South Africa: Labour Court

IN THE LABOUR COURT OF SOUTH AFRICA

HELD AT JOHANNESBURG

CASE NUMBER J 13/98

In the matter between :

DLHAMINI VELA AND OTHERS Applicant

and

DURBAN DEEP WHOLESALE MEAT SUPPLY Respondent

JUDGEMENT

ZONDO J:

[1] On the 8th January 1998 my colleague, Revelas J heard an application which had been brought by the applicants against the respondent for an order interdicting the respondent from locking the applicants out and for other relief plus costs. She granted the interdict against the respondent and ordered the respondent “to pay costs of the application.”

[2] The matter now comes before me in Chambers as an application by the applicant for the review of the decision of the Taxing Master disallowing certain items in the Bill of Costs arising out of the costs order made by Revelas J. It is necessary to point out that, although no trade union was cited as a party to the applicants’ application, the applicants were assisted in bringing the application by a trade union known as the National Entitled Workers Union. At the hearing of the matter before Revelas J they were represented by an official of that union. In due course a bill of costs was presented to the Taxing Master of this Court. After hearing Mr Maluleke, a union official who represented the applicants, the Taxing Master disallowed certain items in the Bill of Costs and granted others. In terms of the stated case all the items which were disallowed were not for disbursements but for fees which Mr Maluleke argued he was entitled to charge for doing the matter for the applicants. In the light of this the question which this review raises is therefore whether or not a union official is entitled to charge fees when he does a matter for members of his union.

Mr Maluleke’s argument is that he has actually rendered services to the applicants in the same manner that an attorney would have rendered them if the applicants had been represented by an attorney. He contends that just as he, like an attorney, has a right of audience in the Labour Court albeit qua union official, he is entitled to fees for his services and his member is entitled to recover fees for such services from the unsuccessful party. He submits that the Taxing Master was wrong in not allowing the items relating to his fees just because he “is not labelled an attorney” even though he has actually rendered the services which an attorney would have rendered.

In the stated case the Taxing Master says the Bill was taxed in terms of Rule 70 of the Superior Court Practice as prescribed by Rule 24(3) of the Labour Court Rules. In terms of rule 24(3) of the rules of the Labour Court the tariff to be used in the taxation of a Bill of Costs is the tariff applicable in the High Court if none has been determined either by agreement or by an order of Court. Rule 24(1) of the Labour Court rules provides : “The fees of one advocate and one attorney may be allowed between party and party, unless the Court on application authorises the fees of additional advocates and attorneys.” Rule 25(2) says : “The Taxing Master is empowered to tax any bill of costs for services actually rendered in connection with proceedings in the Court.” Rule 70(1)(a) says : “The Taxing Master shall be competent to tax any bill of costs for services actually rendered by an attorney in his capacity as such in connection with litigious work and such bill shall be taxed subject to the provisions of subrule (5), in accordance with provisions of the appended tariff . . . .”

The Taxing Master ruled that in terms of Rule 70 the fees that Mr Maluleke sought to include in the bill could only be allowed if he had been an attorney. I agree with the Taxing Master. It is quite clear from a reading of the provisions of Rule 70 that Mr Maluleke, not being an attorney, is not entitled to recover such fees from the losing party. It seems to me that Mr Maluleke now seeks to charge fees for his services in the same way as would an attorney. In this regard the provisions of sec 82(8)(a)(v) of the Attorneys Act, 1979 is relevant. It says :-

“Any person, except a practising practitioner, who for or in expectation of any fee, gain or reward, direct or indirect, to himself or to any other person, draws up or prepares or causes to be drawn up or prepared any of the following documents, namely-

(v) any instrument or document relating to or required or intended for use in any action, suit or other proceeding in a Court of civil jurisdiction within the republic, shall be guilty of an offence and on conviction liable in respect of each offence to a fine not exceeding R2000 and in default of payment thereof to imprisonment not exceeding six months.”

Those who wish to practise the profession of attorney go through much trouble to qualify themselves as such. This includes the years they spend studying as well as the period of articles of clerkship which they have to serve. They get trained in the attorney’s profession. They must also pass a professional examination and be fit and proper persons to be admitted into the attorney’s profession before they can be admitted as attorneys. In addition to this once a person has been admitted as an attorney, he/she carries an enormous responsibility both to his clients and the public. An attorney must keep a trust account and is subject to the supervision of the law society and the High Court. He is a member of the law society of the province where he/she practises and is an officer of the Court. If members of the public have complaints against an attorney, they have redress. Attormeys are entitled to charge fees for their services. Mr Maluleke is not an attorney and is not subject to all this. He is therefore not entitled to charge fees as if he was an attorney. It does not matter that as a union official he may have a right of audience in this Court. That does not make him an attorney nor does that confer on him a right to charge fees in the same way as attorneys do.

In the result I uphold the decision of the Taxing Master in disallowing the items that he disallowed in the bill of Costs and the review application is

dismissed.

R. M. M. ZONDO

Judge : Labour Court of S. A.

Date of Judgement : 07 August 1998