Cost awards in labour litigation

Abstract

There is no denying that the issue of cost allocation in labour litigation has generally attracted scant scholarly attention. Costs awards play an overarching role in the vindication of constitutional and statutory labour rights. By implication, the advancement of social justice. Section 162 of the Labour Relations Act 66 of 1995 underscores the proposition that in the exercise of judicial discretion as to costs in labour litigation, the chief consideration is striking a fair balance between not duly discouraging workers, employees, unions and employers’ organisations from approaching the labour dispute resolution fora to have their disputes dealt with on the one hand, and deterring parties from engaging in vexatious or frivolous litigation, on the other. A critical aspect of the inquiry is the juridical link between the approach to cost orders in labour dispute settlement and constitutional litigation. The study also explores parallel developments in the United Kingdom. Drawing from case law in which litigants have been mulcted with costs for amongst others, the study identifies new dimensions and questions on the outlook of contemporary labour practice. The study argues that the imposition of punitive cost awards against trade unions in circumstances of violent strikes can operate as one of the effective tools against resort to strike violence.