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MASUKU, J:
Introduction
The sole question confronting this court in this ruling, is whether the applicant, the Council for the Municipality of Gobabis, is entitled to an order for costs in this matter.
In order to appreciate the circumstances in which the question arises, it is necessary to have regard, albeit briefly, to the relevant facts briefly. I deal with those facts below.
Background
By notice dated 24 July 2024, the applicant issued an application for review. In the said application, it sought an order reviewing, correcting and setting aside the decision of the second respondent taken on 24 June 2024 under case number CR GB 66 – 19. The applicant further sought an order that the matter to be referred back to the Labour Commissioner for allocation to another arbitrator.
As respondents are entitled to at law, the first respondent Mr Steve Evon Adonis, filed a notice of intention to oppose through his legal practitioners. The notice to oppose is dated 20 August 2024. The review record was thereafter uploaded by the applicant.
On 17 October 2024, the court issued an order calling upon the applicant to file its amended notice of motion and supplementary affidavit, if so advised on or before 25 October 2024. The respondent was ordered, if so advised, to file the answering affidavit on or before 15 November 2024. The applicant was in that event, ordered to file its a replying affidavit, if any, on or before 22 November 2024. The parties were further ordered to file a proposed case management report on or before 29 November 2024. The matter was then postponed 2 December 2024, for a case management conference hearing.
It is beyond disputation that the first respondent, although he initially opposed the application for review, did not file his answering affidavit as ordered by the court. It would seem that he took the position that there was no need to oppose the relief sought by filing an answering affidavit in response to the application. The order sought by the applicant was granted without the respondent having lifted a finger in opposition of the matter, beyond filing his notice to oppose.
The applicant contends that in the circumstances, it has been placed out of pocket by the first respondent’s decision to oppose the matter. It accordingly moves this court to grant an order for costs in its favour in order to enable it to recover some of the costs it incurred as a result of the opposition of the application for review by the first respondent.
As intimated earlier, the question to decide is whether when the full conspectus of the facts giving rise to this matter are taken into consideration, this is a proper case in which an order for costs should be issued by the court in the applicant's favour?
Discussion
A few issues must be placed in perspective. Chief of these is that this is an application moved by the applicant in the realms of labour law. This is important to mention because of the provisions of s 118 of the Labour Act 11 of 2007. That provision reads as follows:
'Despite any other law in any proceedings before it, the labour court must not make an order for costs against a party unless that party has acted in a frivolous vexatious manner by instituting, proceeding with or defending those proceedings.'
One thing to note from the language employed by the law-giver above, is that the provision is couched in peremptory terms. That this is so, can be gleaned from the use of the words 'must not make in order for costs'. It is in this regard clear that not granting costs is the default position in any labour matter. It is only when the court is satisfied that there are actions or untoward despicable conduct on the part of the party against whom the order is sought that falls within the category of frivolous or vexatious that an order for costs may attract. These actions must be proved to exist in respect of either instituting, proceeding with or defending the proceedings in question.
That being the case, I am of the considered opinion that the court does not lightly issue an order for costs in a labour matter. In Desert Fruit (Pty) Ltd v Smith and Others, the Supreme Court expressed itself on s 118 of the Act, in the following language:
'The statutory of intention behind s 118 was that costs would not ordinarily be awarded in proceedings before the labour court and to permit the parties "a measure of freedom" in litigating "without them being unduly hampered by the often inhibiting factor of legal costs." That is the principle governing proceedings in the labour court. The exception is where a party "acted" in a frivolous or vexatious manner by instituting or carrying or defending those proceedings. Without making any finding that this threshold has been met, in order for costs may not be made.'
The words frivolous and vexatious were explained by the court in Shoprite Namibia v Namibia Commercial Food and Allied Workers. In dealing with the meaning of these words, the court said the following: '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 and Others 1979 (3) SA 1331 (W), Nicholas J, is 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'".
Ms Gebhardt, for the applicant, submitted that the notice to oppose filed by the first respondent, was vexatious or frivolous because after opposing the application, the first respondent did not follow its opposition through. The said respondent, without sufficient grounds, intended to frustrate or cause an annoyance to the applicant, so the argument ran. She submitted that having opposed the application, the first respondent failed to file an answering affidavit and also did not withdraw his intention to oppose the application.
Does this conduct, standing on its own, reach the high threshold of either vexatious or frivolous conduct? I think not. Any party, who has been served with proceedings, has a right to file a notice of intention to oppose or defend, as the case may be. In many instances, this is a precautionary step taken in order to preserve the rights of that party and affords that party a foothold in the proceedings, whilst taking full legal advice. That sometimes includes the views and advice of instructed counsel, as to whether answering papers should be filed.
This is because if a party does not immediately file a notice of intention to oppose, its right and foothold in the matter, may be swept away by the tide of time. By the time legal advice is rendered, one might find that the time for filing papers has already elapsed. In this way, the critical step that defines whether a matter has in effect been factually opposed, is when the answering affidavit is filed. Where that affidavit is filed and it becomes clear that the respondent did so without sufficient ground than two vex or irk the applicant, the court may draw the inference that that party is acting frivolously or vexatiously and may depart from the provisions s 118.
The fact that a respondent in a labour matter has unsuccessfully opposed the relief sought on the merits, does not necessarily entitle the applicant to an order for costs. The Act does not ordinarily penalize an unsuccessful party by ordering them to pay costs. There must be a layer of vexatious or frivolous action or conduct above the mere unsuccessful opposing of the relief sought to attract an adverse order as to costs.
I am of the considered opinion that it would be harsh in the extreme to penalise a party who may file a notice to of intention to oppose but does not proceed to actually file and answering affidavit in opposition. The answer, is in any event, to be found in the name of the document, namely an 'intention to oppose'. It is not the actual opposition of the relief sought. The non-filing of the actual opposing affidavit may be informed by the fact that on a mature consideration of the matter, there is no merit in opposing the application by filing an opposing affidavit. Should a party, who takes legal advice and decides that it would be improper to file an answering affidavit in opposition in a labour matter, then be mulcted in costs? I think not.
It is my considered view that what the first respondent did in this matter, was nothing out of the ordinary. It was certainly an action far from being considered as vexatious or frivolous by any standard. To penalise parties who merely file notices of intention to oppose, by adopting the debilitating step of mulcting them in costs, much against the provisions s 118 of the Act, would be a tragedy. More importantly, it would have a chilling effect on parties who, after considering the matter soberly, find it proper not to file papers in opposition. Such parties should not be penalised, as to do so would be to go against the clear intention of the legislature. There is, in my considered view, no need for a party to withdraw its notice to oppose an application. If it does not file an answering affidavit or a point of law, it is regarded as not having effectively opposed the matter.
For the reasons mentioned above, I come to the conclusion that the applicant's application for an order for costs to be awarded against the first respondent, is inappropriate. It goes against the clear intention of the legislative solicitudes, as there is no conduct on the part of the first respondent that resembles what can be regarded as frivolous of vexatious in all the circumstances of this case.
In the premises, I find that the following order is appropriate:
There is no order as to costs. The application is removed from the roll and is regarded as finalised.
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