An attorney, acting on behalf of the applicant, was ordered to pay the legal costs on an attorney-and-client scale out of his own pocket. The applicant, acting on the advice of his attorney, proceeded with a contempt of court application even though the arbitration award in question was stayed by the court after the respondent brought a successful urgent application. The applicant failed to disclose the full set of facts when the ex parte application was brought, which led to the court issuing a rule nisi.

Mooka v Scaw South Africa (Pty) Ltd and Others (J 1079/2022) [2023] ZALCJHB 93 (21 April 2023)

The applicant, Mooka, brought an application to hold the respondents in contempt of court on account of their alleged failure to comply with an arbitration award that was issued on 20 October 2020.

The application was enrolled to be heard on an ex parte basis on 4 November 2022, whereafter a rule nisi with a return date of 17 February 2023 was ordered.

However, on 15 September 2022, the respondents had brought a successful urgent application to revive a review application of the arbitration award. The Court, therefore, ordered that the enforcement of the arbitration award issued on 21 October 2020 is stayed pending finalisation of the applicant’s application to revive the review application at the Labour Court.

When the applicant’s case for contempt was heard on 4 November, the applicant’s attorneys were fully aware of the order to stay granted on 15 September 2022. The same attorney had acted on the applicant’s behalf to oppose the urgent application, and had filed an answering affidavit on his behalf.

The rule nisi ought never to have been issued and was discharged. The only issue left to be determined was that of costs. The respondents prayed for a cost order de bonis propriis (“straight from the pocket” of the representative).

The Court referred to the case of Schlesinger v Schlesinger 1974 (4) SA 342 (W), where it was held that there was an obligation on an applicant in an ex parte application to disclose all material facts that could have an influence on the decision that a court can reach.

The applicant and his representative displayed a reckless disregard for the full and true facts when they failed to disclose to the Court on 4 November 2022 the order staying further enforcement of the arbitration award. It is clear that had the Court been made aware that enforcement of the award had been stayed, it would never have issued the rule nisi.

Section 162 of the Labour Relations Act (LRA) grants the Labour Court a broad discretion to make orders for costs in terms of the requirements of the law and fairness.

The Labour Court held that it does not ordinarily make orders for costs against individual employees, who in good faith, seek redress against their erstwhile employers. In the present matter, the applicant acted on the advice of his attorney and the attorney persisted with the contempt application to seek tactical advantage, conduct which in terms of Schlesinger warrants an order for costs on a punitive scale.

The Court, therefore, granted a cost order of de bonis propriis, on the scale between attorney and client.

Written by the Labour Guide