Justice has a cost and, for the poor — those most intended to be protected by the Constitution — the price of litigating means they do not get to court and are unrepresented.
The Commercial, Stevedoring, Agricultural and Allied Workers Union (CSAAWU), assisted by the Socio-Economic Rights Institute of South Africa, is asking the Constitutional Court to overturn two cost order decisions against the union that represents poorly paid farmworkers.
The main argument, says legal counsel Bhavna Ramji, is that the R600 000 cost order stemming from two Labour Court cases the union lost in 2014 will financially cripple the union. If an abattoir case is included the cost orders against the union rise to well over R1-million. This does not include the union’s previous legal fees.
This will deprive Cape farmworkers in “a notoriously abused sector” of a union to represent them. A 2011 study by Human Rights Watch, cited by GroundUp, found that only 3% of farmworkers were represented by a trade union in the Western Cape.
At the heart of the issue, says Ramji, is the right of workers to be represented. “Already the orders have undermined the union’s credibility on these farms, making it very difficult for the union representatives to interact with the farmers,” she said.
The cases in this matter involve two Boland farms, Steytler Boerdery and La Maison, and stem from a wave of unprotected strikes that took place during 2012 and 2013 over the minimum wage, which at the time was R69 a day. It led to the minimum wage being raised by the government to R105 a day.
The costs order, the court documents contend, is more than 14 times the monthly subscriptions collected from the union’s members.
Ramji said: “CSAAWU is independent and unaffiliated. It was founded to protect and advance the interests of farmworkers in the Western Cape. The union is active chiefly on farms and in agriculture-related industries in the Boland area — its members are among the most disadvantaged and underrepresented workers in the country.
“They are manual labourers, casual workers, factory workers and other employees who generally occupy the lowest rung of the labour force.”
CSAAWU also represented the 37 families of the miners killed in the Marikana shootings.
Ramji said: “It cannot be disputed that its organising work in the Boland and beyond is of the utmost value and public importance.”
The loss of the union would also “discourage access to the labour dispute resolution apparatus in future for many marginalised workers”.
The union’s appeals to the Labour Court against the costs orders were rejected. On June 19 this year the union then applied to the Constitutional Court for leave to appeal against the cost orders.
In papers before the Constitutional Court, the union argues that the Labour Court relied on common law in awarding costs to the union as the loser and did not take into -consideration critical questions relating to the awarding of costs considered labour law:
•?Whether the unsuccessful party acted in good faith;
•?The right to fair justice through the Commission for Conciliation, Mediation and Arbitration (CCMA)and Labour Courts; and
•?Whether a costs award would discourage workers from using these avenues in the future.
It cites among others a Constitutional Court ruling, Biowatch Trust vs Registrar Genetic Resources, an unfair dismissal case, in which it held that, where an appeal against a costs award raises other questions relating to public interest, the interests of justice will demand that it be entertained.
Ramji said: “We believe the matters being discussed here [the Steytler Boerdery and La Maison cases] are of great constitutional relevance and deserve to be considered.”
Labour Court Judge Anton Steenkamp in his judgments, both his initial findings and in refusing their cost order appeals, was critical of the union for having applied eight months late for an appeal against the cost order.
The court papers said the union had done so because it had not been advised by its previous counsel that it could appeal on the costs issue alone.
Steenkamp also said the union’s members had displayed an “intransigent” and reckless attitude in participating in an unprotected strike.
The union argues that participation in an unprotected strike is not a factor that the court should consider when ordering costs.
In the Steytler case there was some confusion, with the union approaching the CCMA too early on the grounds of unfair dismissal after workers were locked out, ahead of a disciplinary hearing. Ten of the 11 staff were later reinstated.
Legal teams for both farm owners, David Steytler and Philip du Toit, concede that the union was initially ill-advised.
Only Judge Steenkamp’s decision to award costs against the union is in dispute and not the Labour Court judgments, which ultimately found the workers’ dismissals substantially and procedurally fair.
Legal counsel for the two farm owners disagree that the matter has any constitutional relevance, arguing that they have also outlaid legal fees and wasted time they can ill afford while the union has embarked on the cases in the Labour Court and appeal actions.
In addition, the farmers’ counsel now have to prepare for further action in the Constitutional Court.
The farm owners’ court documents dispute the union’s financial position, yet concede that it undertook fundraising in a bid to cover its legal fees. The union raised R150 000, but lawyers for the farmers say they were never given access to the union’s financial records.
The union argues in its submission to the Constitutional Court that it was never given an opportunity to do so: “It is well established that, in labour disputes, the ability of an unsuccessful party to satisfy a costs order is a material consideration which must be taken into account in the exercise of the court’s discretion.
“However, Steenkamp J did not ask whether CSAAWU could actually afford La Maison’s costs and did not call for evidence to be led in this regard.”
It said the R367 400 it would be required to pay for the La Maison costs is more than 60% of its total annual income for the financial year ending 2013.