It is important to know whether the person representing a trade union is properly authorised to do so.   In 2013 justice Steenkamp in the Labour Court in Cape Town refused an application, purportedly made by a trade union, to review and set aside a CCMA arbitral award made in favour of an employer and awarded costs as between attorney and client.   From the court papers it appeared that the trade union was acting for a former employee and represented by an official.   The bill of costs was taxed in an amount of R 226 921.94 and an attempt was made to execute the order for costs and attach the trade union’s property.   The trade union denied liability and applied to the Labour Court in Johannesburg to stay the execution contending that the individual who appeared in the Labour Court in Cape Town was not authorised to do so by the trade union.

Yesterday in Hotellica v The Sheriff, Johannesburg  (J406/14) [2014] ZALCJHB 214 (24 June 2014) justice Lagrange stayed the execution of the writ pending the outcome of an application by the trade union to rescind the cost order, with the proviso that the order will lapse automatically if the trade union fails to file the rescission application by 24 July 2014.

Extracts from the judgment with footnotes omitted

[4]          Apart from disputing that the union had acted in any capacity in the review application in question, the union submitted that, as a matter of law, the cost order was not made against itself as such, but against the individual applicant, Groenewald.   In so far as the union had been correctly cited as acting on her behalf, which it disputed, that could only have been construed as acting in a representative capacity in terms of section 200(1)(b) of the Labour Relations Act 66 of 1995 (‘the LRA’).   In the absence of the court having made a cost award against the union de bonis propriis, the cost award would not be enforceable against the union even if it had been acting in terms of s 200(1)(b).

[5]          The judgment handed down by the honourable Justice Steenkamp, J on 31 May 2013 appears to have been an ex tempore one and merely recorded that the review application was “dismissed with costs on an attorney-client scale”.   There is no mention on the face of the judgment that the cost order was made de bonis propris (sic).   However the respondents claimed that the order of costs on an attorney-client scale was “a direct result of the conduct of the union and the union official, a Mr Khaya Somdyala”.

[6]          The respondents further contended that Mr Somdyala was a recognised union official and representative of the union as evidenced by various arbitration awards handed down by the CCMA in Cape Town.   In support of this contention the respondents submitted arbitration awards dated 15 July 2002 and 17 May 2013 in which he was cited as the union representative from Hotellica.   In reply, the union claimed that Somdyala or ‘Somtyalo’ had resigned from the union in 2004 and did not act as an official of the applicant thereafter.

[7]          The union’s replying affidavit ostensibly attaches “the award” alleging that the address used by ‘Somtyalo’ was not the same address as the union’s Cape Town offices which are situated at Premier Centre, Victoria Road, Observatory.   It appears from the affidavits and a letter attached to the respondents’ answering affidavit that a written request was indeed made by the union to the third respondent, the second respondent’s attorneys of record, to provide details of the address it had used to address documents to Hotellica in the course of the review application, went unanswered.   No explanation for the apparent lack of response to this request was provided by the third respondent.   Although the award in question which gave rise to the review application was not provided by either party, other awards in which Somdyala appears to have represented employees, ostensibly on behalf of the applicant, do indicate that the address he used for communications with the CCMA was 7th Floor, 106 Adderley Street, Cape Town.

[8]          Although, the applicant could have provided more corroboratory material about its actual office address in Cape Town, it does appear from the affidavits that the address used by the putative official Somdyala, when he corresponded with the CCMA is a different one.   In my view this does raise a genuine concern whether or not this individual was fraudulently holding himself out as an organiser of the applicant and appearing in CCMA and court proceedings.   Given the apparent frequency of his participation in arbitration proceedings, judging from the CCMA awards lodged in the court file, in which his name appears as a union representative, and given that he operates using an identifiable address, it must be said that the applicant appears to have been quite remiss in failing to try and rectify matters by notifying the CCMA and the Labour Court that Somdyala or ‘Somtyalo’ is not an official of the union.   It could have done a lot more than merely conduct investigations by this stage.

[9]          Nonetheless, the applicant has raised sufficient doubt in my mind that the person appearing in the Labour Court proceedings under consideration was an official of the applicant who was entitled to appear in its name as a representative of the applicant’s members in the Labour Court.   If Steenkamp, J had been aware of these question marks over Somdyala’s status at the time he dismissed the review application it is possible that he might well have issued a different cost order, irrespective of the merits of the review application.

[10]        If there was no doubt about Somdyala’s identity as an official of the applicant and that the union had acted in some capacity in the matter, would the cost order necessarily have been enforceable against the union as a party to the proceedings in its own right, or could it contend that in acting ‘on behalf of’ Groenewald, it would simply have been performing the same role that might be performed by an attorney acting on behalf of an employee who has initiated review proceedings? . . . .

[13]        The applicant submits that when a union acts on behalf of a member under s 200(1)(b), it is not a party to the proceedings but appears purely in a representative capacity.   However, the weight of Labour Court authority  relying on the judgment of Sutherland, AJ as he then was in Manyele’s case is that:

“This role of the official  [as a representative of the member in terms of s 161(c)] is to be contrasted with the role of the union itself when it is a party to proceedings, as contemplated in s 200(1)(b ) ‘on behalf of any of its members’ (emphasis added)”

[14]        If there was no material dispute about Somdyala’s identity as official of the applicant at the time he appeared or the applicant’s participation in the proceedings, I would be inclined to agree that, on the interpretation of s 200(1)(b) above, the applicant would be a party to the proceedings and would be liable for costs in the review application.

[15]        However, on the papers before me, which frankly leave much to be desired in terms of properly canvassing the material issues in sufficient detail, I am not satisfied that there is sufficient evidence for the Court to determine the true status of Somdyala as an official of the applicant or whether the applicant was acting in some capacity in the proceedings.   While there is some basis for doubting that he was representing the applicant as a party in the review proceedings, I am not satisfied that the evidence for and against his representative capacity has been adequately canvassed in the papers before the court.   I am also mindful that the monetary value of the cost award is far from trivial and it is important to both parties to obtain a final resolution on the matter.

[16]        In the circumstances, though I believe there is reason to be concerned about whether the union ought to have been mulcted with costs in the matter, I do not wish to deprive the respondents of the cost order if there is no reason for the order not to have been granted.   This might ordinarily be one of those rare instances in which the court mero motu refers the matter to oral evidence.

[17]        However, it appears that the any judgment I might make in these proceedings would effectively entail second guessing whether the cost order made by Steenkamp J ought properly to have been granted, bearing in mind that, on the face of the order it could be enforced against the union in light of the interpretation of s 200(1)(b) above.   In effect, the applicant is saying that the order was erroneously granted in its absence as an affected party.    The appropriate procedure for dealing with that is by way of a rescission application under s 165 of the LRA, even though an interim interdict may have been warranted to stay the writ on an urgent basis pending the final determination of the union’s claim that Somdyala effectively misrepresented its involvement in the matter.

[18]        In light of the above, it is apparent that it is not an alleged defect in the writ which the applicant seeks to rely on to set it aside but an alleged problem with the underlying causa for the writ, which is the cost order itself.   It would be inappropriate for the reasons stated, for this court to determine that in these proceedings, but at the same time, the applicant has raised sufficient doubt in my mind about whether the cost order against it ought properly to have been made.   It seems more appropriate therefore to stay the execution of the writ pending the determination of the real cause of complaint in the proper forum, rather than granting and order which indirectly has the effect of placing the legal validity of the order in doubt.

[19]        An order to give effect to this appears to me, to be the competent alternative relief on the evidence before me, coupled with suitable protection of the respondents’ interests.