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The Constitutional Court found that this rule of practice does not automatically
govern the making of orders of costs in the Labour Court or Labour Appeal
Court as the relevant statutory provision outlined in the Labour Relations Act
66 of 1995 requires that orders of costs in the Labour Courts are to be made in
accordance with the requirements of the law and fairness.
This means that our Labour Courts, when considering the making of a cost
order, must seek to strike a fair balance between on the one hand, not unduly
discouraging workers, employers, trade unions and employers’ organisations
from approaching the Labour Courts and on the other hand, limiting parties
to bring frivolous cases to the Labour Courts that should not be heard. This
means that our Labour Courts have a discretion, whereby they must take
considerations, such as amongst others, law and fairness, into account when
considering whether a cost order should be awarded or not, and not simply let
the costs follow the result.

It accordingly does open the door for the possibility that even if successful, a party
may not be able to recover its costs from the other party. Our recommendation
is to discuss the risk of this with your attorney before deciding to proceed with a
Labour review application to the Labour Court.

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