UASA -The Union and Others v Western Platinum (Pty) Ltd and Others

A Coalition was formed between NUM, UASA and Solidarity for purposes of seeking organisational rights at Lonmin. The Coalition made a request to Lonmin, in terms of section 21 of the LRA, to be granted organisational rights referred to in sections 12, 13 and 15 of the LRA. When Lonmin did not grant the Coalition the requested organisational rights, the Coalition referred an organisational rights dispute to the CCMA for conciliation on 1 March 2018. After unsuccessful conciliation, the dispute was referred to arbitration. On 12 November 2018, the arbitrator issued an award finding that the appellants represent a substantial number of employees at Lonmin and granted them organisational rights, including deductions of trade union subscriptions and levies. AMCU brought a review application against the arbitration award on 23 November 2018, but the award was not stayed. Lonmin made no stop order deductions from the appellants' members in the January 2019 payroll run. The appellants applied for the certification of the arbitration award on 30 January 2019, and it was certified in terms of section 143(3) of the LRA on 4 February 2019. When Lonmin did not comply with the arbitration award due to disputes about membership forms, the Coalition made urgent application to the Labour Court on 12 February 2019 for enforcement of the arbitration award. The Labour Court dismissed the application with costs on 26 February 2019, holding that the appellants should have pursued contempt proceedings instead. Lonmin has been implementing stop order facilities since April 2019, making the substantive appeal moot.

• Whether exceptional circumstances exist to consider an issue of costs on appeal despite the substantive matter being moot
• Whether the Labour Court misdirected itself in making a costs order without providing reasons and without considering the established principle that costs do not follow the result in labour matters
• Whether costs should have been awarded against the appellants in circumstances where they sought enforcement of a certified arbitration award

1. The appeal against costs is upheld with no order as to costs. 2. Paragraph 4 of the order of the Labour Court is set aside and substituted with the following order: "4. There is no order as to costs."

In labour matters, when making an adverse costs order, a presiding officer is required to consider the principle of fairness and have due regard to the conduct of the parties, and may not simply apply the rule that costs follow the result. A court must provide reasons when deviating from the established principle in labour law that costs do not follow the result. The failure to provide reasons supports the inference that the court failed to take into consideration all relevant facts and circumstances, as well as the requirements of law and fairness. Such misdirection constitutes exceptional circumstances within the meaning of section 16(2)(a)(ii) of the Superior Courts Act, justifying an appeal court's interference with a costs order even where the substantive matter is moot. Relevant considerations in determining whether to award costs in labour matters include: (a) whether the applicant approached the court on a mala fides or frivolous basis; (b) the nature of the dispute, including whether it involves questions of legal interpretation; and (c) the existence of an ongoing collective bargaining relationship that will likely survive the resolution of the dispute.

The Court noted that the Labour Court's explanation in its reasons for refusing leave to appeal - that it is a common attribute for a court to grant costs without providing reasons - is unacceptable specifically in the Labour Court, where costs orders are not only governed by the law but also by the requirements of fairness. While this observation was not strictly necessary for the decision, it provides important guidance on the standards expected of the Labour Court in matters involving costs. The Court also observed that 'exceptional circumstances' in section 16(2)(a)(ii) of the Superior Courts Act refers to 'something out of the ordinary and of an unusual nature, something which is excepted in the sense that the general rule does not apply to it; something uncommon, rare or different', endorsing the meaning given to this term in MV Ais Mamas Seatrans Maritime v Owner, MV Ais Mamas and Another.

This case reinforces the important principle established in South African labour law that costs do not automatically follow the result in labour matters. It emphasizes that courts must provide reasons when deviating from this principle and must consider the requirements of law and fairness, as well as relevant factors such as the conduct of the parties, the nature of the dispute, and the ongoing relationship between the parties. The judgment clarifies that the failure to provide reasons for a costs order in a labour matter constitutes a misdirection of law and that such misdirection can constitute exceptional circumstances justifying the hearing of an appeal on costs only, even where the substantive matter is moot. It confirms the application of section 16(2)(a)(ii) of the Superior Courts Act in the labour law context and provides guidance on what may constitute 'exceptional circumstances' warranting deviation from the general rule against hearing moot appeals.