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 application for leave to appeal against a costs orders handed down by the Cape Town Labour Court in July 2014. The order was made in a matter wherein CSAAWU, after a full-blown trial, was unsuccessful in challenging the dismissal of three workers who were, prior to their dismissal, punished with hard labour for going on strike.
While the presiding Judge 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 the farmers’ costs, jointly and severally, the one paying the other to be absolved.
In the applications for leave to appeal CSAAWU argues that the costs orders should never been made against the workers, because there was no dispute that they are unable to satisfy them and because the real intention behind the orders was to cause the union to pay La Maison's costs. It also says that irrelevant considerations were taken into account when making the costs order, while crucial questions relating to the awarding of costs in labour law matters were ignored. CSAAWU further argues that the order will effectively preclude the workers from approaching the Labour Court in future, for fear of the financial consequences, in a sector and area where union density and therefore access to protective labour legislation is already low. 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 and the Labour Appeal Court refused leave to appeal, CSAAWU applied to the Constitutional Court for leave to appeal in June 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.