The
background to the application is briefly as follows.
On 9lh
August, 1996 the applicant lodged a complaint against the second
respondent in the District Labour Court. Thereafter, the hearing of
the complaint was postponed on several occasions. On 16th
October, 1998 the Chairman of the District Labour Court took the
view that the applicant had come to court unprepared despite a
previous warning to both parties that they should be fully prepared
for trial. He postponed the hearing and ordered the applicant to pay
the wasted costs on an attorney and client scale such costs to be
paid before the resumption of further proceedings.
On 23rd
November, 1998 the applicant lodged an application for the review of
the costs order asking that it be set aside. This application was
dismissed by the Labour Court and thereafter the applicant sought
leave to appeal. This application also met with no success but,
undeterred, the applicant petitioned the Chief Justice for leave to
appeal. This application was successful and on 9th
August, 2000 the applicant was granted leave to appeal to the Full
Bench of the High Court. However, there remained a further hurdle in
her way, namely Rule 49(13) of the High Court Rules. This Rule
provides:
"(13)
Unless the respondent waives his or her right to security, the
appellant shall, before lodging copies of the record on appeal with
the registrar, enter into good and sufficient security for the
respondent's costs of appeal, and in the event of failure by the
parties to agree on the amount of security, the registrar shall fix
the amount and his or her decision shall be final."
Having
lodged a notice of appeal, the applicant's legal practitioners then
wrote to those acting for the second respondent asking that the
second respondent waives its rights to security. They explained that
the applicant could not afford to pay the amount of security which
was likely to be fixed. They also asked the second respondent's
legal practitioners to indicate the amount which they considered
sufficient security for their costs of the appeal. On 1st
September, 2000 the second respondent's legal practitioners replied
stating that their client was not prepared to waive its rights to
security and proposed an amount of N$12 000,00 as sufficient
security.
In her
founding affidavit the applicant states that she was unemployed from
17* February, 1997 when she was dismissed from her employment with
the second respondent until 15th
May, 2000 when she commenced employment with a firm called Riteware.
She states that her basic salary is NS1 000,00 (presumably per
month) and there is scope for commission to be earned. However,
commission depends on first building up a clientele and she
anticipated that commission would not be paid until 2001. She
further avers that her basic salary is barely sufficient to cover
her living expenses and her daily travel from Windhoek. As for
assets, she states that these have been attached pursuant to a
warrant issued in respect of the costs order made by the District
Labour Court and the warrant still has not been fully satisfied. She
avers that she is not able to furnish security in the amount of N$12
000,00, which she admits is a reasonable amount for the second
respondent's costs of appeal, or, for that matter, any such security
and by virtue of the peremptory terms of Rule 49(13) is accordingly
barred from proceeding with her appeal.
One other
matter raised by the applicant in her founding affidavit concerns
the position of the second respondent should her appeal be
unsuccessful. She says that in this eventuality the second
respondent could make application for an emoluments attachment order
to recoup its costs.
In its
answering affidavit the second respondent seizes upon what is stated
by the applicant with regard to an emolument attachment order. It
states that this is in contradiction of the applicant's averment
that she is unable to furnish any security at all. However, that is
not how I read the applicant's affidavit. What she is saying is that
at the time of making the affidavit she had no means of providing
sufficient security but at some future time if, as she anticipates,
she earns commission, she will be in a position to pay something
towards the second respondent's costs by instalments. In my view,
there is no real merit in the second respondent's contention that
the applicant has not shown that she is unable to furnish security
for the second respondent's costs of appeal.
A further
point raised by the second respondent in its answering affidavit and
pursued by Mr Dicks, who appeared for the second respondent, in his
heads of argument as a point in
limine is
that the applicant failed to apply to the Registrar to fix the
amount of security. It is suggested that in the circumstances of the
present case that was a necessary prerequisite to seeking the relief
sought in the notice of motion. I do not agree. What emerges from
the affidavit evidence is that the parties were ad
idem as
to what a sufficient amount of security should be. There was no
reason for aDolication to be made to the Registrar. It is highly
unlikely that he would have fixed an amount of security less than
that regarded by both parties as reasonable. Any such application
would have been a waste of time and costs.
In my view,
the applicant has established an interest to apply for the relief
sought in the first prayer of the notice of motion and the question
to be addressed is whether that relief should be granted. All three
respondents join with the applicant in saying that it should. They
rely in the main on Shepherd
v O We/7/
and
Others 2000
(2) SA 1066 (N).
That case
concerned the constitutionality of Rule 49(13) of the South African
Uniform Rules of Court which, until it was amended as a consequence
of the Court's judgment, was couched in identical terms to our Rule
49(13). The applicant sought an order declaring the provisions of
Rule 49(13) to be unconstitutional, invalid and of no force and
effect. He claimed that he was not in a financial position to
furnish the amount of security fixed by the Registrar, a claim
accepted by Combrinck, J. who heard the application. The basis of
the application was then described by the learned judge in the
following words at 1068 B-D:
"The
applicant alleges in the application that it is inequitable and a
gross injustice that a person in his position should have to find
and establish security (which he cannot) in order to pursue his
rights of access to a Court of law (particularly following upon an
order given by the Supreme Court of Appeal). He submits that he is
effectively being barred access to a Court of law, which is in
direct contravention and conflicts in its entirety with the
provisions of the Constitution of the Republic of South Africa Act
108 of 1996. The provision he relies upon is s 34, which reads as
follows:
'Everyone
has the right to have any dispute that can be resolved by the
application of law decided in a fair public hearing before a Court
or, where appropriate, another independent and impartial tribunal or
forum.'
The case for
the applicant in the application before us is much the same except
that she relies on
Article 10
of the Constitution as well as Article 12(l)(a). Article 10 reads:
""10(1)
All
persons shall be equal before the law.
(2)
No
persons may be discriminated against on the grounds
of sex,
race, colour, ethnic origin, religion, creed or social or economic
status."
And the
material part of Article 12(l)(a) reads:
" 12( 1
)(a) In the determination of their civil rights and obligations or
any criminal charges against them, all persons shall be entitled to
a fair and public hearing by an independent, impartial and competent
Court or Tribunal established by
law "
As already
indicated, all parties in the present application are agreed that
the provisions of Rule 49(13) are inconsistent at least with Article
12(l)(a) and, as a result, we have been presented with a one-sided
argument. This is seldom a satisfactory situation. However, in the
Shepherd
case
[supra)
the
Court was presented with full argument by counsel for the
respondents on the constitutionality of the Rule and that argument
was, if I may respectfully say so, comprehensively considered and
dealt with by Combrinck, J. in his judgment.
The main
point argued by counsel for the respondents in Shepherd's
case
(supra)
was
that Rule 49(13) is saved from constitutional invalidity by the fact
that under Rule 27(3) (identical to our Rule 27(3)) the Court has a
wide and unfettered discretion whether or not, in an appropriate
case, to absolve the would-be appellant from its consequences.
Having referred to a number of cases cited by counsel, Combrinck, J.
said at 1072 J - 1073 B:
"In my
view, Rule 27(3) was not designed for the purpose ascribed to it by
Mr Hunt. It was designed to assist the litigant who at all times had
intended to comply with the Rule but for some or other reason had
failed to do so. It was not intended to allow the Courts in advance
to in effect exempt a litigant from complying with a requirement of
substance such as I am dealing with in the present case. In any
event, the question to be answered is whether the provisions of Rule
49(13) are in conflict with s 34 read with s 8 of the Constitution.
If it is found to be so, then it seems to me to be illogical to
retain it in its present form and console would-be appellants with
the remedy of possible exemption from its provisions by virtue of
Rule 27(3)."
1
respectfully agree with the opinions expressed by the learned judge
in this passage. It could never have been intended that Rule 27(3)
could be used to relax the requirements of another Rule in the case
of a particular class of litigant. If an appellant cannot properly
enter through the front door of Rule 49(13) he should not, in my
view, be allowed to enter through the back door of Rule
27(3).
In his
judgment, Combrinck, J. referred to the position in England
regarding security of costs on appeal as governed by the Rules of
the Supreme Court and the position in South Africa regarding
security required from aperegrinus
applicant
and from a bankrupt company,. The learned judge concluded his
judgment by saying at 1073 C-E:
"It is
clear from what is set out earlier in this judgment, that in
virtually every case where security is demanded of a litigant, the
Court has a discretion whether to order that such security be put
up. As matters stand at present in terms of Rule 49(13) the Court
has no power to either exempt an appellant from putting up security
or to interfere with the amount fixed by the Registrar. There is
much to be said for protecting a respondent in an appeal from an
impecunious appellant who drags him from one court to the other. On
the other hand to in effect bar access to a Court of appeal because
a deserving litigant is unable to put up security appears to me to
be unfair and in conflict with the provisions of the
Constitution.
The conflicting rights of the litigants can, in my view, be
adequately safe-guarded were the Court to be vested with the power
to determine, in the exercise of its discretion, whether a
particular appellant should be compelled to put up security and in
what amount. To the extent that Rule 49(13) does not embody that
power I consider it to be in conflict with the Constitution and to
that extent invalid."
I
respectfully adopt that conclusion and can add nothing useful to it.
In my judgment, Rule 49(13), as it presently stands, is inconsistent
with the provisions of Article 12(l)(a) of the Constitution to the
extent that it does not vest in the Court a discretion to exempt
wholly or in part an appellant from compliance therewith. It is
unnecessary to consider the effect of Article 10.
Article 25
of the Constitution deals with the enforcement of fundamental rights
and freedoms. Sub-Article (1) provides, inter
alia, that
any subordinate legislative authority shall not make any law which
abolishes or abridges fundamental rights and freedoms
" and
any law in contravention thereof shall to the extent of the
contravention
be invalid: provided that:
(a) a
competent Court, instead of declaring such law .... to be invalid,
shall have the power and the discretion in an appropriate case to
allow any
subordinate legislative authority .... to correct any
defect in
the impugned law within a specified period, subject
to such
conditions as may be specified by it. In such event and until such
correction, or until the expiry of the time limit set by the Court,
whichever be the shorter, such impugned law .... shall be deemed to
be valid."
In my
opinion, the discretion conferred on this Court by Article 25(l)(a)
should be exercised so as to allow the Judge-President who, in terms
of section 39 of the High Court Act, No. 16 of 1990 is the
Rule-making authority, to correct Rule 49(13) by making the
necessary amendment.
This will
avoid any hiatus in a procedure which is only to a limited extent
unfair.
Following
the decision in Shepherd's
case
(supra)
the
South African Rules Board amended their Rule 49(13) and for the
assistance of the Judge-President I set out the amended South
African Rule:
"(13)(a)
Unless the respondent waives his or her right to security or the
court in granting leave to appeal or subsequently on application to
it, has released the appellant wholly or partially from that
obligation, the appellant shall, before lodging copies of the record
on appeal with the registrar, enter into good and sufficient
security for the respondent's costs of appeal.
(b) In the
event of failure by the parties to agree on the amount of security,
the registrar shall fix the amount and the appellant shall enter
into security in the amount so fixed or such percentage thereof as
the court has determined, as the case may be."
The parties
are agreed that in the circumstances of this case there should be no
order as to costs. Ms Conradie, who appeared for the applicant, did,
however, ask that the relief sought in prayer
2 of
the notice of motion be kept open so that the applicant can, if so
advised, pursue that head of relief in the light of any amendment
which may be made to Rule 49(13). That part of the notice of motion
will, therefore be postponed sine
die but
it may be that the applicant will best be advised to launch a fresh
application if the Rule is amended.
For the
foregoing reasons the following order is made:
Louw v Chairperson District Labour Court Windhoek and Others (A. 359/2000) [2001] NAHC 11 (29 March 2001);