application for leave to appeal - costs order - Labour Court - Cape Town
SERI represents an unaffiliated union – the Commercial Stevedoring Agricultural & Allied Workers’ Union (CSAAWU) - in an appeal to a costs order handed down by the Cape Town Labour Court in June 2014. The costs order was made in a matter arising from an incorrect referral of an unfair dismissal complaint to the Court, which CSAAWU admits was the case. The union has since assisted the eleven workers represented in the case to get their jobs back at the Steytler Boerdery by approaching the Commission for Conciliation, Mediation and Arbitration (CCMA).
While the presiding Judge in the Labour Court found the workers to be “indigent”, he reasoned that CSAAWU would be able to satisfy the costs order even though the workers clearly could not. He accordingly ordered all the applicants to pay Steytler’s costs, jointly and severally, the one paying the other to be absolved.
In the application for leave to appeal CSAAWU argues that the costs order should never been made against the workers, because there was no dispute that they are unable to satisfy it and because the real intention behind it was to cause the union to pay Steytler’s costs. CSAAWU further argues that the order will effectively preclude the workers from approaching the Labour Court in future, for fear of the financial consequences. The union argues that it is, in fact, unable to satisfy the costs order against it and would effectively cease to function as an active force in organising and representing farm workers in the Western Cape, some of South Africa’s poorest and most vulnerable individuals. CSAAWU accepts that it is not generally permissible to entertain an appeal against cost orders alone; however as the Constitutional Court has made clear in the Biowatch case, where an appeal against a costs award raises other questions relating to the public interest, the interests of justice will demand that it be entertained.
After the Labour Court refused leave to appeal, CSAAWU petitioned the Labour Appeal Court in April 2015. CSAAWU also applied to the Constitutional Court in June 2015 for leave to appeal the Labour Courts costs order. On 14 August 2015 the Consitutional Court dismissed the application.