LABOUR LAW – COURT SHOULD BE CONFERED WITH AUTHORITY TO CONDONE NON-COMPLIANCE WITH ACT – WHAT CONSTITUTE FRIVOLOUSNESS TO ATTRACT ADVERSE COSTS? 

LABOUR LAW – COURT SHOULD BE CONFERED WITH AUTHORITY TO CONDONE NON-COMPLIANCE WITH ACT – WHAT CONSTITUTE FRIVOLOUSNESS TO ATTRACT ADVERSE COSTS? 

In a matter where the court found that a review application was brought out of time as required by section 89 (4) of the Labour Act, 11 of 2007 on the basis that the court has no power to condone non-compliance with a provision of an Act, the court stated the following:

In Puma Chemicals v Labour Commissioner and Another 2014 (2) NR 355 (LC), ‘the court went on to dismiss the review application on the premise of non-compliance with section 89(4) and proceeded to express its displeasure with the content of section 89(4) and the fact that it does not confer the court with the authority to condone non-compliance thereof. As part of the order, the court in the puma case referred the judgment to the Minister of Labour for consideration. Nothing appear to have turned on such referral.

[22] I share the same sentiments as in the Puma case that a court should be afforded powers by the Act to condone non-compliance with the period of time set out in the said Act on good cause shown. The fact that the Act does not provide for condonation for non-compliance with s 89(4), even on the basis of good cause shown, may place the constitutionality of the said provision into question. I am mindful that, in casu, there is no constitutional challenge launched against the provisions of section 89(4) of the Act.’

1^st respondent argued that the persistence of the applicant to pursue the review application even after being notified of the applicability of section 89(4) of the Act, attracts adverse costs against the applicant and his legal practitioners, jointly and severally, as it constituted frivolousness. The court went on to state that:

‘[26] Contrary to other disputes, in labour matters, the Legislature, in its wisdom, included section 118 in the Act which provides that no order for costs would be issued by the Labour Court, save in situations where the institution, defence, or further pursuit of proceedings is either frivolous or vexatious.

[27] Although, I am of the view that the applicant carries blame for proceeding with the review application in the face of the provisions of s 89(4) of the Act. The applicant on the merits appear to have an arguable case. This, coupled with the intention of the Legislature to stir away costs in labour matters save for circumscribed events, in the exercise of my discretion, I do not find it befitting to order costs against the applicant and the applicant’s legal practitioners in this matter. Therefore, no order as to costs will be made.’

Goliath v Langer Heinrich Uranium (Pty) Ltd NALCMD 31 August 2022 v2