- December 9, 2022
- |Concise Law Reports (CLR), Labour Law
[27] I will now turn to the issue of costs, section 118 of the Labour Act reads as follows:
‘Despite any other law in any proceeding before it, the Labour Court must not make an order for costs against a party unless that party has acted in a frivolous or vexatious manner by instituting, proceeding with or defending those proceedings.’
[26] In National Housing Enterprise v Beukes and Others, 2009 (1) NR 82 (LC) at 87E-88F Van Niekerk J while dealing with section 20 of the Labour Act 6 of 1992, said the following about the terms frivolous or vexatious:
[20] “… The question arises: what does it mean to say that a party has “acted frivolously or vexatiously”? In Fisheries Development Corporation of SA Ltd v Jorgensen and Another; Fisheries Development Corporation of SA Ltd v AWJ Investments (Pty) Ltd and Others 1979 (3) SA 1331 (W) Nicholas, J as he then was, while dealing with an application to stay proceedings which were alleged to be vexatious or an abuse of the process of the court, said this: “In its legal sense, “vexatious” means frivolous, improper: instituted without sufficient ground, to serve solely as an annoyance to the defendant.’
[21] It seems to me that the intention in enacting s 20 was to allow a measure of freedom to parties litigating in labour disputes without them being unduly hampered by the often inhibiting factor of legal costs. The exception created by the section uses the word acted, indicating that it is the conduct or actions of the party sought to be mulcted in costs that should be scrutinised. In other words, the provision is not aimed at the party whose conduct is such that the proceedings are vexatious in effect even though not in intent.”
[28] In other words, it occurs to me that these words mean that the party allegedly acting vexatiously or frivolously must act in a manner that is in all the circumstances of the case without pure and honourable motive; one that is entirely groundless; without proper foundation and singularly designed to trouble, irritate, irk, incense, anger, provoke, pique and serve to disturb and vex the spirit of the other party.
[28] In the matter of Aussenkehr Farms (Pty) LTD v Namibia Development Corporation Ltd SA 23/2010 [28/03/2012] (Delivered 13/08/2012) para 1, 18 where Ngcobo AJA stated:
“[18] The Court has an inherent power to protect itself and others against an abuse of its process. As was said in Hudson v Hudson and Another, “When the court finds an attempt to use for ulterior purposes machinery devised for the better administration of justice, it is the duty of the court to prevent such abuse”. The power to prevent the abuse of the process of the court is an important tool in the hands of courts to protect the proper functioning of the courts and to prevent the judicial process from being abused by litigants who instituted proceedings to harass their adversaries with vexatious litigation. It prevents the court process from being turned into an instrument to perpetuate unfairness and injustice, and the administration of justice from being brought into disrepute” Tambaoga Shirichena v Namibia Training Authority (LCA 04/2016) [2016] NAHCNLD 81 (23 September 2016). (My Emphasis).
[29] If one then returns to the facts of this case it becomes clear – and even if I accept to some degree that the applicant believed in the justice of his cause and also that his plight motivated his belated referral to an extent– that this is a case where the proceedings are without doubt to be considered an abuse, which put the first and second respondents to unnecessary additional trouble and expense, four years after a change of the conditions of service. What aggravates the situation in addition is that the applicant could have withdrawn his application after a sober reconsideration of his position once he had been appraised of the first and second respondents grounds of opposition. In spite of this opportunity he nevertheless persisted doggedly with this urgent application. In all the circumstances, I believe therefore that this is a fit and proper instance where the applicant should lose the protective shield afforded by section 118 against a costs order.
[30] Having considered section 118, I am of the view that the applicant acted in a ‘frivolous or vexatious manner’. I find no reason why the costs should not follow the result in this matter, I therefore order that the applicant pay the costs of the first and second respondents.
Hangayika v Amazing Kids Private School Academy (HC-MD-CIV-MOT-GEN-2022-00271) [2022] NALCMD 77 (09 December 2022) Costs