a view
to establishing some shortcomings in the manner in which the Award was
granted. The matter was resolved amicably between the parties through a
negotiated process. The merits and demerits of the Review were not dealt
with by a court of law. The court’s view is that there is no merit in what
the 1st Respondent is saying to establish and justify him being granted costs at
attorney and own client basis. The 1st Respondent has failed to produce
anything to establish that he was the successful party. It is common cause
that costs follow the event. This court holds the view that in all honesty,
13
the Applicants were on a mission to exercise their right even if they did so
out of time. The High Court Judge’s file reflects that on two occasions the
matter was postponed at the instance of the 1st Respondent for non-
appearance by the Applicants. On these occasions, the 1st Respondent was
granted wasted costs for the day. The other consideration is that the matter
was settled out of court between the parties. As the Applicants rightly pointed
out, it is difficult to tell who the successful party was. The dispute between
the parties was compromised and the merits and the de merits of the case were
not dealt with.
[16] In light of the foregoing I hereby order as follows:
(a) The matter for determination between the 1st Respondent and the
Applicants is hereby dismissed and the 1st Respondent is not entitled
to the costs prayed for.
(b) Each party shall bear its own costs with respect to this Application.
14
APPLICANT: Z. MAGAGULA
1ST RESPONDENT: S.G. DLAMINI