Court name
Labour Court
Case name
Reilly v Clerk of the District Labour court Wavis Bay and Others
Media neutral citation
[2009] NALC 1





CASE NO







SUMMARY REPORTABLE



CASE NO.: LC 19/2007



IN THE LABOUR COURT OF NAMIBIA



RUBETTA JOAN AGNES REILLY
versus
THE CLERK OF THE DISTRICT LABOUR COURT, WAVIS BAY AND OTHERS



Heard on: 2009 January 30



Delivered on: 2009 February 11



PARKER, J



_____________________________________________________________



Statute - Section 18 of the Legal Aid Act (Act No. 29 of 1990)
– State not liable for costs in terms of – Court finding
provisions are clear, unambiguous and plenary peremptory.





Held, Section 18 of Act 29 of 1990 contains provisions that
are plenary peremptory and therefore does not admit of any limitation
or qualification.







Costs - Object of explained – Court finding that in instant
case applicant was granted legal aid in terms of Act 29 of 1990 –
Consequently, Court deciding the applicant did not incur any expenses
for which she may be indemnified.



.



Held, applicant not entitled to award of costs in virtue of s
18 of Act No 29 of 1990.











REPORTABLE







CASE NO.: LC 19/2007







IN THE LABOUR COURT OF NAMIBIA







In the matter between:







RUBETTA JOAN AGNES REILLY APPLICANT



and



THE CLERK OF THE DISTRICT



LABOUR COURT, WAVIS
BAY 1
ST
RESPONDENT



THE CHAIRPERSON OF THE



DISTRICT COURT OF DISTRICT



WALVIS BAY 2ND
RESPONDENT



NAMIBIAN PORTS
AUTHORITY 3
RD
RESPONDENT







CORAM: PARKER, J



Heard on: 2009 January 30



Delivered on: 2009 February 11



_____________________________________________________________



JUDGMENT



PARKER, J



[1] In
this matter the applicant brings an application by Notice of Motion
praying for an order in the following terms:








  1. Directing and compelling the first respondent to,
    within 10 days from date of service of this order, transmit the
    record in the hearing of the complaint under case number 130/2004 to
    the Registrar of the Labour Court, as well as two copies thereof,
    duly certified by the second respondent, together with the amplified
    reasons of the second respondent (if any) referred to in rule 18 (4)
    as contemplated in rule 19 (3) of the Rules of District Labour
    Courts.









  1. Directing further that should the first respondent fail
    to transmit the record as referred to in paragraph 1 above, he/she
    should not be called upon to give reasons why he/she should not be
    held to be in contempt of this Court order and should consequently
    not receive a sentence (albeit) in the form of imprisonment or a
    fine or both.









  1. Directing that the first respondent be held liable for
    the costs of this application de bonis propriis,
    alternatively directing and ordering any other party opposing the
    application to pay the costs thereof jointly and severally together
    with the first respondent, the one paying, the other to be absolved.









  1. Further and/or alternative relief.








I observe here that there is no appearance
for the 3
rd
respondent.







[2] At the commencement of the hearing of
the application, Mr. Strydom, counsel for the applicant, informed the
Court that the applicant had at long last received the aforementioned
record (under Case No. 130/2004) last Tuesday, 27 January last.
Counsel informed the Court further that he had it on authority that
the record was typed on 3 August 2007, proof-read on 19 January 2008
and finally checked on 27 February 2008. Ms Katjipuka-Sibolile,
counsel for the 1
st
and 2
nd
respondents, confirmed the completion of the works on those days. It
was therefore inexplicable, Mr. Strydom submitted further, as I
understood him, that the 1
st
respondent had to wait until 27 January this year to transmit the
record to the applicant; that is, some 11 months after the record was
ready. Mr. Strydom submitted that such conduct on the part of the
1
st respondent was
unacceptable and so, therefore, the 1
st
respondent must be mulcted in costs
de bonis
propriis
.







[3] Thus, in virtue of the developments on
27 January 2009, Mr. Strydom submitted that the only issue left to be
determined in the present application is the question of costs. On
this point, too, Ms Katjipuka-Sibolile agreed with Mr. Strydom.
Nevertheless, Ms Katjipuka-Sibolile argued contrariwise that no costs
order should be made on the basis that the applicant had received
legal aid from the State and so she had not incurred any costs for
which she may be indemnified. In this regard, it must be remembered
that, as a general rule, costs are awarded to a successful party in
order to indemnify him or her for the expense to which he or she has
been put through having been unjustly compelled either to initiate or
to defend litigation, as the case may be. (See
Texas
Co (SA) Ltd v Cape Town Municipality
1926 AD
467 at 488.) Besides, counsel submitted that the Court should decline
to order costs in terms of s 20 of the repealed Labour Act, 1992 (Act
No. 6 of 1992).







[4] It is my view that costs de
bonis propriis
is totally not only
inappropriate, but it is also inapplicable, on the facts and
circumstances of the present case. To start with, owing to staff
turnover at the district labour court, Walvis Bay, the particular
clerk of that court who should have transmitted the record to the
registrar of this Court in terms of rule 19 (3) of Rules of District
Labour Courts is no longer the clerk of that court. That much Mr.
Strydom agrees. Accordingly, to mulct the present clerk of that
court with costs
de bonis propriis
would be monumentally unjust and unfair; and I do not think anybody
would deny that. That much, too, Mr. Strydom appeared to have
appreciated.







[5] From the aforegoing considerations and
conclusions, the enquiry should be taken to the next level. The 1
st
and 2
nd
respondents have been cited
qua
agents of the State. Thus, it is the State, represented by the 1
st
and 2
nd
respondents, that has been cited in the present matter. For that
reason, s 18 of the Legal Aid Act, 1990 (Act No. 29 of 1990) applies
indubitably. Section 18 provides:







18. [(1)] No order as to costs shall be made against
the State in or in connection with any proceedings in respect of
which legal aid was granted and neither shall the State be liable for
any costs awarded in any such proceedings.







It must be mentioned in parentheses that s 18 has no
subsections or subparagraphs and so the notation (1) is a
typographical error and, therefore, it must be disregarded. In the
instant case, the applicant was granted legal aid in the present
proceedings in terms of the Legal Aid Act.







[6] For all the above reasons, and taking
into account the clear and unambiguous words of s 18, which are
formulated in plenary peremptory terms and therefore admitting of no
limitation or qualification, s 18 destroys completely any argument
that costs be awarded against the State, represented by the 1
st
and 2
nd
respondents. It follows that no costs order can or should be made
against the State in the present matter.







[6] In the result, I make the following orders:








  1. By agreement between the parties, the application as
    respects prayers (1) and (2) in the Notice of Motion is withdrawn.



  2. I make no order as to costs.
















________________________



Parker, J







ON BEHALF OF THE APPLICANT: Adv.
JAN Strydom



Instructed by: Neves Legal



Practitioners











ON BEHALF OF THE FIRST AND



SECOND RESPONDENTS: Ms
Katjipuka-Sibolile



Instructed by: The Government Attorney











ON BEHALF OF THE THIRD



RESPONDENT: No
appearance