Robson Mundanga v RioZim Cam & Motor Mine

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGEMENT NO. LC/H/251/2020
HARARE, 21 OCTOBER 2020
CASE NO
---------




IN THE LABOUR COURT OF ZIMBABWE    JUDGEMENT NO. LC/H/251/2020

HARARE, 21 OCTOBER 2020				CASE NO LC/H/REV/42/20

AND 6 NOVEMBER 2020

In the matter between:-

ROBSON MUNDANGA                                                           APPLICANT

And

RIOZIM CAM & MOTOR MINE                                            RESPONDENT

Before CHIVIZHE, J;

For Applicant: 	Mr I. Murambasvina (Legal Practitioner)

For Respondent: 	Ms J. Mushunje (Legal Practitioner)

CHIVIZHE, J:

On the date of the hearing the Applicant made an application for withdrawal with costs on an ordinary scale. The Respondent having objected the court handed down an extempore ruling. Thereafter an order as follows was granted.

“IT IS ORDERED THAT

The application filed under LC/H/REV/42/20 be and is hereby withdrawn.

The Applicant shall pay costs on a higher scale.“

On 2nd October 2020 the Applicant Legal Practitioner wrote to the Registrar of court requesting for a copy the order as well as the written reasons for the said order. He indicated in the same letter his intention to appeal against this court’s order of punitive costs. The following constitutes my reasons for the order of punitive costs as granted.

By way of background the matter was filed with this court as an application for review. The application was filed on 25 June 2020. On the 10th of July 2020 the Respondent filed its Notice of Response. In its Opposing Affidavit the Respondent raised several defects with the application. Firstly, that, whereas the Rules required an application for review to be on Form L.C. 5 with an accompanying affidavit, the instant application had been filed on a ‘Form C4’ which is alien to the rules; secondly as the application was not filed on Form L.C. 5 there was consequently no accompanying sworn affidavit filed attesting to the facts giving rise to the review application. Thirdly, Respondent noted that aside from the procedural defects outlined above the Applicant had also strangely attached instead of facts giving rise to the application for review, an Annexure “A” which was clearly listing “Grounds of Appeal”. On this basis the Respondent raised the point of the application before the court being vague and embarrassing to the extent the Respondent was not clear as to which case it was supposed to respond.

The parties filed and served each other with the Heads of Arguments. In Respondent Head of Arguments the issue of the defects in the application was again reiterated. The Respondent again pointed to the vague and embarrassing application before the court. Needless to point out the matter proceeded headlong to the next stage the Applicant not having reacted in any way. The matter was set down for hearing.

On the date of hearing the parties appeared. The applicant attended with his Legal Practitioner, Mr Murambasvina. Mr Murambasvina then indicated that, after going through the Respondent’s Heads of Argument he was now withdrawing the application and tendering costs. Ms Mushunje, for the Respondent, then submitted that the matter clearly warranted an order of costs on the higher scale. This was in view of the history of the matter. The Applicant had been advised through Respondent’s Notice of Opposition of the defects in his application. The Applicant had further been notified through Respondent’s Heads of Argument of the same point. The Applicant had however proceeded headlong with his application resulting in the matter being set down. The Respondent had made an appearance thus incurring further unnecessary costs. Ms Mushunje further noted that it was the general position that costs are discretionary on the court. In circumstances however where a party had conducted itself then an award of costs on the punitive scale is warranted. Ms Mushunje placed reliance on authorities in Herbstein and Van Winsen: The Civil Practice of the High Courts & Supreme Court of Appeal of South Africa 5th Edition and Professor AC Cilliers, CR Cilliers and M Cilliers : Law of Costs  2nd Edition. On this basis Ms Mushunje submitted that the Respondent was insisting on costs on a higher scale.

Mr Murambasvina, for the Applicant noted that whilst it was indeed within the discretion of the court to award costs on a higher scale in any matter, the circumstances in this matter however did not justify such an award. It had to be emphasised that the Applicant had withdrawn the defective application after it became apparent to him upon perusal of Respondent Heads of Argument that the application was defective. Although the point had initially been raised in Respondent Notice of Opposition the Applicant had persisted with the matter in a bid to ensure he obtained justice in the matter. Mr Murambasvina, also emphasised on the fact that Applicant had himself withdrawn his application. The court had not been forced to raise the issue mero motu. On this basis higher costs were clearly not warranted. His prayer was that the court grant an order of costs on the ordinary scale.

Legal Practitioner and Clients Costs?

Rule 39 of the rules of this court provides that;

39. Costs

(1) The Court or Judge, in giving judgment or making any order, may make such order as to costs as it thinks just and equitable.

(2) The costs of any appeal, application or review by the parties may be —

(a) awarded by the Court or Judge irrespective of the judgment in the cause; or

(b) made costs in the cause; or

(c) reserved to be dealt with at the conclusion of the action.

(3) If the court or a judge considers that the conduct of a party to an appeal or application under these rules has been such as to warrant such a course, the court may make any one or more of the following orders—

(a) depriving a successful party of all or part of his or her costs in the appeal or application and additionally, or alternatively, in the tribunal below;

(b) ordering a successful party to pay all or part of the costs of the other party in the appeal or application and additionally, or alternatively, in the tribunal below;

(c) ordering a party to pay costs on a legal practitioner-and-client scale or any other appropriate scale.

It is trite that the Labour Court has power to order/award costs on a punitive scale in terms of Rule 39 (3) (c) referred to above. In awarding the costs the court will consider the conduct of a party. The rules do not specify the circumstances when punitive costs may be awarded. The general rule is that courts may make orders of punitive costs such as costs on an attorney and client scale where it is believed to be appropriate to do so. Factors to be considered as to whether or not to grant punitive costs orders include where the conduct of the party –

(a) is vexatious and amounts to an abuse of legal process, even though there is no reason to be vexatious;

(b) lack of bona fides.

(c) is reckless, malicious and unreasonable.

It is also an established principle that a court will not order a litigant to pay costs of another litigant on the attorney and clients scale unless there are special grounds justifying this. Such grounds have been found to be present in cases where litigants have been found to be guilty of dishonesty or fraud or where their motives have been vexatious, reckless, malicious or frivolous or where they acted unreasonably in the conduct of the litigation or where their conduct has been in some way reprehensible. See Eramus Superior Court Practice at E12-20. The principle above has also been relied upon in the Supreme Court in labour matters. See for instance Eunice Madondo vs Conquip SC 25/16 where the Supreme Court stated as follows;

“Mr Foroma, for the Respondent claimed costs on the legal practitioner and clear scale on the basis that the appeal is entirely without merit. The court was satisfied on this basis and the clearly demonstrated dishonestly on the part of the Appellant that there was merit in Mr Foroma’s submissions. The Appellant must have known that the appeal had no merit but nevertheless persisted with it, all, the way to this court. In the process she put the Respondent to the unnecessary expense of defending litigation.“

The Applicant in this case was also represented by a Legal Practitioner. After filing the application and upon receipt of the Notice of Opposition it clearly ought to have been known by Applicant, through his legal practitioner that he had filed a defective application. The Applicant, through his legal practitioner however took no steps to rectify that situation. The Applicant instead proceeded headlong with the same application as presented. He proceeded to file Heads of Argument. When the Respondent filed Heads of Argument it ought to have once again raised a red flag to his legal practitioners that the application was not only defective but was also clearly carrying no merit. The Applicant still failed to do anything. Ultimately when the application was finally set down the Applicant then appeared with his legal practitioner and he sought to withdraw the application for review. Needless to point out he only did so at the eleventh hour.

All these facts taken together point to a not so serious litigant. There must have been a point where his legal practitioner ought to have known that the application was going nowhere. They persisted with the matter resulting in the Respondent incurring further unnecessary costs in the matter including a court appearance. It was my considered view that the Applicant’s conduct through his Legal Practitioner was unreasonable and vexatious and that a costs order on the legal practitioner and client scale was therefore warranted. The Labour Court Rules, Statutory Instrument of 2017 actually provide for two instances when an application can be withdrawn. A matter can be withdrawn before the hearing under Rule 27 (1) whereas a matter set down can be withdrawn at the hearing Rule 27 (3) refers. It was my considered view Applicant’s persistence with the application was unreasonable in view of the unsustainability of this application. By withdrawing the matter earlier utilizing the provisions in Rule 27 (1), the Respondent would not have incurred further and unnecessary legal costs.

It was on this basis I then granted an order in terms as referred to supra.

Murambasvina Legal Practice, applicant’s legal practitioner

Devitte Rodolph & Timba, respondent’s legal practitioner